Van Der Merwe v Minister van Veiligheid en Sekuriteit en Ander (716/07) [2009] ZANCHC 72 (27 November 2009)

78 Reportability

Delict

Brief Summary

Delict — Unlawful arrest and detention — Claim for damages — Plaintiff unlawfully arrested and detained for two and a half hours — Plaintiff, a 68-year-old successful contractor, suffered psychological trauma resulting in ongoing mental health issues — Defendants admitted liability for damages — Court to determine appropriate quantum of damages — Award of R25,000 deemed appropriate in light of circumstances and comparable case law.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an action for damages arising from unlawful arrest and detention. The plaintiff, Joseph Petrus Albertus van der Merwe (the “plaintiff”), sued the Minister of Safety and Security (first defendant) and Inspector Dirk Hammond (second defendant) (together, the “defendants”).

By the time the matter came to trial, the defendants had conceded the merits, including the wrongfulness of the arrest and their liability for such damages as the plaintiff could prove. The trial therefore proceeded essentially on the quantification of damages and the appropriate order as to costs.

The dispute was situated within the broader subject-matter of delictual compensation for infringements of the right to personal liberty through unlawful police conduct, and the appropriate solatium to be awarded for such infringements.

2. Material Facts

It was common cause that the plaintiff’s arrest was unlawful and that he was deprived of his liberty for approximately two and a half hours while in police custody. This period of detention constituted the central factual basis for the damages enquiry.

The court accepted (largely as undisputed) the evidence relating to the after-effects of the arrest and detention on the plaintiff. At the time of the incident, the plaintiff was a successful building contractor in Upington. He later experienced significant difficulty in coping with the incident and its consequences, and the evidence indicated that he lost interest in his occupation, stopped working as a contractor, and later relocated to Stellenbosch. The plaintiff’s wife, a qualified nurse, became the household’s breadwinner.

The plaintiff (who was 68 years old at the time of trial) underwent psychological and psychiatric treatment and used prescribed medication, which, on the accepted evidence, did not produce the desired improvement. The plaintiff described himself as feeling run down and listless, and the evidence indicated persistent feelings of being deeply aggrieved by having been treated in this manner despite being a law-abiding citizen. The plaintiff gave evidence with visible emotion, including an incident in court where he cried, which the court treated as illustrative of his ongoing emotional state.

The plaintiff called a counselling psychologist, Ms Petronelle Charlotte Streit, whose evidence the court accepted. She testified that the plaintiff presented with symptoms consistent with depression (including sleep disturbances, diminished enjoyment, low motivation, emotionality, and a generally depressed mood), and also flashbacks and nightmares related to the traumatic experience, which she described as typical symptoms of post-traumatic stress.

In cross-examination, the defendants elicited concessions from Ms Streit that the plaintiff had a low resilience level, meaning he would process psychological trauma with difficulty and his recovery would likely take longer. She also accepted that the plaintiff was a person who struggled to process perceived injustice and that his ongoing difficulty in recovery was, to some extent, attributable to his own lack of constructive engagement with the recovery process (in the sense that he would need to cooperate in addressing his difficulties).

The defendants’ witnesses addressed aspects of the arrest and detention, including disputed matters around the method of arrest and surrounding events. The court considered it unnecessary to resolve those disputes for purposes of the damages determination. The court regarded it as relevant that it ultimately became common cause that the plaintiff was not detained in a cell with other prisoners, because he refused to enter the cell until his attorney arrived.

The plaintiff contended that the timing of the arrest (after 16:00 on a Friday) suggested improper motives. The court, however, found that the plaintiff failed, on a balance of probabilities, to prove mala fides and treated the timing as an unfortunate coincidence of circumstances rather than evidence of bad faith.

3. Legal Issues

The central legal question was the appropriate quantum of damages to compensate the plaintiff for unlawful arrest and detention, given that unlawfulness and liability had been conceded.

The dispute was primarily concerned with the application of legal principles to the facts and an inherently evaluative value judgment regarding the proper amount of solatium. It also implicated a limited factual assessment as to whether the plaintiff had proven mala fides, because the presence or absence of bad faith was argued as potentially relevant to the quantum.

A further issue concerned the appropriate costs order, particularly whether costs should be awarded on the High Court scale notwithstanding that the amount ultimately awarded could fall within the monetary jurisdiction of the Magistrates’ Court.

