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2012
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[2012] ZAGPPHC 221
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Olivier v Minister of Police (5430/11) [2012] ZAGPPHC 221 (14 September 2012)
Not
Reportable
In
the Northern Gauteng High Court (Held at Pretoria)
CASE
NO.:5430/11
DATE:14/09/2012
In
the matter between:
Basil
Olivier
.............................................................
Plaintiff
and
Minister
of Police
...................................................
Defendant
Judgment
Introduc
t
ion:
1
The Plaintiff issued Summons against the Defendant claiming damages
for unlawful arrest, detention and deprivation of freedom
and
contemelia and discomfort. The total amount claimed is R260 000.00.
2.
The parties agreed at the beginning of the hearing that:
2.1
the arrest and detention was not in dispute;
2.2
the only dispute was quantum.
3.
Adv. Dredge for the Plaintiff called the Plaintiff to testify in
support of his claim.
4.
He briefly stated that:
4.1
he is 31 years old. Currently unemployed. He was a security Guard
when he was arrested on 06
th
March 2008 at about I9h00 and
he was released the following day at about l0h00;
4.2
that the cell he was kept in was not big enough and they were many.
The floor was wet, water ran on the floor. The blankets
were dirty.
He said he sat there and said nothing lest he offended other
prisoners who were in the cell, who he said were gang
members;
4.3
he said the experience was bad;
5.
He felt he needed to be paid damages as he had claimed;
6.
Adv. Dredge referred me to a number of decided cases in support of
the claim the Plaintiff made, so too did Adv. Nonyane who
in
distinction argued that the claim by the Plaintiff is far out of the
trend of similar cases.
7.
Both parties in the case agreed that I do not have to determine the
lawfulness or otherwise of the arrest and detention, the
only issue I
have to deal with is:
7.1
what is the appropriate award in terms of damages as a lump sum in
the circumstances of this case;
8.
Both Mr. Dredge and Mr. Nonyane seem to have assumed that the arrest
and detention of Mr. Olivier was unlawful, in terms of this
assumption, both seems to have accepted that
the exercise of a
discretion by the arrest officials was wrong.
I
do not share this assumption but I do not have to decide on this
point as it is not an issue here.
9.
Mr. Olivier was not just stopped and arrested. One would have
expected more from the Defendant since it had decided to oppose
the
claim.
10.
In the present case, Mr. Olivier was arrested and detained for a
period of about fifteen (15) hours. Mr. Olivier was a Security
Guard
at the time of his arrest. There was no evidence that he suffered any
specific degradation beyond what is inherent in being
arrested and
detained.
11.
in fact his previous arrest served to help him somewhat in that he
said he kept quite lest he offended other prisoners in the
cell.
12.
I have been invited by both Mr. Dredge and Mr. Nonyane to look at
previous decisions in deciding how much I should award to
Mr.
Olivier.
l
have indeed looked at the authorities they both provided me with and
I am very grateful to both as I found them very useful.
13.
As Nugent JA remarked in the case of The Minister of Safety and
Security v Seymour, at para 17.
"the
assessment of awards of genera! damages with reference to awards made
in previous case is fraught with difficulty. The
facts of a
particular case need to he looked at as a whole and few cases are
directly comparable. They are a useful guide to what
other Courts
have considered to he appropriate but they have no higher value than
that".
14.
Deprivation of liberty can never be restored by an award of
compensation. There is no empirical measure for such deprivation,
one
has to make a judgmental call.
Is
it not true that reasonable people can reasonably differ on matters
calling for value judgment without either losing their reasonabless?
15.
I am called to makea value judgment here. I am supposed to determine
how much a fifteen (15) hours detention of Mr Olivier is
worth in
monetory value.
It
is R260 000.00 or R15 000.00 as I heard arguments in this case.
16.
Adv. Dredge argued that l should not over-empmhasise the social
standing of Mr. Olivier in this case. He argued that Mr. Olivier
should be treated on the basis that the law says all are equal before
the courts.
17.
Adv. Dredge's argument is not very sound, equality before the law
does not refer to standing but treatment by law enforcers
or justice
system.
The
law does distinguish between individuals. The law recognises children
as different from adults, eg, without regarding one group
as less
human.
One's
standing in the community does influence an award of damages as
Seymour case above indicates.
18.
in the case of Rowan v Minister of Safety and Security the Court
referred to for example, circumstances of the Plaintiff's detention,
its nature and duration, his social and professional status, in
determining the appropriate award.
19.
in his own argument Adv. Dredge referred to the following cases to
establish a trend in awarding damages:
19.1
Minister of Safety and Security v Sekhoto;
19.2
Rowan \i Minister of Safety and Security;
19.3
Minister of Safety and Security v Seymour;
19.4
Louw and Another v Minister of safety and Security;
19.5
Killian v Minister of Safety and Security;
19.6
Swammers and Another v Minister of Safety and Security;
19.7
Murrell and Another v Minister of Safety and Security.
20.
None of the above cases holds that standing or status in the
community is a factor to be ignored in determining an appropriate
award for a claim of damages.
Why
should l ignore Mr. Olivier's status and his occupation in this case.
21.
Mr. Nonyane referred to cases cited by Applicant's Counsel and
distinguished them from the present case but emphasised that
in all
the cited cases the social standing and the profession of the
arrested person were issues considered in award damages.
22.
He then specifically referred to the following cases to establish a
trend:
22.1
Minister of Safety and Security v Bhengu;
22.2
Greenberg v Re Beer and Another;
22.3
Fubesi v Minister of Safety Security
22.4
Hoco v Mtekwana.
23.
I have earlier indicated that arrest and detention deprives one of
his / her liberty but this deprivation cannot mechanically
be
computed, one tries to sooth or restore something that cannot be
restored, one may just try to satisfy injured feeling.
2.4
This arrest and detention took place in 2008 March, this is a factor
I have to include in the mix.
25.
There is another little question of why the claim was not lodged at
the Magistrate Court. This of course is a consideration
in awarding
costs.
ORDER
26.
The following order is made:
(i)
The Defendant is ordered to pay the Plaintiff the sum of thirty
thousand (R30 000.00) rand as damages;
(ii)
The Defendant is ordered to pay Plaintiff costs of suit on the
appropriate Magistrates Court's scale including Counsel's fees
on the
scale of High Court.
Case
No: 5430/11
Heard
on 30 August 2012
For
the Plaintiff: Adv. C. M. Dredge
instructed
by : J.B. Grimbeek Van Zyl Le Roux Inc.
For
the Defendant :Adv. P. Nonyane
instructed
by : State Attorey's Office, Pretoria
Date
of Judgment : 2012. 09. 06