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2012
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[2012] ZAGPPHC 322
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Minister of Safety & Security v Savhasa and Another (A478/11) [2012] ZAGPPHC 322 (29 November 2012)
NOT
REPORTABLE
IN THE HIGH OF SOUTH AFRICA (NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE No: A478/11
DATE:
29/11/2012
In
the matter between:
THE
MINISTER OF SAFETY &
SECURITY
.........................................................
APPELLANT
AND
HUMBULANI THOMAS
SAVHASA
.......................................................
FIRST
RESPONDENT
EDWARD
RUDZANI RAKHUNWANA
.............................................
SECOND
RESPONDENT
JUDGMENT
RANCHOD J
[1]
This is an appeal against the quantum of damages awarded to the
second respondent for his unlawful arrest and detention for
almost 4
days. The appeal is with the leave of the court a quo (Claassen J ).
A similar claim by the first respondent had been
dismissed.
[1]
It appeared that the appellant did not dispute liability to pay
damages, but only the quantum thereof in that the award of R300
000
was said to be excessive in the circumstances of the case. However,
during the hearing Appellant's counsel submitted that in
fact the
respondent was not entitled to any damages at all. I will revert to
this presently.
[2]
The facts giving rise to the claim for unlawful arrest and detention
have been set out in the judgement of the court a quo.
The two
respondents, although having different surnames, are apparently
brothers. They were arrested by a member of the South African
Police
Services, one Captain Shabangu, on 21 January 2007 at the Brixton
police station, allegedly for being in possession of a
suspected
stolen motor vehicle, and bribery. They were detained at the Brixton
police station from about 21h00 on Thursday night,
25 January 2007
until Monday morning 29 January 2007 when they were released after
the prosecutor declined to prosecute them. The
car that was involved
had been impounded and released only about one month later.
[3]
The first respondent says he bought a grey Mercedes Benz motor car a
few months earlier but could not register it in his own
name. Hence,
he registered it in the name of the second respondent. It is common
cause that the first respondent was sitting in
the car, which was
parked on a street in Hillbrow, Johannesburg. The police arrived and
inspected the vehicle. Captain Shabangu
found that the chassis number
of the vehicle had been tampered with by scratching out one numeral
and another one inserted in its
place. A tag which apparently
contained certain vehicle identification codes such as the chassis
number and engine number had also
been replaced. First respondent
telephoned the second respondent who arrived on the scene shortly
thereafter. He showed Shabangu
some invoices for the car as well as
its registration papers. Captain Shabangu's enquiries by radio with
the relative authorities
regarding the status of the vehicle elicited
the response that the vehicle had not been reported stolen. The
police were still
not convinced and took both the respondents to the
specialist vehicle identification section at the Brixton police
station where
a Warrant Officer Denenga confirmed Shabangu's
suspicion that something was wrong with the status of the vehicle and
required further
investigation. The vehicle was impounded and taken
to the police pound.
[4]
First respondent had testified that whilst they were in Hillbrow on
the Sunday, Shabangu had solicited a bribe of R2 500 to
'make the
problem go away' or else, said Shabangu, the vehicle would be
impounded. He alleged that he gave Shabangu R1 400, which
is all he
had at the time, with the balance to be given later. On the following
Tuesday he went to, it appears, the police vehicle
pound, with the
person from whom first respondent had bought the vehicle and it was
established that everything was in order as
far as the car was
concerned.
[5]
First respondent further testified that on the following Thursday, he
phoned Shabangu and asked that the R1 400 be refunded
to him as the
vehicle registration was in order. They arranged to meet at Brixton
police station where he expected to get his money
back. However, he
was arrested when he went there, at about 9 o'clock on the Thursday
night.
[6]
Shabangu denied that there was any bribery or attempted bribery on
the Sunday. He said that first respondent had offered him
money on
the Thursday evening at Brixton and in fact gave it to him, whereupon
he, Shabangu, arrested both first and second respondents
for being in
possession of a suspected stolen motor vehicle and what he termed
"extortion" - an apparent reference to
the bribe.
[7]
Claassen J dismissed first respondent's claim on the grounds that his
arrest was not unlawful as he was a participant in a corrupt
activity
in terms of the
Prevention and Combating of Corrupt Activities Act 12
of 2004
and was accordingly lawfully arrested, it being immaterial
whether Shabangu had solicited the bribe or first respondent had
offered
it. The learned judge found that the second defendant was not
a party to the bribery. Furthermore, second respondent was not in
possession of the motor vehicle at the relevant time as first
respondent was using it as a taxi, although it was registered in
second respondent's name. The court held that possession of a
suspected stolen vehicle is not one of the offences listed in
Schedule
1 to the
Criminal Procedure Act 51 of 1977
for which a
suspect could be arrested without a warrant. Therefore, second
respondent's arrest without a warrant and subsequent
detention was
unlawful. The learned Judge awarded him a globular sum of R300 000.00
in damages, which is the subject of the appeal
before us.
