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[2011] ZAFSHC 132
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Steenbergen and Others v Minister of Safety and Security (1071/2003, 1072/2003) [2011] ZAFSHC 132 (21 July 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1071/2003
1072/2003
In the matter between:
H W STEENBERGEN
…...........................................................
First
Plaintiff
Z J CILLIERS
…...................................................................
Second
Plaintiff
J J A HILLS
….........................................................................
Third
Plaintiff
G J DE BEER
…....................................................................
Fourth
Plaintiff
N F VAN ZIJL
…........................................................................
Firth
Plaintiff
J N MEYER
….........................................................................
Sixth
Plaintiff
M A MYBURGH
…..............................................................
Seventh
Plaintiff
and
THE MINISTER OF
SAFETY & SECURITY
….............................
Defendant
JUDGMENT:
FISCHER, AJ
HEARD ON:
31 JANUARY, 1,2,3,4,8,9,10,11 FEBRUARY and 5 MAY 2011
_______________________________________________________
DELIVERED ON:
21 JULY 2011
_______________________________________________________
[1] The plaintiffs, in
two separate actions, claimed damages from the Minister of Safety and
Security, arising out of their alleged
unlawful arrest, detention,
malicious prosecution and defamation. The two actions were
subsequently consolidated and an order made
in terms of High Court
Rule 33(4) to the effect that all proceedings relating to the
determination of quantum be stayed until the
question of liability
had been disposed of.
[2] The trial then
proceeded before Kruger, J who, after hearing evidence over a five
day period, dismissed the plaintiff’s
claims for malicious
prosecution and defamation but found in favour of the plaintiffs as
regards the unlawful arrest and detention
and made the following
order:
“
1. The
arrest and detention of all the plaintiffs was unlawful.
The plaintiff’s claims for
malicious prosecution and defamation are dismissed.
Defendant is ordered to pay the
plaintiffs’ costs to date.”
[3] For reasons that are
irrelevant for purposes hereof, Kruger J played no further role in
the proceedings and the remaining question
relating to the
determination of damages was finally dealt with before me some five
years later. The inordinate delay in the finalisation
of the case
resulted from postponements which I will deal with later as they have
cost implications which need to be addressed.
[4] The damages claimed
by the seven plaintiffs arising out of the unlawful arrest and
detention vary from R1 250 000,00 to R2 000,00.
As I see it, the
correct approach to the assessment of damages for unlawful arrest and
detention is to have regard to all the relevant
facts and
circumstances of the case and then to determine the quantum of
damages with reference to such facts and circumstances
which will
include,
inter alia
, the age, sex, status, culture and life
style of a particular plaintiff, the plaintiff’s social and
professional standing
as well as the circumstances, nature and
duration of the arrest and detention and the publicity given thereto.
This however must
not be regarded as an exhaustive list of relevant
facts and circumstances as such will differ from case to case. (See
MINISTER OF SAFETY AND SECURITY v SEYMOUR
2006 (6) SA
320
(SCA) at 325 para 17;
RUDOLPH ROELOF AND OTHERS v MINISTER
OF SAFETY AND SECURITY AND ANOTHER
2009 (5) SA 94
(SCA) at
102 – 103, para [26] – [29];
MINISTER OF SAFETY AND
SECURITY v TYULU
2009 (5) SA 85
(SCA) at 93, par [26];
RAMAKULUKUSHA v COMMANDER, VENDA NATIONAL FORCE
1989
(2) SA 813
(VSC) at 847, par G – H.
[5] Practical
considerations dictate that each of the seven plaintiffs be dealt
with individually but that where facts and circumstances
overlap they
be dealt with jointly for ease of reference.
[6] The relevant facts of
the case are by no means complex and by and large not in dispute.
With the exception of the late G J de
Beer (he passed away pursuant
to which the executrix in his deceased estate was substituted as
plaintiff in his place and stead),
the other six plaintiffs were all
members of the South African Police Services stationed at Frankfort
in the Free State Province
at the time of their unlawful arrest and
detention. Superintendent Steenbergen (Steenbergen) was the Station
Commander at Frankfort
Police Station, Captain Van Zyjl (Van Zyjl)
the second in command and the head of the detective branch at
Frankfort Police Station
whilst Cilliers, Myburgh and Hills were
Inspectors and Meyer a Sergeant stationed at the Frankfort Police
Station. The late De
Beer (De Beer) was at the time in the employ of
the Mafube Municipality in Frankfort.
[7] Kruger J found that
early in April 2002 all the plaintiffs were arrested by employees of
the defendant acting in the course
and scope of their employment with
the defendant. All the arrests were made without warrants. The
plaintiffs were arrested on the
following dates:
Steenbergen, Cilliers and
De Beer on 3 April 2002;
Hills, Meyer and Myburgh
on 5 April 2002; and
Van Zyjl on 8 April 2002.
Steenbergen, Cilliers and
De Beer appeared in the Magistrate’s Court in Frankfort on 4
April 2002 where the Magistrate issued
a detention order pending
their bail application on 9 April 2002. Hills, Myburgh and Meyer
appeared in the same Magistrate’s
Court before the same
Magistrate on 8 April 2002 where a similar detention order was
issued. All the plaintiffs, except Cilliers,
were released on bail on
9 April 2002. Cilliers was finally released on bail on 17 April 2002
following a bail appeal to the High
Court in Bloemfontein.
[8] The undisputed facts
and circumstances as well as those not seriously challenged by Mr
Notshe, who appeared on behalf of the
defendant, may be summarised as
follows with regards to each plaintiff:
Cilliers
: He was a
33-year-old Superintendant stationed at Frankfort Police Station when
he was arrested at his home at approximately 7:45
on the morning of 3
April 2002 by several heavily armed members of the South African
Police Services, carrying R5 assault rifles,
shotguns and pistols.
The manner in which he was arrested at his home caused pandemonium as
his mother-in-law not only became involved
in a confrontation with
members of the police services but in addition thereto, his small
children shouted hysterically all the
while. His hands were tightly
hand-cuffed behind his back and he was taken in a convoy of police
vehicles to the Frankfort Police
Station. Steenbergen had already
been arrested and accompanied him in one of the other police
vehicles. At the Frankfort Police
Station, he was taken out of the
police vehicle and made to stand on the pavement for several minutes
in full view of many onlookers
and local residents whom he knew.
Shortly thereafter the convoy left Frankfort and drove to
Phuthaditjhaba (by this stage De Beer
had also been arrested and
accompanied Cilliers and Steenbergen in separate vehicles in the same
convoy).
[9] At Phuthaditjhaba,
some 180km from Frankfort, Cilliers was initially held in a holding
cell at the Phuthaditjhaba Police Station,
which can only be
described as a cage consisting of horizontal and vertical iron bars,
in full view of all persons entering and
leaving the charge office.
He was thereafter stripped of his belt and shoe-laces and taken to a
cell holding approximately 20 other
detained and awaiting trial
prisoners. He described the other cellmates as hardened criminals who
all the while smoked dagga and
were frequently supplied with more
thereof by members of the police services stationed at the police
station. He suffers from asthma
and at all times had great difficulty
breathing because of the dagga smoke, which irritated his lungs. Soon
after his arrival in
the cell he was forced by the other cellmates to
strip naked whereupon his clothing was searched for money and other
valuables.
The cell was described as unhygienic, dirty and stinking
with an open toilet wherein inmates relieved themselves from time to
time
in full view of others using a blanket in the process, as there
was no toilet paper. Cilliers was unable to physically relieve
himself because of the atrocious conditions and later on unable to
sleep, as no mattresses were available whilst a limited number
of
filthy smelly blankets were provided.
[10] He identified three
individuals in the cell as clearly occupying leadership positions and
they proceeded to interrogate him
as to the reasons for his
detention. He consequently and throughout his detention in the cell
feared for his life and was unable
either to eat or sleep. The
following morning he was advised that he would be taken to court
whereupon several of the other cellmates
proceeded to “groom”
him by combing his hair with a communal comb and obliging him to
brush his teeth with a communal
toothbrush. He felt obliged to play
along with the charade, as he all times feared that he would be
assaulted if he did not do
so. There was only cold water in the cell
and he was unable to shower. During the morning of 4 April 2002 he
was eventually removed
from the cell and placed in an overloaded
police vehicle full of other detainees and awaiting trial prisoners,
one of whom was
obliged to sit on his lap during the trip. He was
taken to the Phuthaditjhaba court cells where he was once again
detained in the
company of several dagga smoking cellmates for a
number of hours. Toward midday on 4 April 2002 he was eventually
taken from the
Phuthaditjhaba court cells and returned to the
Phuthaditjhaba Police Station shortly whereafter he, in the company
of Steenbergen
and De Beer was brought in a convoy of police vehicles
to Frankfort. He does not know, nor was he ever advised as to the
reason
for his removal to the Phuthaditjhaba court cells for several
hours earlier in the morning. He, Steenbergen and De Beer were
thereafter
brought before the Magistrate just after 14:00 who,
approximately one hour later, issued a detention order in terms of
section 50(1)
of the
Criminal Procedure Act, 51 of 1977
, pending
their bail application, which had in the interim been scheduled for 9
April 2002. The three were thereafter taken to the
Tweeling Police
Station where they were held in similar appalling conditions with
another detainee whose arrest and detention Cilliers
had been
instrumental in procuring several days earlier. On 9 April 2002
Cilliers was refused bail and ordered by the Magistrate
to remain in
custody as a result of which he suffered a nervous breakdown and,
following upon the intervention of a medical doctor,
taken to a
clinic in Frankfort where he was held under police guard. On Friday,
12 April 2002 the Magistrate in Frankfort ordered
that Cilliers be
transferred for observation to a hospital in Klerksdorp, but in
contravention of the order, he was held over the
weekend at Kroonstad
Prison, once again in appalling circumstances. He was eventually
taken to Klerksdorp on Monday, 15 April 2002
where he was detained
overnight in the Klerksdorp Prison in circumstances where he was
exposed to assaults including sodomy by
certain cellmates on others.
In the early hours of Tuesday, 16 April 2002 he was instructed by
cellmates to polish the cell floor
and verbally abused and insulted
in the process. He was finally taken to the Klerksdorp Hospital on
Tuesday, 16 April 2002 where
he for the first time saw his wife and
children and was released on bail on 17 April 2002 following upon a
successful bail application.
[11] Mr Van der Merwe,
who appeared on behalf of all the plaintiffs, sought throughout the
proceedings to canvas, in detail, evidence
as to the circumstances in
which especially Cilliers, and to a lesser extent Steenbergen and De
Beer were detained after the Magistrate
in Frankfort had issued the
further detention orders during the afternoon of 4 April 2002. A
significant amount of court time was
taken up with evidence relating
to the state of their personal relationships, their subsequent
dismissal from the South African
Police Services and the present
state of their mental health, in an obvious attempt to attribute all
this to the unlawful arrest
and detention. Although it is common
cause that none of the plaintiffs are still members of the South
African Police Services and
that all of them, except Cilliers, were
dismissed following subsequent internal disciplinary hearings
relating to the criminal
charges in which they were all implicated,
there is no factual basis on which I am able to find that the
unlawful arrest and detention
as such led to there dismissal from the
South African Police Services. From the evidence, as corroborated by
exhibit “A”,
being a bundle containing copies of
newspaper clippings and exhibit “C” dealing with
recordings of TV broadcasts, both
of which were agreed upon between
the parties and handed in as exhibits, it is clear that the arrests
and detention not to mention
the subsequent bail applications and
later criminal proceedings, attracted wide local and national news
coverage. These facts will
not be lost sight of during the assessment
of damages.
[12] Cilliers, as well as
the other plaintiffs, were all, some several years after the unlawful
arrest and detention, subjected
to psychiatric evaluation by a Dr J P
Grobler who was called to testify as an expert on behalf of the
plaintiffs. He conceded during
his testimony that it would be very
difficult if not impossible to prove and accept that the psychiatric
conditions which presently
manifest themselves were caused solely by
the unlawful arrest and unlawful period of detention and not by the
subsequent stressful
and traumatic events and circumstances. Halfway
through his cross-examination by Mr Notshe, on behalf of the
defendant, the matter
was adjourned whereafter exhibit “F”
was, by agreement between the parties, handed into court containing a
summary
of the psychiatric evidence which was no longer in dispute.
In short exhibit “F” recorded that it had been agreed
between
the parties that all the plaintiffs had sustained
“significant distress including distressed emotions as a result
of the
arrest and detention”. The exhibit furthermore recorded
that the individual plaintiffs presented with conditions ranging from
mood disorder and major depressive disorder through to alcohol abuse
and anti-social personality disorder traits. Of importance
is one of
the concluding paragraphs which records that:
“
3. The
arrest and detention is not the sole cause of the present conditions
of the plaintiffs.”
[13] Cilliers was
diagnosed as suffering from “mood disorder not otherwise
specified and alcohol abuse” and I have no
doubt whatsoever
that he, like the other plaintiffs, not only experienced what can
only be described as excruciating stress, anxiety,
humiliation and
embarrassment, but was furthermore severely traumatised by the arrest
and detention. He, like the other plaintiffs,
is in the final
analysis however only entitled to compensation for the unlawful
arrest and detention. In the case of Cilliers,
as with Steenbergen
and the late De Beer, this unlawful act on the part of members of the
South African Police Services in the
employ of the defendant, endured
from approximately 7:30 on 3 April 2002 to approximately 15:00 on 4
April 2002, that is some 32
(thirty two) hours. Their further
detention at the behest of the Magistrate can not in the
circumstances be deemed to be unlawful
(see
ISAACS v MINISTER
VAN WET EN ORDE
1996 (1) SASV 314 (A) at 322, par [C] to 324,
par [C]). Considering the further obvious stress, anxiety and trauma
suffered by
Cilliers after his further lawful detention at the behest
of the Magistrate as from 4 April 2002 at approximately 15:00 and
until
his eventual release on bail on 17 April 2002, I am not
convinced that his present ongoing mood disorder and alcohol abuse
can
be attributed solely, alternatively in any mathematically
acceptable proportion to the period of unlawful arrest and detention.
