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[2012] ZAGPPHC 59
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Wagner v Minister of Defence (46923/2010) [2012] ZAGPPHC 59 (19 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 46923/2010
DATE:
19/04/2012
In
the matter between:
WAGNER
PIETER
JOHANNES
.......................................................................................
Plaintiff
and
THE
MINISTER OF
DEFENCE
...................................................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
The plaintiff initially issued summons containing three claims
against the defendant. The first for malicious prosecution,
alternatively wrongful arrest and detention, the second for wrongful
arrest and detention and the third being rei vindicatio for
the
return of digital camera and its accessories. At the commencement of
the hearing, the parties informed me that the third claim
of the
action was not being proceeded with. Apparently the camera and its
accessories had been returned to the plaintiff.
[2]
As a result, the action proceeded on the first and second claims. The
claims arise from two different incidents namely 26 June
2009 and 16
July 2009 during which the plaintiff was arrested at the premises of
the National Air force base in Waterkloof, Pretoria
and detained. The
plaintiff was employed by Denel as an engineer. Denel has its offices
at the premises of the National Air Force
base. The merits of these
two claims have been conceded by the defendant, i.e the defendant has
admitted the wrongfulness of the
arrest and the unlawfulness of the
detention in both claims. The only issue remaining is to determine an
appropriate amount of
damages to be awarded to the plaintiff.
[3]
No evidence was led with regard to the amount of damages. Counsel for
the plaintiff merely placed the following on record from
the Bar. The
plaintiff is 47 years old, married, with three children. He is a
mechanical engineer who was employed by Denel. !t
was also confirmed
that R25 000 had been agreed upon in respect of legal fees incurred
by the plaintiff in defending himself pursuant
to his arrest in the
first claim. A bundle of documents containing statements made by
various military police officials and the
plaintiff, pursuant to the
two incidents, was handed up by agreement. I will endeavour to
extract the objective and non-contentious
facts from the bundle.
The
first incident
[4]
On 26 June 2009 at the premises of the National Air Force base, at
approximately 7H45, the plaintiff was involved in a motor
vehicle
accident during which he reversed into and drove over a leg of one of
the military police officers. The incident happened
when the officer
was trying to clear the road for a morning parade and requested the
plaintiff to move out of the way of the parade.
According to the
officers who witnessed the incident, the plaintiff caused the
accident intentionally, and was arrogant and dismissive,
both before
and after the incident. The plaintiff, on the other hand, states that
the incident was purely accidental as he had
no intention of injuring
the officer. He was arrested later that day at a barber shop at
approximately 12H00 and released on bail
at approximately 19h35 the
same day. After a few appearances in court, charges were ultimately
withdrawn against him.
The
second incident
[5]
With regard to the second incident on 16 July 2009, it appears that
the plaintiff was arrested for taking pictures of the military
air
force premises. Upon his arrest he was taken to the military police
station, where an unknown warrant officer, in the presence
of other
individuals, used words to the effect that the plaintiff was a bad
person and that he was previously arrested. An unknown
warrant
officer grabbed him around his neck, pushed htm against a corner,
throttled him and threatened to assault him. He was released
without
being charged later the afternoon of the same day.
[6]
There is no indication on the pleadings or in the bundle of documents
as to the duration of the second detention. Counsel for
the plaintiff
merely stated from the bar that the plaintiff had been detained for
"5% hours". This is a very unsatisfactory
manner of placing
important facts before the court. The duration of detention is a key
consideration when quantum has to be assessed.
[7]
There is no reason placed before court why the plaintiff did not have
to testify. The end result is that I have scanty information
from
which 1 should make deductions as to the facts. This is an
unacceptable practice which should be discouraged. During the hearing
neither counsel referred me to any of the documents contained in the
bundle. I was not informed what the status of those documents
were:
whether they merely were handed for what they purported to be, or
whether their contents were admitted. I would, for this
judgment,
assume the latter, in favour of the plaintiff.
[8]
The proper approach to assessment of damages in matters such as the
present includes evaluation of the personal circumstances
of the
plaintiff, the circumstances around the arrest, as well as the nature
and duration of the detention. See Ngcobo v Minister
of Police
1978
(4) SA 930
(D) at 935B-F. To achieve that balanced assessment in the
present case, one has to take into account, the plaintiffs experience
while in detention, the state of the cell in which he was
kept-whether it was clean or filthy; or overcrowded; whether there
were
basic ablution facilities etc. In the present case, all I have
is very scant personal particulars of the plaintiff and the duration
of the detention in the first incident.
[9]
That fact, however, is no reason for the court to adopt "a non
possumus attitude" and make no award. See Hersman v
Shapiro &
Co
1926 TPD 367
at 379 where Stratford J said:
"Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the
evidence before it.
There are cases where the assessment by the Court is little more than
an estimate; but even so, if it is certain
that pecuniary damages has
been suffered, the Court is bound to award damages."
See
also Southern Association v Bailey
1984 (1) SA 98
(A) at 114A and
Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A) at
451B-C.
[10]
I will therefore endeavour to do the best for the plaintiff with the
very limited information available. ! will among others,
derive
guidance from past awards in comparable cases. While doing that, l
will bear in mind that, the determination of an appropriate
amount of
damages is largely a matter of discretion, and that the process of
comparison is not a meticulous examination of awards,
and should not
interfere upon the court's general discretion: Protea Assurance v
Lamb
1971 (1) SA 530
(A) at 535B-536A and Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) paras 17 and 18. The purpose
is to compensate a claimant for deprivation of personal liberty and
freedom and the attendant
mental anguish and distress. In Minister of
Safety and Security v Tyulu
2009 (5) SA 85
(SCA) para 26 it was
emphasised that the primary purpose was "not to enrich the
claimant but to offer him or her some much-needed
solatium for his or
her injured feelings".
