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[2012] ZAGPPHC 39
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Weinberg v National Commissioner of Safety & Security and Others (22072/06) [2012] ZAGPPHC 39 (21 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
Date:
2012-02-21
Case
Number: 22072/06
In
the matter between:
STEVEN
WEINBERG
......................................................................................................
Plaintiff
and
THE
NATIONAL COMMISSIONER OF SAFETY
&
SECURITY
.......................................................................................................
First
Defendant
VICTOR
BOOYENS
......................................................................................
Second
Defendant
ESIAS
JOHANNES
ROUX
.................................................................................
Third
Defendant
JUDGMENT
SOUTHWOOD
J
[1]
This is an action for damages for unlawful arrest and detention in
which the plaintiff claims payment of the sum of R247 942,15.
The
plaintiff claims this amount because of his unlawful arrest and
detention on the 27th of May 2005. The plaintiff seeks relief
against
the first and third defendants only. The plaintiff is not persisting
in his claim against the second defendant.
[2]
When the matter was called the first and third defendant's counsel
applied for a postponement and tendered the wasted costs.
After
argument the application for postponement was dismissed and the trial
proceeded. Before evidence was led, the first and third
defendant's
counsel formally admitted that they are liable for all the damages
which the plaintiff can prove. The matter therefore
proceeded on the
question of quantum of damage only.
[3]
The plaintiff testified and called his attorney, Jerome Levitz, to
give evidence. Their evidence was not seriously disputed
and there is
no reason not to accept it. The defendants did not tender any
evidence.
[4]
The plaintiff's evidence can be summarised as follows: On 27 May 2005
he was 38 years old. He was employed as an IT consultant.
He married
in 1992 and he and his wife have four children who were aged 10, 8, 7
and 5 at the time. At about 16h30 on Friday 27
May 2005 two members
of the SAPS (one of them the third defendant) accompanied by the
second defendant, Victor Booyens, came to
the house which he rented
from Clive Best in Norwood, Johannesburg. The previous day the
plaintiff had been involved in an altercation
with Clive Best's
father, Ivan Best, and before the second defendant and the two
policemen arrived Clive Best had telephoned the
plaintiff to find out
whether he was at home. He gave no indication to the plaintiff that
the police would be coming to arrest
him. The police arrived in an
official SAPS van and the second defendant in his own vehicle. Clive
Best was also present. The four
men entered the house where they
found the plaintiff together with his wife and four children. The
plaintiff was taken aback when
he saw the policemen and asked what
was happening. The second defendant took charge and instructed the
policemen what to do. The
policemen told the plaintiff that he was
under arrest. The plaintiff offered to accompany them voluntarily and
asked that the matter
be postponed to Sunday as the Jewish Sabbath
was about to commence. The policemen ignored the plaintiff's pleas
and grabbed him
and turned him around and handcuffed his hands. They
then pulled the plaintiff out of the house to the van. The plaintiff
climbed
into the back of the van. The policemen then took him to
Norwood police station. When they took him out of the house to the
van
this took place in full view of passers-by. There were 20-30
members of the Jewish community on their way to the synagogue who
witnessed the plaintiff being taken to the police van by the police.
He experienced this as very degrading and distressing for a
number of
reasons. One was that he had recently returned from Australia and was
struggling to re-establish himself in Johannesburg.
He considered
this to reflect adversely on his character.
[5]
The police took the plaintiff to Norwood police station and the
plaintiff's wife and children followed in their car. At the
police
station the policemen took the plaintiff to an office and it seems
that they questioned him there. The plaintiff asked for
something to
drink and they gave him water in a dirty glass. He was not allowed to
speak to his wife and children. The plaintiff
was then taken to a
general holding cell where there were two other men present. They
appeared to be common labourers. The police
told the plaintiff that
they would oppose an application for bail. There was no toilet in the
cell and there were a couple of blankets
lying on the floor. The
plaintiff was not able to go to the toilet. The police took him back
to the office after a couple of hours.
The plaintiff needed to pass
water and the policemen told him to urinate in a drain about 30
metres away. No attempt was made to
show him to a toilet.
[6]
The plaintiff's wife made contact with the plaintiffs attorney,
Jerome Levitz, ana instructed him to apply for bail. A bail
hearing
was arranged at the Johannesburg magistrates' court. After
handcuffing the plaintiff, the policemen put him into their
van and
drove him to court. The hearing took place at about 11 pm that night.