(See
MINISTER OF SAFETY AND SECURITY v SEYMOUR
2006 (6)
SA 320
(SCA) at 326 par [21]). Dr Grobler conceded as much and I will
approach the assessment of the damages on the basis of such
concession,
especially insofar as it relates to Cilliers, Steenbergen
and De Beer.
[14]
Steenbergen:
At the time of his arrest and detention, Steenbergen was the Station
Commander in Frankfort, approximate 45-years-of-age and on
leave at
his residence. At approximately 7:30 he saw his wife off to work
shortly whereafter he was confronted at his front door
by two senior
police officers, several heavily armed policemen and a convoy of
police vehicles outside his front gate. He was advised
that he was
being arrested on suspicion of murder and that he was to dress
warmly, whereupon he was escorted to his bedroom and
obliged to dress
in view of several police officers who refused to give him any
privacy. He hands were tightly handcuffed behind
his back and upon
exiting his front door he noticed that several members of the South
African Police Services were lying in the
classic shooting position
at strategic points under the shrubbery around his front garden with
firearms pointed in his direction.
He was taken with Cilliers to the
Frankfort Police Station where he established that his wife was in
the process of procuring the
services of an attorney. Upon hearing of
the possible involvement of an attorney, the police convoy spread off
in the direction
of Phuthaditjhaba where he was held for a short
period of time in a similar cage-type cell to which Cilliers had
referred to earlier.
Shortly thereafter, he was taken to another
police station at Tsetseng approximately 40km further away and locked
in a cell with
12 other detainees and awaiting trial persons. At all
times he was most concerned about the possibility that the other
cellmates
might find out that he was a senior policeman and, in order
to protect himself, told the cellmates that he was a well-to-do
farmer.
He, throughout his period of detention, feared for his life
should his true identity be revealed. He too, like Cilliers,
established
that the cell in which he was being held was controlled
by an identifiable leadership of detainees whose word was law. He was
obliged
to sleep on the floor with cellmates pressed tightly against
him on both sides and, like Cilliers experienced a cold, stressful
and most anxious night fearing all the while that he would be
sodomised. He together with Cilliers and De Beer, was taken back
to
Frankfort in a police convoy early in the afternoon of 4 April 2002
and at approximately 15:00 ordered to be detained at the
behest of
the Magistrate pending the bail application on 9 April 2002. I will
accept for purposes hereof that the manner in which
he was arrested
and subsequently detained for approximately 32 hours must have
inevitably caused him serious embarrassment and
humiliation. I will
furthermore accept that the arrest and detention caused him severe
shock, mental anguish, stress and a subsequent
degree of mood
disorder referred to by Dr Grobler. These facts and circumstances
were not seriously challenged by Mr Notshe on
behalf of the
defendant.
[15]
De Beer:
The
late De Beer was employed at the Mafube Municipality at the time of
his arrest and detention at approximately 7:30 on the morning
of 3
April 2002. In the absence of any serious challenge from Mr Notshe, I
will accept for purposes of this judgment that De Beer
was detained
in similar circumstances and conditions as those referred to by
Cilliers and Steenbergen. He too was brought to court
at Frankfort
during the afternoon of 4 April 2002 and subsequently detained at the
behest of the Magistrate at approximately 15:00
until 9 April 2002 on
which date he was released on bail. Mr Notshe did not challenge the
evidence by Cilliers that De Beer had
advised him that he too had
been taken to another Police Station in Phuthaditjhaba where he was
detained in a cell with several
other detainees and awaiting trial
prisoners and that this caused him extreme anxiety. According to
Cilliers be blamed his subsequent
divorce on the arrest and detention
as his wife, who was employed as a senior state prosecutor at the
Magistrates Court in Heilbron,
was, in the circumstances, not
prepared to continue with the marriage. There is no doubt in my mind
that the experience was throughout
the period of unlawful arrest and
detention most traumatic for De Beer and caused him a high level of
stress. I wil accept for
purposes hereof that the late De Beer must
have suffered embarrassment, serious shock and concomitant mental
anguish which remained
with him for some period thereafter. I will
furthermore accept that he was detained for approximately 32 hours.
