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[2008] ZAWCHC 235
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Minister of Safety and Security v Cloete (A148/2008) [2008] ZAWCHC 235 (8 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NUMBER:
A148/2008
DATE:
8
AUGUST 2008
In
the matter between:
THE
MINISTER OF SAFETY & SECURITY
APPELLANT
and
GERHARDUS
JOHANNES H CLOETE
RESPONDENT
JUDGMENT
FOURIE,
J
:
This
is an appeal against the judgment of the magistrate at Bel I vi He
delivered on 8 November 2007, as supplemented by written
reasons in
terms of Magistrate's Court Rule 51. Mr Jacobs appears for appellant
(defendant in the court
a
quo)
and
Mr Engela for respondent (plaintiff in the court
a
quo).
For
the sake of convenience, the parties are referred to as in the court
below.
It
is common cause that on 20 September 2005, plaintiff was arrested
without a warrant of arrest by members of the South African
Police
Services acting within the course and scope of their employment with
defendant It is further common cause that subsequent
to his
arrest, plaintiff was taken to the Ravensmead Police Station for the
purpose of obtaining a so-called warning statement
from him. There
he was detained in custody in the police cells and released
approximately one hour after he had been arrested.
He appeared in
court a few days later when the charge of common assault, which had
been preferred against him, was withdrawn.
In
his particulars of claim, plaintiff alleges that as a result of the
aforegoing, he suffered damages in an amount of R100 000
due to the
grave distress, inconvenience and humiliation suffered by him which,
he alleges, resulted in a grave impairment of
his dignity. The
action was defended and after hearing evidence, the magistrate
granted judgment in favour of plaintiff for payment
of R60 000 as
damages, together with interest thereon and ordered defendant to pay
plaintiff's costs on the scale as between
attorney and client.
Defendant now appeals against the whole of the judgment and order
made by the magistrate.
As
appears from the magistrate's reasons for judgment, defendant
conceded the merits of the action during argument. The magistrate
was accordingly only called upon to decide the issue of the quantum
of plaintiff's claim and to make an appropriate costs order
As
appears from defendants notice of appeal, the contention on behalf
of defendant is that the magistrate erred and misdirected
himseff in
awarding the amount of R60 000 as damages and awarding plaintiff
costs on the attorney and client scale.
M
is trite that a Court of Appeal will only interfere with the
exercise of a trial court's discretion in assessing the amount
of
damages if there is a striking disparity between the award made by
the trial court and that which a Court of Appeal would
award, or if
the trial court committed an irregularity or misdirection. See
Minister
of Safety & Security v Seymour
2006(6)
SA 320 (SCA) at 323 D to H and
RAF
v Delport N.O.
2006(3)
SA 172 (SCA) at 179 D to H.
The
general rules relating to an award of attorney and client costs are
also trite and stated as follows in
Cilliers,
Law of Costs
at paragraph 4.9:
"The
ordinary rule is that the successful party is awarded costs as
between party and party. An award of attorney and chent
costs is not
lightly granted by the court: the court leans against awarding
attorney and client costs, and will grant such costs
only on rare
occasions. It is clear that normally the court does not order a
litigant to pay the costs of another litigant on
the basis of
attorney and client, unless some special grounds are present."
Turning
to the issue of the quantum of plaintiffs cfaim, it has to be borne
in mind that an arrest and detention is a drastic
interference with
the rights of an individual to freedom of movement and to dignity.
Our courts have frequently emphasised that
an arrest should only be
the last resort as a means of producing an accused person or a
suspect in court. See the authorities
referred to in
Louw
v Minister of Safety & Security
2006(2) SACR 178 (T).
In
the instant matter, it was never the intention of the police
officers to arrest plaintiff for the purpose of producing him
in
court. As held by the magistrate, the intention in arresting
plaintiff was rather to harass him and to teach him a lesson.
It is
clear that plaintiff was seriously humiliated in being arrested,
handcuffed and placed in the police van in the presence
of his
employees. The arresting officer also conducted herself in an
arrogant manner and did her level best to provoke plaintiff.
There
was also no reason for the police to detain plaintiff in the police
cells. Their conduct in this regard was clearly malicious,
as
evidenced by the placing of plaintiff in a cell with several trial
awaiting prisoners, with the arresting officer gesturing
to the
other prisoners that they should manhandle plaintiff. Fortunately no
physical harm befell plaintiff during
his
incarceration.
It
is clear from the evidence that plaintiff is a sophisticated,
educated and successful businessman, who at the time of his arrest
and detention employed approximately 50 people in his two factories
in the Western Cape. I have no doubt that being arrested
and
handcuffed in full view of his employees, plaintiff suffered severe
humiliation and was gravely injured in his dignity. His
dignity was
further injured during his subsequent detention, especially in view
of the manner in which he was treated.