The court granted bail but the plaintiff was not
immediately
released. Instead the police again handcuffed him and took him back
to Norwood police station. There the plaintiff
was required to sign a
document - he does not know what it was - and only then was he
released. One of the bail conditions was
that he was not allowed to
return to his rental accommodation. The plaintiff left the police
station some time between midnight
and 1 am in the morning.
[7]
The plaintiff experienced the arrest and detention as an egregious
violation of his privacy and dignity. He was arrested in
his own home
in front of his wife and children and he was then taken from his home
to a police van in full view of 20-30 members
of his community. He
was placed in a holding cell with the general population and he was
not treated with any respect or dignity.
Water was given to him in an
unwashed glass and he was not permitted to urinate in a toilet. The
plaintiff considers that his good
name suffered when he was taken
away by the police in full view of the public.
[8]
The plaintiff was traumatised by the experience and he has found that
his personality has changed. Before the incident he was
easygoing and
genial with clients but afterwards he was not able to deal with them
in the same way. He became more reserved and
he consulted a
psychologist for therapy. He attended 12-15 sessions but eventually
felt that he had recovered enough and that the
sessions were too
disruptive so he stopped them. The plaintiff also experienced great
concern for what his wife and children were
going through. The school
counsellor has had to counsel his children and his wife has not dealt
with the incident very well.
[9]
The plaintiff was charged in the Johannesburg magistrates' court with
assault with intent to do grievous bodily harm and he
was represented
by an advocate instructed by Mr. Levitz. The trial lasted two days
and the plaintiff was acquitted. According to
the plaintiff the
magistrate acquitted him because the state's evidence given by the
second defendant and the complainant, Ivan
Best, was illogical and
inconsistent. The total costs of the plaintiff's defence was R47
942,15.
[10]
The plaintiff's counsel seeks an award of damages for the unlawful
arrest and detention of the plaintiff of between R50 000
and R75 000.
He relies on a number of cases which indicate that the range of
awards for such cases is somewhere between R50 000
and R95 000. See
e.g. Olivier v Minister of Safety and Security
2009 (3) SA 434
(W);
Van Rensburg v City of Johannesburg
2009 (2) SA 101
(W); PJ Cornelius
v Minister of Safety and Security SEP Case Number A3065/2010 22
September 2011; Craig Ridgard v Minister of Safety
and Security and
Another NGP Case Number 4291/2007 17 August 2009. The plaintiff's
counsel contends that it is an aggravating feature
of the case that
the police arrested the plaintiff just before the commencement of the
Sabbath after the plaintiff had indicated
that he would accompany
them voluntarily and undertook to report to the police on the Sunday.
I agree.
[11]
In view of the authorities relating to the awards of damages for
unlawful arrest and detention I am of the view that the award
in this
case should be R75 000 which would properly compensate the plaintiff
for the iniuria. In my view the circumstances of the
arrest were
insulting, degrading and demeaning. It is not in dispute that the
plaintiff is entitled to the legal costs which he
incurred. See
Ridgard's case p6.
[12]
The plaintiff's counsel seeks costs on the scale as between attorney
and client because of the manner in which the defendants
have
conducted the litigation. The plaintiff's counsel contends that the
defendants prolonged this case when they clearly had no
defence. The
failure of the defendants to have witnesses available on both
occasions when the case came to court is worthy of note.
In my view
this conduct is properly characterised as vexatious within the
meaning given to that term in In re Alluvial Creek Ltd
1929 CPD 532
at 535 and Johannesburg City Council v Television and Electrical
Distributors (Pty) Ltd and Another
1997 (1) SA 157
(A) at 177D-F.
[13]
I make the following order:
The
first and third defendants, jointly and severally, the one paying the
other to be absolved, are ordered to pay to the plaintiff
the sum of
R122 942,15 together with interest thereon from the date of this
order calculated at the rate of 15,5 % per annum to
date of payment;
The
first and third defendants, jointly and severally, the one paying the
other to be absolved, are ordered to pay to the plaintiff
the costs
of this action on the scale as between attorney and client.
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
CASE
NO: 22072/06
HEARD
ON: 16 February 2012
FOR
THE PLAINTIFF: ADV. G. BEYTEL
INSTRUCTED
BY: Fluxmans Inc.
FOR
THE DEFENDANT: ADV. M.M. ZONDI
INSTRUCTED
BY: State Attorney, Johannesburg
DATE
OF JUDGMENT: 21 February 2012