[16]
Hills:
At the
time of his arrest and detention at approximately 20H00 on 5 April
2002, Hills was a 29-year-old Inspector stationed at
the Frankfort
Police Station. He was phoned by one of the Investigating Officers
and subsequently accompanied by his attorney to
the Tweeling Police
Station where he was formally arrested and detained. He was held
alone in a cold, uncomfortable and dirty cell
at the Tweeling Police
Station where he was offered food which he says, he had difficulty
eating. Later during the weekend he was
joined by one of the other
plaintiff’s Meyer and on Sunday, 7 April 2002 they were both
allowed to visit Cilliers, Steenbergen
and De Beer who were at that
stage being held in a cell close-by at the same Police Station. He
testified that he was, shortly
before his arrest, instrumental in the
arrest of an armed robbery suspect who was at that stage also being
held at the Tweeling
Police Station in an adjoining cell. During the
week-end he established that this armed robbery suspect knew of his
presence in
the police cells and that at some stage during Sunday the
suspect shouted to the police officers in attendance to afford him
access
to Hills as he wished to sodomised him. On Monday, 8 April
2002 at approximately 11H00 he, Myburgh and Meyer were taken to the
Frankfort Magistrate’s Court where they too were formally
detained at the behest of the Magistrate until the bail application
the following day, being the 9 April 2002. He was subsequently
released on bail.
[17] For purposes of this
judgment, and having regard to the clear distinction to be drawn
between unlawful and lawful arrest and
detention (see
ISAACS
-case
supra
at page 321, par e and further) I will accept that Hills
was unlawfully detained from approximately 20H00 on 5 April 2002
until
approximately 11H00 on 8 April 2002, being approximately 63
hours. I will furthermore accept that Hills was most severely
traumatised
and stressed by the whole experience and that the arrest
and detention caused him shock, embarrassment, mental anguish and a
degree
of subsequent depressive disorder as referred to by Dr
Grobler.
[18]
Myburgh:
At
the time of his arrest, Myburgh was a 30-year-old Inspector stationed
at the Frankfort Police Station. He was arrested at his
home at
approximately 19H00 on 5 April 2002 whilst in the process of
entertaining friends and family with a barbeque. The arrest
took
place in full view of his friends and family, including his
3-year-old daughter. He was taken to the Frankfort Police Station
and
shortly thereafter transferred to a holding cell in Bethlehem where
he was detained with several other detainees and awaiting
trial
prisoners, many of whom where clearly intoxicated. He was
subsequently placed in a cell with approximately 30 other detainees
where he established that a gang known as “the dogs of war”
controlled all the detainees in the cell. The policemen
who placed
him in the cell went so far as to inform the other cellmates that
Myburgh was a policemen which made him fear for his
life throughout
his time spent in the cell. He was held at the Bethlehem Police
Station for the entire week-end where he constantly
feared for his
well-being and life as the apparent gang leaders in the cell
initiated assaults and sodomy on certain other cellmates
from time to
time throughout his period of detention. Early during the morning of
8 April 2002 he was taken from Bethlehem to Tweeling
Police Station
where he subsequently joined up with Hills and Meyer. At
approximately 11H00 on 8 April 2002 he was ordered by the
Magistrate
of Frankfort to be detained pending the bail application scheduled
for 9 April 2002. I will accept for purposes of this
judgment that he
was not only detained for approximately 64 hours but furthermore that
the experience was, throughout the period
of unlawful attention, most
traumatic and distressing and it cannot be doubted that the arrest
and detention caused him serious
shock, embarrassment, mental
anguish, as well as a degree of what has been identified as an
anti-social personality disorder and
alcohol abuse as testified to by
Dr Grobler.
[19]
Meyer:
At the
time of his arrest, Meyer was a 30-year-old Sergeant stationed the
Frankfort Police Station. At approximately 20H00 on 5
April 2002 he
was contacted by his brother, who was also a police officer, and
advised that he had been tasked to arrest him by
the Investigating
Officer in the criminal case. He was shortly thereafter arrested by
his brother in the presence of his elderly
parents, his wife and his
small children whereupon he was taken by his brother to the Frankfort
Police Station. Shortly thereafter
he was taken by another police
officer to the Tweeling Police Station where he was initially locked
up alone in the cell and subsequently
joined by Hills.