[11]
In Olivier v Minister of Safety and Security and Another 2009(3) SA
434 (W), a superintendent in the SAPS was wrongfully arrested
for
theft. The arrest took place in full view of his colleagues. His
office and home were searched, the latter in the presence
of his wife
and children. The arrest caused him embarrassment and distress. The
detention comprised of some five or six hours in
all. He further
suffered the indignity of having to appear in court on three
occasions as an accused. The plaintiff was not placed
in a cell or
handcuffed. R50 000 was awarded as damages.
[12]
In Seymour, a 63 year old small scale farmer who suffered from
high-blood pressure was detained for five days. He fell ill
the
morning following the arrest, experiencing chest pains. On appeal,
the Supreme Court of Appeal reduced the amount of R500 000
awarded by
the High Court to R90 000. In arriving at the amount of damages, the
SCA restated the general principles applicable
in assessment of
general damages and considered past awards, as well as the
devaluation of currency. The court found that throughout
his
detention Seymour suffered no degradation beyond that that inherent
in being arrested and detained. In Tyulu, a magistrate
was awarded
R15 000 for a 15 minutes detention. The appeal to the SCA was brought
by the Minister after the Full Court had awarded
him R50 000. The SCA
into account the relatively short duration of the detention, the
appellant's standing in the community and
the manner in which he was
arrested.
[13]
In Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino
2000 (4) SA 68
(W), a 45 year old businesswoman was detained for
approximately four hours at a casino, on suspicion of contravening
regulations
promulgated under the Gauteng Gambling Act. She was
awarded R12 000. I have also considered further two older cases:
Stapelberg
v Afdelingsraad van die Kaap
1988 (4) SA 875
(C), and
Areff v Minister van Polisie
1977 (2) SA 900
(A). In Stapelberg, a
young attorney on honeymoon in Cape Town, was assaulted by a traffic
inspector and then detained for two
hours. He was awarded R10 000. In
Areff a businessman was detained for two hours, purportedly for
contempt of court after he had
torn up a summons. He was subjected to
the humiliation of being fingerprinted. He was awarded R1 000 in
1977, translating into
R31 000, according to RJ Koch The Quantum Year
Book (2011).
[14]
Whether the arrest was malicious or not, is an important
consideration in the assessment of damages. In Masisi v Minister of
Safety and Security
2011 (2) SACR 262
<GNP) this court held that
where the arrest was malicious, the plaintiff would be entitled to a
higher amount of damages than
would be awarded, absent malice. The
court awarded R65 000 to the plaintiff who had been detained for over
4 hours. See also Van
Rensburg v City of Johannesburg
2009 (2) SA 101
(W), where a 74 year old retired accountant was detained for
approximately 7 hours by the members of the Johannesburg Metro Police
Division (JMPD) for unpaid traffic fines. He was awarded R75 000
after the Court found the conduct of the metro police officers
unreasonable and reprehensible in refusing to explain to the
plaintiff the reason for his arrest, and in not affording him an
opportunity to explain, and not verifying the facts before detaining
him.
[15]
It seems to me there was no malice on the part of the military police
in having the plaintiff arrested, in both incidents.
In the first
incident he had, in their subjective view, deliberately drove over
the leg of one of their colleagues. Apparently
he did not even offer
assistance to the injured officer - he simply drove off. In the
second incident plaintiff was arrested for
apparently taking pictures
of the military air force premises. He says he was taking only a
picture of a vehicle illegally parked
on the premises, in order to
report is to the traffic authorities. However, this is not borne out
by the objective evidence. In
the bundle of documents handed up there
are 13 photos, depicting various areas of the premises from different
angles, it appears
therefore, that in both incidents, the plaintiff
was not entirely an innocent party.
[16]
Having regard to all the facts and circumstances of the present case,
the relatively short duration of the detention in both
incidents,
lack of sufficient details on the conditions of the detentions, lack
of malice on the part of the officers, I am of
the view that amounts
of R40 000 and R20 000 for claims 1 and 2 respectively, would
suffice. The amounts to be awarded fall comfortably
within the
jurisdictional limit of the Magistrate Court. However, in the
exercise of my discretion, I will allow costs on the High
Court
scale, it could not have been clear when summons was issued that the
amounts to be awarded would be within the magistrate's
court limit.
[17]
With regard to the amount agreed upon for legal fees, I am not bound
thereby. The fees appear to be excessive. We are dealing
here with
tax-payers' money and prudence is called for. I intend to refer the
legal bill to the Law Society of the Northern Provinces'
non-litigious committee for assessment.
[18]
The following order is therefore made:
1.
The defendant is ordered to pay the plaintiff as follows:
1.1
In claim 1, an amount of R40 000;
1.2
In claim 2, an amount of R20 000.
2.
Interest on the above amounts at 15.5% per annum from date of this
judgment until final payment;
3.
The plaintiff is ordered to refer his attorney's account, pursuant to
the criminal charges, to the non-litigious committee of
the Law
Society of the Northern Provinces for assessment, and the amount so
assessed, shall become due and payable upon such assessment;
4.
The defendant is ordered to pay the costs of the suit.
TM
Makgoka
Judge
of the High Court
Date
Heard : 2 December 2011
Judgment
Delivered : 19 April 2012
For
the Plaintiff : Adv W J Botha
Instructed
by : Savage Jooste & Adams Inc, Pretoria
For
the Defendant : Adv l Pillay
Instructed
by : State Attorney, Pretoria