However,
on the other hand, this is not a matter where there is enduring
trauma The magistrate, in my view, correctly held that
plaintiff had
probably dealt with all the trauma he experienced. In
Minister
of Safety & Security v Seymour
(supra),
Nugent
.
J A emphasised that in a case of this nature, money can never be
more than a crude
solatium
for
the deprivation of what, in truth, can never be restored and there
is no empirical measure for the loss. As stressed by the
learned
judge of appeal, past awards of the courts in similar matters
reflect no discernible pattern other than that our courts
are not
extravagant in compensating the loss.
Counsel
have referred us to various judgments in which damages were awarded
in cases of unlawful arrest and detention,
it
would
not serve any purpose to try and analyse each of them, but in my
view the recent decision of
Minister
of Safety & Security v Seymour
(supra), can serve as a benchmark. The humiliation suffered by the
plaintiff in
Seymour
was at least equal to the humiliation suffered by plaintiff in the
instant case. The plaintiff in
Seymour
was wrongfully arrested and detained for five days and the present
value of the damages awarded to him is approximately R101
000.
The
plaintiff in the instant case was only detained for one hour and
although I agree with the submissions made by Mr Engela in
paragraph
15 of his heads of argument, the award of R60 000 as damages appears
to me to be strikingly excessive if compared with
the award made in
Seymour
Reference can also be made to
Seria
v Minister of Safety & Security & Others
2005(5)
SA 130 (C). There the plaintiff was unlawfully arrested at his home
in the presence of guests, taken to the police station,
initially
locked up in a cell on his own and thereafter made to share a cell
with a drug addict for the night. He was wrongfully
detained for 24
hours.
The
present value of the damages awarded to him is
approximately R60 000. In my view the plaintiff in the instant
matter, who was detained for one hour and suffered no greater
humiliation than the plaintiff in
Seria
,
should not be entitled to damages in an amount of R60 000.
On
reflection I am of the view that on the facts of the present matter,
an amount of between R30 000 and R40 000 would constitute
adequate
compensation. In my opinion an amount of between R10 000 and R20
000, as suggested by Mr Jacobs, would not amount to
adequate
compensation for the plaintiff. It follows, in my view, that there
is a striking disparity between the award made by
the magistrate and
that which I would have awarded.
In
the circumstances I conclude that this Court should interfere with
the exercise of the trial court's discretion by awarding
a lesser
amount as damages. I should add that in regard to interest on the
damages, the magistrate awarded interest as from the
date of
judgment. Mr Engela, after being prompted by this Court, moved for
an amendment to the summons to claim interest as from
the date of an
earlier demand. This application is opposed and, upon consideration,
we are of the view that Mr Jacobs correctly
submitted that in the
absence of a cross-appeal, such an amendment cannot be granted. The
application for an amendment of the
summons is accordingly refused
In
regard to the costs order made by the magistrate, I am of the view
that there is no legally justifiable basis for the making
of a
punitive costs order. In awarding costs on a punitive scale, the
magistrate found that:
"The
opposing of this particular claim was absolutely unnecessary and
even vexatious and obstructive.
1
'
The
mere fact that the defence to the merits was unsuccessful, does not
mean that the opposition was vexatious or obstructive.
In my view
there are no special grounds justifying a punitive cost order, in
fact, by defending the action, the defendant succeeded
in having the
claim of RtOO 000 reduced to R60 000. The magistrate also sought to
justify the punitive costs order on the basis
that plaintiff had a
right to come to court. However, that is a right also afforded to
defendant, who was successful in having
the claim reduced. I
accordingly conclude that the magistrate misdirected himself in
finding that in the circumstances of this
case, a punitive costs
order is justified.
Finally,
in regard to the costs of appeal, it should be borne in mind that
the general rule that costs follow the event, is not
implied as
rigidly on appeal as it is at first instance. See
Cilliers,
Law of Costs
,
paragraph 14.9. The fact that defendant shoutd, in my view, succeed
to a certain extent on appeal, does not necessarily mean
that
defendant should be entitfed to its costs of appeal I am of the
opinion that plaintiff should not be penalised for the exuberance
of
the magistrate in awarding damages and that the appeal should be
seen as part of the process of arriving at a fair award In
this
regard it should also be borne in mind that on appeal defendant
argued that the damages should be reduced to between R10
000 and R20
000. In all the circumstances, I am of the view that it would be
just and equitable to make no order as to the costs
of appeal. In
the result I would make the following order:
1.
The appeal succeeds and the order made by the magistrate is set
aside and the following substituted therefor:
"(a)
Defendant is to pay damages to plaintiff in an amount of R35 000,
together with interest thereon at the rate of 15,5%
per annum,
caEculated from date of judgment to date of final payment
(b)
Defendant is to pay plaintiff's costs of suit on the scale as
between party and party, including counsel's fees."
2.
No order is made as to the costs of the appeal.
FOURIE, J
I
agree
NGEWU,
A J