[20] He testified that
the conditions he experienced were as bad as those testified to by
the other plaintiffs. This evidence was
not seriously challenged by
Mr Notshe on behalf of the defendant. On Monday, 8 April 2002 at
approximately 11H00 he, together with
Myburgh and Hills was ordered
to be detained at the behest of the Magistrate pending the bail
hearing on 9 April 2002. For purposes
of this judgment I will accept
that he was arrested and subsequently unlawfully detained for
approximately 63 hours in circumstances
which must not only have been
traumatic and stressful but furthermore must have caused him serious
shock, embarrassment, mental
anguish and, as testified to by Dr
Grobler, a degree of subsequent major depressive disorder and alcohol
abuse.
[21]
Van Zyjl:
At
the time of his arrest and detention, Van Zyjl was a Captain
stationed at the Frankfort Police Station and served in such capacity
as the commander of the detective branch. Before his arrest he was on
holiday in the Kruger National Park where he received information
as
to what was transpiring back home in Frankfort. He was requested by a
senior Superintendent to cut short his holiday and return
to
Frankfort as soon as possible, which he did. He was shortly after his
arrival arrested at the Frankfort Police Station at approximately
7:30 on the morning of 8 April 2002 in the presence of several of his
colleagues. He was in the past rewarded by the South African
Police
Services for outstanding police service and frequently praised in the
past for his investigative skills. He holds a tertiary
degree and
specialised in policing and accounting responsibilities, was clearly
very ambitious and by and large regarded as having
a very bright
future in the police services. He too, like all the other plaintiffs,
accept Cilliers, was released on bail at approximately
15H00 on 9
April 2002 and I will accept for purposes hereof that he was
unlawfully detained for approximately 31 hours. I will
furthermore
accept that the arrest must have caused him serious shock,
embarrassment, trauma, mental anguish and disappointment
and, as
testified to by Dr Grobler a degree of subsequent depressive
disorder. All the criminal charges giving rise to the unlawful
arrest
and detention were subsequently withdrawn against him before the
criminal trial proceeded.
[22] I am mindful of the
fact that the assessment of awards for general damages with reference
to awards made in earlier cases is
“fraught with difficulty”
as each case falls to be analysed with reference to its own
particular facts and circumstances,
which seldom, if at all, compare
directly with those in another case. Earlier cases are regarded as a
useful guide as to what has
been considered to be appropriate in the
past, but such earlier cases quite clearly serve no greater purpose
than that. (See the
SEYMOUR
-case
supra
at page
325, par [17]).
[23] It goes without
saying that a simple mathematical extrapolation from the award in an
earlier case to the present one with reference
to the period of
unlawful detention would be inappropriate as the conditions of
unlawful detention vary from case to case and would
as such have a
direct bearing on the assessment of the quantum. (See
VAN
RENSBURG v THE CITY OF JOHANNESBURG
2009 (2) SA 101
(WLD) at
110H – I.)
[24] In addition to the
facts and circumstances which are relevant to this case I am
furthermore guided by two further overriding
principles namely:
(1) The need to insure
that the awards reflect the importance of the right to personal
liberty and the seriousness with which any
arbitrary deprivation of
personal liberty is viewed;
(2) The need not to be
extravagant in compensating the loss (See
MINISTER OF SAFETY
AND SECURITY v TYULU
2009 (5) SA 85
(SCA) at 93, par [26] and
SEYMOUR
-case
supra
at 325, par [17], and
OLIVIER
v MINISTER OF SAFETY AND SECURITY AND ANOTHER
2009 (3) SA 434
(WLD) at 446D – E.)
[25] In considering all
the relevant facts and circumstances, Mr Van der Merwe, on behalf of
the plaintiffs, argued that I should
furthermore take into account
the following:
(a) The fact that there
was an “ulterior motive” on the part of the arresting
officers when arresting the plaintiffs
which amounted as such to
“malicious” detention; and
(b) The deep emotional
and psychological scars left on the plaintiffs almost ten years
later.
It is common cause that
not only were the criminal charges giving rise to the unlawful arrest
and detention withdrawn against one
of the plaintiffs (Van Zyjl), but
in addition thereto that all the other plaintiffs were acquitted at
the close of the state’s
case in the criminal prosecution which
initiated their original unlawful arrest and detention. Kruger, J in
his judgment on the
merits found that the detention “shows that
there was an ulterior motive with the arrest” (see the
unreported judgement,
case number 1071/2003 and 1072/2003 at page 41,
par [100]). Unlawful arrest and malicious prosecution fall to be
distinguished
as both have their own set of requirements (See
RELYANT
TRADING PTY LTD v SHONGWE AND ANOTHER
[2002] 1 ALL SA 375
(SCA) at 377, par [4] – 378, par [6]). Kruger J dismissed the
claim for malicious prosecution and in the context thereof,
and in
the absence of any facts and evidence to the contrary, I am unable to
find that the arrests and detention were as such malicious.