[8]
As I understood appellant's counsel's Heads of Argument, the second
respondent's damages should have been limited to a claim
for
emotional shock only. However, Mr Bofilatos stated at the
commencement of the hearing before us that that was not what was
intended and he accepted that second respondent's damages were
general damages in the broad sense (excluding special damages for
loss of income).
[9]
In his judgement the learned judge says:
"The
plaintiffs now claim that the arrest and the attachment of the
vehicle was unlawful and are claiming damages from the
defendant,
being the Minister of Safety and Security, for the wrongful arrest,
detention, prosecution and confiscation, and detention
of the vehicle
and also for pain and suffering, emotional shock, the deprivation of
liberty, invasion of privacy, intimidation,
loss of income,
impairment of dignity, deprivation of freedom of movement and
invasion of the right not to be deprived of freedom
of movement and
without just cause."
[10]
It is in my view clear from the record that the claim for damages was
not limited to emotional shock only and appellant's counsel's
concession was well made.
[11]
It was further submitted by appellant's counsel that it was agreed
between the parties that the conduct of the first respondent
was to
be imputed to the second respondent for purposes of assessing the
latter's quantum of damages. Hence, said appellant's counsel
during
the hearing of the appeal, that as the first respondent had
participated in an illegal activity, namely, transporting passengers
without the requisite permit to do so and having accepted a
solicitation for a bribe from a policeman, that the award by the
court
a quo to the second respondent should be set aside in toto,
alternatively reduced to nothing more than a solatium.
[12]
Respondents' counsel argued that the agreement between the parties
was simply that the personal circumstances of the first
respondent,
for example, his position in society, family circumstances,
employment and so forth wouid be imputed to the second
respondent and
used for assessing the amount of compensation for the latter's
unlawful arrest and detention. It was never contemplated
that if
first respondent's claim was dismissed because he was engaged in an
illegal activity, that that illegal activity would
be imputed to the
second respondent. From the record it does not appear that an
agreement had been made as contended for by appellant's
counsel. In
any event it would be a travesty of justice if the illegal activities
of the first respondent were to be visited upon
the second
respondent. Appellants' counsel submitted that the second respondent
was involved in the bribery. That is an aspect
of the merits of the
case. The court a quo dismissed first respondent's claim because it
was found that he was involved in the
bribery. Not so in the case of
the second respondent. The appellant has not appealed against the
finding of the court o quo on
this aspect on the merits. For all
these reasons I am of the view that appellant's submissions in this
regard cannot be sustained.
[13]
The learned judge in the court o quo considered the cases of Seymour
v Minister of Safety and Security 2006 (5) 495 (W) where
an amount of
R750,000 was awarded and also the case of Louw and Another versus
Minister of Safety and Security
2006 (2) SACR 178
(SEC) where, he
said, R70,000 was awarded for a single day's incarceration. Claassen
J also mentioned that he had, a week earlier,
awarded R90,000 to a
claimant for 7 V2 hours detention to a "very responsible
executive businessman, [who was arrested] in
front of clients, and
personnel. There was also medical aggravation present." However,
it must be noted that in the Seymour
matter the Supreme Court of
Appeal had subsequently drastically reduced the award to R90,000. In
that case, the claimant had been
detained for five days and there
were "certain medical complications and aggravating
circumstances present." The Louw
case was also decided before
the appeal court judgment in Seymour.
[14]
Claassen J awarded the second respondent in this matter before us an
amount of R300,000. The following personal circumstances
of the
second respondent were taken into account: The fact that the
respondent had a wife and children he had to support, that
he was
middle-aged, that he was a respectable, proper citizen, or 'does not
look like a criminal' and has a fair standing in life,
that his
freedom was taken away from Thursday night until Monday morning and
that the incarceration was in itself humiliating and
degrading to a
person. Furthermore, the fact that the arrest spanned a weekend when
the second respondent did not have normal access
to courts.
[15]
It is so that previous awards merely serve as guidelines and any
award made in a particular case will be dependent on its own
facts. I
have considered the submissions of both the appellant and
respondent's counsel and in particular have had regard to Seymour
and
the several cases cited therein with regard to quantum. I am of the
view that if one
takes
all factors into account, including the erosion in the value of money
an amount of R70,000 would be adequate compensation
in the
circumstances of this case.
[17]
The appellant has accordingly substantially succeeded in the appeal
and should be entitled to the costs of the appeal.
[18]
In the circumstances I would make the following order:
1.
The appeal is upheld in respect of the quantum of damages awarded to
the second respondent by the court a quo.
2.
The award of R300,000 in damages to the second respondent is set
aside and in its place is substituted the following:
'The
defendant is ordered to pay the second respondent an amount of
R70/000 together with interest at the statutory rate as from
the date
of judgment and costs/
3.
The costs of the appeal are to be paid by the second respondent.
4.
The dismissal of the first respondent's claim with costs is
confirmed.
N
RANCHOD
JUDGE
OF THE HIGH COURT
I
agree:
N
B TUCHTEN
JUDGE
OF THE HIGH COURT
I
agree:
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT