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[2009] ZAGPPHC 285
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Ridgard v Minister of Safety And Security and Another (4291/2007) [2009] ZAGPPHC 285 (12 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
12 AUGUST 2009
CASE
NO: 4291/2007
In
the matter between:
CRAIG
RIDGARD PLAINTIFF
VS
THE
MINISTER OF SAFETY AND
SECURITY FIRST
DEFENDANT
CONSTABLE
NDABA SECOND
DEFENDANT
JUDGMENT
BOTHA
J
In
this case the plaintiff claims an amount of R233 566.16 from the two
defendants, the Minister of Safety and Security and Constable
Ndaba
on account of unlawful arrest.
The
defendants accepted the duty to begin and called one witness,
Constable Ndaba. The plaintiff gave evidence himself called his
attorney, Mr Levitz.
Most
of the facts are common cause. I do not intend to summarize the
evidence in detail. I shall confine myself to giving a brief
background. The plaintiff lives in an apartment in a complex that
also houses office buildings. He works from his home. The complainant
or complainants in the criminal case that gave rise to the arrest of
the plaintiff worked in an office block in the complex. On
7 February
2006 there was an incident apparently caused by the fact that
somebody parked his car in the plaintiff’s parking
space. On
that day a police docket on charges of malicious injury to property
and intimidation was opened against the plaintiff.
See A34. On 15
February 2006 at about 11H00 the plaintiff was arrested in his
apartment by Constable Ndaba, who was accompanied
by two colleagues.
They were in civilian clothes and were using an unmarked police car.
The plaintiff was taken to Hillbrow police
station. He managed to
phone his girlfriend who obtained the services of an attorney, Mr
Levitz, who eventually obtained his release
on bail. In the mean time
the plaintiff was locked into a cell with eight other men. Constable
Ndaba excused himself and only returned
by about 18h00. The plaintiff
was handcuffed and taken to court where, after negotiations with a
prosecutor, he was released on
bail.
Where
there are disputes of fact I accept the version of the plaintiff and
Mr Levitz. The plaintiff was a fair and honest witness.
Mr Levitz
kept notes of the telephone calls to which he testified. Advocate
Mthimunye, who appeared for the defendants, wisely
refrained from
asking him to produce his notes. What is important about Mr Levitz’
evidence is that he testified that Constable
Ndaba told him over the
telephone that he was in Pretoria, which was not true, and that
Constable Ndaba opposed the granting of
bail to the plaintiff until
the Senior Public Prosecutor decided that bail should be granted.
In
respect of the evidence of Constable Ndaba the most serious criticism
against him is that he testified that he had already obtained
the
statement of a complainant before he arrested the plaintiff on 15
February 2006. He explained this discrepancy by saying that
he did
not have a stamp available on 15 February 2006. This evidence is
significant in the context of the instruction Constable
Ndaba had
received from his captain, namely to conduct further investigation
and then to trace and arrest the suspect. See A57.
It is obvious that
if the statement was obtained on 16 February 2006, as the stamp
indicates, that the arrest of the plaintiff
was effected without any
further investigation.
Constable
Ndaba also suggested that the plaintiff tried to escape after he had
stopped at the Hillbrow Police Station. I accept
the plaintiff’s
evidence that he opened the door of the police vehicle after two of
the other police men had alighted. The
suggestion that the plaintiff
tried to escape is preposterous. He suffers from CMT (Charcot Marie
Tooth disease)' a hereditary
neurological disorder which causes him
to limp, something that Constable Ndaba also observed. In my view
Constable Ndaba, by giving
this evidence tried to provide added
justification for his decision to arrest the plaintiff.
On
a conspectus of all the evidence I am satisfied that there was no
justification for the arrest of the plaintiff. I say that for
the
following reasons:
(a)
he had a fixed address and he was working from his home;
(b)
there was no reason why his attendance at court could not have been
procured by means of a summons;
(c)
Constable Ndaba tried to justify his arrest with reference to the
charge of intimidation. There was no proper evidence of intimidation,
as found by the Public Prosecutor (see A59), and there had been no
threats since the incident on 7 February 2006 and the day of
the
arrest.
(d)
The
probabilities are that Constable Ndaba merely arrested the plaintiff
because he had an instruction to trace and arrest him;.
(e)
Constable Ndaba himself said that it was the practice to . arrest all
suspects and then to release them on police bail unless
intimidation
was involved.
(f)
Intimidation is not a schedule crime justifying an arrest without a
warrant.
The
defendants have simply not proved that the arrest of the plaintiff
was the only and least invasive means of securing his attendance
at
court. See
Louw and Another v Minister of Safety and Security and
Others 2006(3) SACR 178T at 185 b-e and 187 d-e.
What
remains is the issue of the quantum. The amount of legal expenses,
R33 566.16, was proved through the evidence of Mr Levitz.
The real
issue is what amount should be awarded by way of general damages.
The
plaintiff was in custody for some eight hours. He is a sensitive man
and experienced his arrest and incarceration as degrading.
He was
exposed to embarrassment in the complex where he lived and in front
of his girlfriend and brother-in-law who attended court.
He was
locked up in a cell with eight other men. He was handcuffed on the
way to court. On the other hand his treatment was by
no means as bad
as it could have been. He himself described the conduct of the police
as benign, meaning unemotional.
It
is always difficult to place a monetary value on treatment of this
kind. Some useful evidence can be derived from the cases cited
in
Minister of Safety and Security v Seymour 2006(6) SA 320 SCA
.
I can also refer to
Olivier v Minister of Safety and Security and
Another 2008(2) SACR 387W.
Having
considered all the circumstances I am of the view that an award of
R50 000.00 would be fair in the circumstances.
Even
though the amount I intend to award falls within the jurisdiction of
the Magistrate’s Court, I am of the view that the
case concerns
a matter of public interest that justifies costs on a High Court
scale.
The
plaintiff at the pre-trial conference recorded his problems in
getting the defendants to attend a conference and the fact that
he
would ask the court to justify a punitive award of costs. I do not
think that this remissness of the defendants justify an award
of
punitive costs covering all the proceedings. I shall make an order
for costs on a punitive scale only in regard to the pre-trial
conference.
In
the result the following order is made:
1.
The defendants are ordered, jointly and severally, to pay damages to
the plaintiff in an amount of R83 566.16.
2. The defendants must,
jointly and severally, pay the plaintiffs costs on a scale as between
party and party except for the costs
relating to the convening and
holding of a pre-trial conference, which, including the costs of
counsel, shall be paid on a scale
as between attorney and client.
C
BOTHA
JUDGE
OF THE HIGH COURT