4. Court’s Reasoning

The court approached the quantification of damages on the accepted basis that compensation for unlawful arrest and detention is not a mechanical calculation but a form of solatium for injured feelings and the affront to dignity and liberty. The court emphasised that a court must place sufficient weight on every citizen’s right to personal freedom and must demonstrate disapproval of its unlawful deprivation, while still determining compensation with reference to all the circumstances.

In setting out the approach, the court relied on guidance from appellate authority that comparable awards may be instructive but are not decisive, and that each matter must be determined on its own facts. In that context, the court referred to the principle that comparison is only useful where circumstances are broadly similar in all material respects, and it treated prior awards as a tool for calibration rather than a binding scale.

Applying those principles to the facts it accepted as established, the court considered the plaintiff’s age, the fact of unlawful arrest and detention for approximately two and a half hours, and the accepted evidence of persistent emotional and psychological consequences continuing years later. At the same time, the court considered the concessions elicited from the psychologist that the plaintiff had low resilience, that his recovery could be prolonged for that reason, and that his ongoing difficulties were to some extent attributable to his own struggle to process injustice and to cooperate in overcoming the sequelae of the incident.

The court rejected the contention that the arrest was shown to be motivated by mala fides and treated the matter as lacking proof of bad faith. This finding formed part of the overall evaluative matrix informing the quantum, along with the relatively short duration of detention and the fact that the plaintiff was not ultimately held in a cell with other prisoners.

The court then compared a range of awards in reported decisions, including a recent decision of the Supreme Court of Appeal in which a substantially lower amount was substituted for a higher award in a case involving a notably brief detention. The court considered the plaintiff’s counsel’s proposed range (R50,000 to R100,000) to be out of step with the guidance in the most recent Supreme Court of Appeal authority referred to, even allowing for differences in duration and personal circumstances.

Weighing all circumstances, the court concluded that an award of R25,000 was appropriate.

The court also addressed the plaintiff’s earlier quantum demands, criticising the very high amounts initially claimed (first in a demand letter and then reduced but still extremely high in the particulars of claim) as unreasonable and as creating unrealistic expectations for litigants, noting that practitioners should avoid such inflated claims given the pattern of comparable awards.

On costs, the court accepted the principle that courts treat unlawful arrest and detention with seriousness. Relying on authority summarised in the judgment to that effect, the court considered it appropriate that the plaintiff recover costs on the High Court scale, notwithstanding the size of the award.

5. Outcome and Relief

The court awarded judgment in favour of the plaintiff and ordered the defendants to pay jointly and severally, the one paying the other to be absolved.

The defendants were ordered to pay the plaintiff R25,000 as damages, together with interest at 15.5% per annum from the date of demand to date of payment.

The defendants were further ordered to pay the plaintiff’s costs of suit (as awarded by the High Court in this action).

Cases Cited

Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)

Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA)

Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA)

Marine and Trade Insurance Co Ltd v Goliath 1968 (4) SA 329 (A)

Mvu v Minister of Safety and Security and Another 2009 (6) SA 82 (GSJ)

Louw v Minister of Safety and Security and Others 2006 (2) SACR 178 (T)

Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W)

Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W)

Van Rensburg v City of Johannesburg 2009 (1) SACR 32 (W)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The defendants’ concession established that the plaintiff was unlawfully arrested and detained, and that they were liable for proven damages. The plaintiff did not prove, on a balance of probabilities, that the arrest was carried out with mala fides. The appropriate solatium for the plaintiff’s unlawful deprivation of liberty for approximately two and a half hours, assessed with regard to all the circumstances and comparable awards, was held to be R25,000, together with interest from date of demand. The seriousness with which courts regard unlawful arrest and detention justified an award of the plaintiff’s costs in the High Court proceedings.

LEGAL PRINCIPLES

Damages for unlawful arrest and detention are awarded as a solatium for injured feelings and for the affront to the fundamental right to personal liberty, rather than as a purely arithmetical calculation.

In assessing quantum, a court must have regard to all relevant circumstances, including the duration and conditions of detention, the plaintiff’s personal circumstances, and the proven impact of the deprivation of liberty, while also ensuring that the award reflects the importance of the right and the court’s disapproval of its infringement.

Awards in comparable cases may be instructive but are not decisive; each case must be assessed on its own unique facts, and comparison is only useful where circumstances are broadly similar in all material respects.

Where mala fides is alleged as an aggravating feature relevant to quantum, it must be proven on a balance of probabilities; absent such proof, the assessment proceeds without treating bad faith as established.

Unlawful arrest and detention are treated with particular seriousness, and that seriousness may support an award of High Court costs even where the monetary award falls within the typical jurisdictional range of a lower court, depending on the circumstances accepted by the court.