I will
accept for purposes of the assessment of damages that an ulterior
motive prevailed but that it cannot be taken any further
than that.
As regards the deep emotional and psychological scars which to this
day (some 10 years later) still manifest themselves,
Mr Van der Merwe
conceded that the expert Dr Grobler was unable to claim with any
degree of conviction that the sole cause of the
present manifestation
could be attributed to the unlawful arrest and detention (See
paragraph 3 of exhibit “F” referred
to earlier).
[26] Nugent JA dealt in
detail with earlier awards and the extent to which such could be used
as a useful guideline in the present
case. What is clear is that
earlier cases should be approached with caution (See the
SEYMOUR
-case
supra
at page 325 para [18] – 326 para [19].)
[27] Having given due
consideration to all the relevant facts which have been canvassed
above, the nature and periods of unlawful
detention and awards made
in earlier cases (see
SEYMOUR
-case
supra
at 326,
par [19],
VAN RENSBURG
-case
supra
at 110H –
J,
OLIVIER
-case
supra
at 445H – 446F, the
TYULU
-case
supra
at 92, par [24] – 93, par
[27] and the
RUDOLPH
-case supra at 102, par [26] –
103, par [29]) and, mindful of the need to jealously guard against
the incursions upon and
loss of personal liberty whilst at the same
time not being extravagant in compensating such loss, I believe that
the following
amounts would be fair to both the plaintiffs as well as
the defendant. It is however necessary to distinguish Cilliers,
Steenbergen,
De Beer and Myburgh from the other plaintiffs as they
were detained in appalling circumstances and, but for De Beer,
contrary to
police standing orders. They were not held alone but with
other detained and awaiting trial persons and in the circumstances
and
in addition to the degradation that was inherent in having been
arrested and detained, these four plaintiffs also feared for their
lives throughout their respective periods of detention. I am of the
view that the extreme incursions upon their personal liberty,
as
compared to the other plaintiffs, need to be reflected in the
respective awards (See
SEYMOUR
-case
supra
at
325I – 326A):
(1) Cilliers, Steenbergen
and De Beer who were detained for approximately 1½ days, but
in appalling circumstances –
R120 000,00 each;
(2) Hills and Meyer who
were detained for approximately 2½ days but alone – R160
000,00 each.
(3) Myburgh who was also
detained for 2½, days but in appalling circumstances –
R180 000,00.
(4) Van Zijl who was
detained for approximately 1½ days, but alone – R90
000,00.
[28] I am furthermore in
agreement with Mr Van der Merwe that this court should have regard to
section 2(A)
of the
Prescribed Rate of Interest Act, 55 of 1975
,
which was introduced on 5 April 1997 and relates to the recovery of
interest on unliquidated debts. As I see it the court has
a
discretion in fixing the date from which interest is to run so as to
give effect to its own view on what is just and equitable
in all the
circumstances and furthermore that the whole question of onus plays
no role in such exercise (See
ADEL BUILDERS PTY LTD v THOMPSON
2000 (4) SA 1027
(SCA) at 1032, para [14] and [15]). The inordinate
delay in finalising the whole matter, bearing in mind that Kruger J’s
judgment on the merits was delivered on 20 July 2006, was to my mind
brought about by two factors, namely:
(a) The unsuccessful
attempts by the defendant to firstly apply for leave to appeal Kruger
J’s judgment and thereafter to
petition the Supreme Court of
Appeal; and
(b) The failure of the
defendant to be fully prepared for trial on no less than 2 previous
occasions when the matter had been enrolled
for trial.
[29] Following upon the
unsuccessful attempt by the defendant to petition the Supreme Court
of Appeal regarding Kruger J’s
judgment, this case was
initially enrolled for trial for a 5-day period as from 27 January
2009. On 27 January 2009 the matter
was postponed
sinne die
and the defendant ordered to pay the wasted costs on the scale as
between attorney and client, which costs included the costs attendant
upon the obtaining of the services of expert witnesses. It is common
cause that the defendant’s problem in January 2009 was
that it
had failed to adequately deal with and/or prepare for trial
especially insofar as it related to the envisaged expert testimony
to
be presented on behalf of the plaintiffs. The matter was once again
enrolled for trial more than a year later and for a 10-day
period as
from 8 March 2010. As late as 18 January 2010 a notice was served by
the legal representatives of the defendant on plaintiff’s
legal
representatives in terms of High Court
Rule 36
, requiring the
plaintiffs to submit themselves for a medical examination which
“…
shall
take place on 10 February 2010 to 16 February 2010 at Care Cure
Clinic … at 17H00.”
