About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2024
>>
[2024] ZAECELLC 25
|
|
Mabele v Minister of Police (EL 37/2019) [2024] ZAECELLC 25 (21 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Not
Reportable
CASE
NO. EL 37/2019
In
the matter between:
MIHLALI
MABELE
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
LAING
J
[1]
This is an action for damages arising from the alleged
wrongful and
unlawful arrest and detention of the plaintiff. He claimed payment in
the amount of R 500,000.
Background
[2]
The plaintiff alleges that members of the South African
Police
Services (‘SAPS’) arrested him without a warrant on 24
April 2018, at Nahoon, East London.
[3]
He pleads that the arrest was wrongful and unlawful because,
inter
alia
, he never committed a Schedule 1 offence, as envisaged under
the Criminal Procedure Act 51 of 1977 (‘CPA’), the
arresting
officer had no reasonable or justifiable suspicion that he
had committed such an offence, never informed him of the reason for
his arrest or his constitutional rights and failed to exercise his
discretion in relation to the making of the arrest. The ensuing
detention, alleges the plaintiff, was wrongful and unlawful in that
there were no grounds for doing so. Consequently, he pleads
that his
constitutional rights were infringed.
[4]
The plaintiff was detained from 24 until 26 April 2018,
whereupon he
was released without having to appear before a magistrate. He alleges
that he suffered
contumelia
and the impairment of his personal
integrity and
dignitas
.
[5]
In his plea, the defendant admits the arrest and detention,
as
alleged. He pleads, however, that these were justified in terms of
section 40(1)(b) of the CPA because the plaintiff was suspected
of
having committed fraud, alternatively theft. The defendant goes on to
deny that the arresting officer failed to exercise his
discretion,
stating that the plaintiff was arrested for questioning and later
brought before a court. The charges against the plaintiff
were still
pending.
Trial
proceedings
[6]
The evidence for the parties is summarized below. It
was agreed that
the duty to begin lay with the defendant.
Case
for the defendant
[7]
The defendant called a single witness, viz. the arresting
officer,
Sgt Siyabonga Tuswa. He testified that he attended to a complaint
with a colleague on 24 April 2018, emanating from a
Steers restaurant
situated in Old Transkei Road, Nahoon, East London. He met the
financial manager, Mr Morné Marshall, who
alleged that
employees were misappropriating cash that belonged to the business.
This amounted to approximately R 190,000. In that
regard, Mr Marshall
referred to video footage of employees conducting sales with
customers and later dividing the takings amongst
themselves. The
plaintiff was amongst the employees involved.
[8]
Mr Marshall used the video footage to identify and place
aside six
suspects, whom Sgt Tuswa and his colleague encountered upon their
arrival. Some of the suspects were crying and conceded
that they were
in the wrong. They explained, however, that they had agreed with Mr
Marshall that the misappropriated cash could
be deducted from their
salaries; they were shocked when Mr Marshall subsequently involved
the SAPS. The plaintiff was one of the
suspects. Sgt Tuswa informed
them that a case would be opened; he explained their rights and
proceeded to arrest them before taking
the suspects to the Cambridge
police station, where he opened a case docket and handed the matter
over to the investigating officer.
He confirmed that the reason for
his having arrested the suspects was to bring them before court.
[9]
The defendant closed his case at the conclusion of Sgt
Tuswa’s
testimony.
Case
for the plaintiff
[10]
The plaintiff testified on his own behalf. He said that he had been
working
at the Steers restaurant in Nahoon, East London, since 2015.
[11]
On the day in question, the owner informed the employees that cash
had been
stolen. He said that he had evidence but invited them to say
what happened. No-one spoke, whereupon the owner called out the names
of several employees, including the plaintiff. At this, the plaintiff
challenged the owner and asked him how he could have been
involved
because he worked in the kitchen at the back of the restaurant, he
was not a cashier; nothing linked him to the alleged
theft.
[12]
Mr Marshall issued suspension notices to eight suspects in total. The
plaintiff
refused to acknowledge receipt, saying that he did not
understand why he was implicated. He again requested proof of the
allegations,
but the owner and Mr Marshall declined to do so. They
said that the suspects were to be arrested.
[13]
Shortly afterwards, police vans arrived; police officers handcuffed
the suspects
and placed them inside the vehicles. They never
explained their constitutional rights. The suspects waited for some
time before
the officers took them to the Cambridge police station,
where they received notices informing them of their rights. The
officers
indicated that a case docket would be opened.
[14]
The plaintiff described the condition of the holding cell. It was
cold, dirty,
and smelt strongly of urine; there was an open toilet in
the cell, without any privacy. The officers provided a single blanket
to the plaintiff, which he placed on the cement floor. He testified
that he suffered from asthma and had called for assistance.
The
officers ignored him. They removed his wallet, belt, and shoelaces.
They gave him soup and four slices of bread for lunch,
on 24 April
2018, and they gave him porridge on the following day, 25 April 2018.
[15]
At some stage during the plaintiff’s detention, the
investigating officer
asked him about his work responsibilities. The
officers took his fingerprints and told him that he would be brought
before court.
[16]
On 26 April 2018, the officers took the suspects to the Magistrates’
Court, where they placed them inside a room. Another officer later
entered the room, called out the names of the suspects, and
instructed them to wait outside. A legal practitioner approached them
and explained that the charges against them had been withdrawn;
they
were free to leave.
