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[2009] ZAGPPHC 51
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Kutumela v Minister of Correctional Services and Another (42154/2006) [2009] ZAGPPHC 51 (14 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
Case number: 42154/2006
Date: 14 May 2009
UNREPORTABLE
In the matter between:
MOSES KUTUMELA
Plaintiff
and
MINISTER
OF CORRECTIONAL SERVICES
First
Defendant
MINISTER
OF JUSTICE AND CONSITUTIONAL
Second
Defendant
DEVELOPMENT
JUDGMENT
PRETORIUS J,
The plaintiff instituted action
against the defendants on the basis that the plaintiff was unlawfully
detained at the instance of
the defendants.
The defendants
conceded the merits and this court only has to decide the
quantum
of
damages to which the plaintiff is entitled.
The plaintiff was convicted and
sentenced during 2000 on a charge of robbery with aggravating
circumstances. This conviction and
sentence was set aside on appeal
on 29 March 2004 by the High Court. The plaintiff was, however, not
released on 29 March 2004,
but was in custody at Zonderwater Prison
until 21 June 2004.
The defendants conceded that this
detention was unlawful.
The plaintiff gave
evidence under oath. He testified that before he had been arrested in
2000, he had been working for his uncle
earning between R200.00 to
R300.00 per week. He is unmarried but has a little girl aged three
years and four months. He had passed
grade 12 in 1997. He is
presently 32 years old and in Modderbee prison as a sentenced
prisoner.
During 29 March
2004 until 21 June 2004 he was held in Zonderwater prison as a
sentenced prisoner, sharing a cell of approximately
10 x 10 square
metres with 31 people.
The size of the cell was such that
there were bunker beds in the cell so that each person had his own
bed.
He worked in the
prison kitchen. They received two meals a day, which resulted in him
losing weight whilst in prison. He was scared
of being stabbed by
gang members in prison. The prisoners in Zonderwater prison was woken
up at 4h30 and locked up, for the night,
at 15h00. From 15h00 until
the next morning the prisoners could read and watch television. He
was thus locked up for more than
13 hours per day. The plaintiff was
an honest witness and did not try to paint an even bleaker picture of
the circumstances under
which he had been detained.
The plaintiff
claims R500 000.00 for deprivation of liberty, R100 000.00 for
inconvenience and discomfort and R100 000.00 for
contumelia
.
Counsel for
plaintiff referred me to
Mthimkulu
and Another v Minister of Law and Order
1993 (3) SA 432
ECD
where the plaintiff had been detained for 14 days and was awarded R40
000.00.
It is not clear in
this instance why the plaintiff was not immediately released on 29
March 2004. There is no indication whether
the first or second
defendant is to blame for the gross negligence of not releasing the
plaintiff on 29 March 2009. The deprivation
of liberty is a serious
injury, which our courts have always regarded in a serious light.
Section 12 of the
Constitution sets out that a person’s right to liberty and
freedom is a fundamental human right which should
be jealously
guarded.
In
S
v Martin
1996 (2) SACR 379
W,
Flemming
DJP found at 385 i- 386a:
“
To
have freedom restricted, especially if there is confinement to a
small area, is in itself a severe punishment. A long period
of such
restriction will to all but the most hardened increasingly border on
earthly hell.”
This matter must be
distinguished from
J.
Zealand v Minister of Justice and Another; Case no 3968/2005
dated 29/10/2008, as in this instance, the plaintiff had no knowledge
that the High Court had upheld his appeal. I have to agree
that the
defendants did not act with malice, as was conceded by Mr van Rooyen,
for the plaintiff.
In
Seymore
v Minister of Safety and Security
2006 (5) SA 483
(W)
Willis
J found at p 500:
“
It
is trite that the primary function of awards for damages under the
actio injuriarum is to compensate the victim for his or her
injuriae
, and is not exemplary. Lest it be thought that I have misunderstood
the position, I wish to emphasise that my conclusion
is this: a
shift, even though it is not a so-called 'sea-change', must be
manifested in the value which the Courts attach to
freedom and,
correspondingly, the value to be applied to a person's deprivation
thereof.
”
In this instance
the plaintiff’s appeal was upheld on a technicality and his
conviction and sentence were set aside. He was
charged on the same
charges, convicted and sentenced at a later stage. It was the first
time he had been detained and before this
he had been employed and
living in Daveyton. Mr van Rooyen conceded that there was no
publicity in this instance, apart from the
family and friends who
knew of his incarceration.
It is difficult to
decide what amount to award in the present case. It is so that the
court must have regard to case law and awards
previously made, but
cannot decide on a formula when deciding an award, as each case
differs and each plaintiff has unique circumstances.
Each case must
be dealt with on its own merits.
In
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(D)
Holmes
J held at p 287:
“
However,
no better system for assessing damages has yet been evolved, and the
Court has to do the best it can with the material
available, even if,
in the result, its award might be described as an informed guess. I
have
only
to add that the Court must take care to see that its award is fair
to both sides - it must give just compensation to the plaintiff,
but
must not pour our largesse from the horn of plenty at the
defendant's expense.
”
(my emphasis)
I have considered
awards made in similar cases, as well as the facts of this particular
case. I have also considered the arguments
of both counsel.
It is quite clear that the plaintiff is entitled to an award, having
regard to all the facts. I intend awarding a sum which takes
the
decline in the value of money into consideration. I am awarding a
lump sum which takes into consideration the deprivation of
liberty,
inconvenience and discomfort and
contumelia.
I therefore make the following order:
1. Judgment is
granted in favour of the plaintiff against the defendants,
jointly and severally, the one paying the other to
be
absolved
for payment of:
a) R50 000.00;
b) Interest on
R50 000.00 at the rate of 15.5% per annum from the date of
service of the notice to defend,
that is 2 March
2007;
c) Costs of suit
______________________
C Pretorius
Judge of the High Court
Case number :
42154/2006
Heard on : 11
May 2009
For the Applicant
: JM van Rooyen
Instructed
by :
Wits
Law Clinic
For the Respondent
: LM Moloisane
Instructed
by :
State
Attorney
Date of
Judgment : 14 May 2009