A notice in terms of High
Court
Rule 36(3)
was filed on behalf of the plaintiffs wherein
defendant’s notice in terms of High Court
Rule 36
was objected
to on various grounds,
inter alia
that the notice was vague,
that it failed to provide any detail concerning the proposed medical
examination and that it failed
to provide and specify the nature of
the proposed examination. It is common cause that all the plaintiffs,
except the late De Beer,
arrived for the medical examination under
the impression that they would be examined on a daily basis over a
6-day period as from
17H00 each day and that they were completely
unprepared to be booked into the clinic for the six day period as was
envisaged on
behalf of the defendant. As a result of this reality,
the defendant realised that it would not be ready for trial some one
month
later, having regard to the time constraints relating to the
filing of expert notices and summaries, and the matter was once again
postponed with an order to the effect that costs stand over for later
deliberation. The undisputed facts were fully canvassed before
me
with reference to exhibit “E” being a bundle of
correspondence between the attorneys of record dealing with the
whole
problem and what is quite clear there from is that the defendant’s
legal representatives simply failed, for more than
a year, to apply
their minds to the whole question of the expert testimony, which
plaintiffs’ legal representatives intended
canvassing. The
summary of expert testimony that the defendant sought to rely on
clearly shows that such was only prepared after
the postponement in
March 2010, which,
per se
, supports Mr. Van der Merwe’s
contention that I should seriously consider a punitive costs order
relating to such postponement.
I am guided in this regard not only by
the leading case of
NEL v WATERBERG LANDBOUWERS KO-OPERATIEWE
VEREENIGING
1946 AD 397
, but in addition thereto the
following two factors, namely:
The defendant was to
blame for both the 2009 and 2010 postponements; and
In 2009 the court saw
fit to make a punitive costs order.
In the circumstances, I
am of the opinion that interest on the damages awarded is to run from
the date of service of the summons
on the defendant.
I furthermore find that
the defendant is to be held liable for the wasted costs occasioned by
the postponement in March 2010 on
the scale as between attorney and
client.
[30] Mr. Van der Merwe
requested the court to consider a further punitive costs order
relating to the wasted costs of the first
day of trial being 31
January 2011 on the basis that the trial could not proceed as a
result of the unavailability of an interpreter
whom Mr. Notshe, on
behalf of the defendant, required so as to assist him with the
interpretation of the plaintiffs’ testimony,
which was to a
large extent delivered in the Afrikaans vernacular. I am mindful of
the provisions of High Court
Rule 61
and the distinction to be drawn
between sub-rules (1) and (3) thereof. I have given serious
consideration to Mr. Van der Merwe’s
suggestion in this regard,
but have decided, in view of the sorry and unacceptable state in
which the court file was presented
to me, that the matter was in any
event not “ripe” for trial on 31 January 2010 for which
the plaintiffs as
dominus litis
are to blame (See Rule 4 of
the Free State High Court Rules of Practice applicable as from 1
August 2007). I find that both parties
are to blame for the wasted
day and in the circumstances I make no costs order as regards the
wasted costs of 31 January 2010.
On 5 May 2011 counsel for the
parties requested that further written heads be filed by the end of
May 2011 and this was acceded
to hence the delay in making the order.
[31] I accordingly make
the following order:
1.1 The plaintiffs
Cilliers, Steenbergen and the estate of the late De Beer are awarded
damages in the sum of R120 000,00 each;
1.2 The plaintiffs Hills
and Meyer are awarded damages in the sum of R160 000,00 each.
1.3 The plaintiff Myburgh
is awarded damages in the sum of R180 000,00.
1.4 The plaintiff Van
Zijl is awarded damages in the sum of R90 000,00.
2. The defendant is to
pay interest on the aforementioned amounts at the rate of 15,5% per
annum calculated as from 28 March 2003
(being the date of service of
both the summonses).
3. The defendant is
ordered to pay the following costs:
3.1 The costs occasioned
by the postponement of the matter during March 2010 on the scale as
between attorney and client.
3.2 The costs of suite –
excluding the costs of 31 January 2011.
4. The defendant is
ordered to pay the costs of the experts employed by the plaintiffs
being Drs. Louw, Meiring and Grobler, including
their qualifying and
preparation fees.
_______________
P.U. FISCHER, AJ
On behalf of plaintiffs:
Adv. M.P. van der Merwe
Instructed by:
Lovius Block Attorneys
BLOEMFONTEIN
On behalf of defendant:
Adv. S.V. Notshe SC
Instructed by:
State Attorney
BLOEMFONTEIN
/eb