[17]
The plaintiff testified that the incident had troubled him
emotionally; his
dignity had been affected. The officers had led the
suspects away from the Steers restaurant in handcuffs, in sight of
the public,
who now viewed him as a thug. He had not been able to
sleep properly.
[18]
On 2 May 2018, said the plaintiff, the owner had called him to the
restaurant
and asked him about the incident. The plaintiff informed
him that he knew nothing about it. Subsequently, the owner invited
the
plaintiff to return, which he did. Of the eight suspects, only he
and another employee went back to work; both had previously worked
in
the kitchen.
[19]
The plaintiff closed his case.
Issues
to be decided
[20]
It is common cause that the defendant’s personnel arrested and
detained
the plaintiff. Consequently, the two primary issues for
determination are: (a) whether the arrest and detention were lawful;
and
(b) if not, then what damages should be awarded to the plaintiff.
[21]
The principles in matters such as the present are well-established. A
brief
overview thereof appears in the paragraphs below.
Legal
framework
[22]
The provisions of
section 40(1) of the Criminal Procedure Act 51 of 1977 (‘CPA’)
are relevant. They indicate that a
peace officer may arrest a person
without a warrant in several circumstances, including a situation
where the officer reasonably
suspects that the person in question has
committed an offence in Schedule 1 of the CPA.
[1]
Both theft and
fraud fall under the schedule in question.
[23]
Before an officer
can exercise such a power, however, the necessary jurisdictional
facts must exist. In
Duncan
v Minister of Law and Order
,
[2]
the erstwhile
Appellate Division held, per Van Heerden JA, that there are four such
jurisdictional facts: the arrestor must be a
peace officer; he or she
must entertain a suspicion; it must be a suspicion that the arrestee
committed a Schedule 1 offence; and
the suspicion must rest on
reasonable grounds.
[3]
The
meaning of ‘reasonable grounds’ was considered in
R
v Van Heerden
,
[4]
where Galgut AJ
held that the term must be interpreted objectively, and the grounds
must be those that would induce a reasonable
person to have a
suspicion.
[5]
This was explored
further in
Mabona
and another v Minister of Law and Order and others
,
[6]
where Jones J
confirmed that the test for whether a suspicion is reasonably
entertained is objective. He stated as follows:
‘
Would a reasonable
man in the second defendant’s position and possessed of the
same information have considered that there
were good and sufficient
grounds for suspecting that the plaintiffs were guilty of conspiracy
to commit robbery or possession of
stolen property knowing it to have
been stolen? It seems to me that in evaluating his information a
reasonable man would bear in
mind that the section authorizes drastic
police action. It authorizes an arrest on the strength of a suspicion
and without the
need to swear out a warrant, i.e. something which
otherwise would be an invasion of private rights and personal
liberty.
The reasonable man will
therefore analyse and assess the quality of the information at his
disposal critically, and he will not
accept it lightly or without
checking it where it can be checked. It is only after an examination
of this kind that he will allow
himself to entertain a suspicion
which will justify an arrest. This is not to say that the information
at his disposal must be
of sufficiently high quality and cogency to
engender in him a conviction that the suspect is in fact guilty. The
section requires
suspicion but not certainty. However, the suspicion
must be based upon solid grounds. Otherwise, it will be flighty or
arbitrary,
and not a reasonable suspicion.’
[7]
[24]
The principles
enunciated in
Mabona
have survived. A
court must apply an objective test to ascertain whether the suspicion
held by the officer was reasonable. More
recently, in
Biyela
v Minister of Police
,
[8]
the Supreme Court
of Appeal, per Musi AJA, held as follows:
‘
[33]
The question whether a peace officer reasonably suspects a person of
having committed an offence within
the ambit of s 40(1)(b) is
objectively justiciable. It must, at the outset, be emphasized that
the suspicion need not be based
on information that would
subsequently be admissible in a court of law.
[34]
The standard of a reasonable suspicion is very low. The reasonable
suspicion must be more than
a hunch; it should not be an
unparticularized suspicion. It must be based on specific and
articulable facts or information. Whether
the suspicion was
reasonable, under the prevailing circumstances, is determined
objectively.
[35]
What is required is that the arresting officer must form a reasonable
suspicion that a Schedule
1 offence has been committed based on
credible and trustworthy information. Whether that information would
later, in a court of
law, be found to be inadmissible is neither here
nor there for the determination of whether the arresting officer at
the time of
arrest harboured a reasonable suspicion that the arrested
person committed a Schedule 1 offence.
[36]
The arresting officer is not obliged to arrest based on a reasonable
suspicion because he or
she has a discretion. The discretion to
arrest must be exercised properly. Our legal system sets great store
by the liberty of
an individual and, therefore, the discretion must
be exercised after taking all the prevailing circumstances into
consideration.’
[25]
If the
jurisdictional facts necessary for an arrest without a warrant exist,
then the officer must still exercise his or her discretion
in whether
to proceed with the arrest. In
Minister
of Safety and Security v Sekhoto and another
,
[9]
the Supreme Court
of Appeal, per Harms DP, observed that the officer is entitled to
exercise such a discretion as he or she deems
fit, provided that he
or she stays within the bounds of rationality.
[10]
The court went on to remark as follows:
‘
While the purpose
of arrest is to bring the suspect to trial the arrestor has a limited
role in that process. He or she is not called
upon to determine
whether the suspect ought to be detained pending a trial. That is the
role of the court… The purpose of
the arrest is no more than
to bring the suspect before the court… so as to enable that
role to be performed. It seems to
me to follow that the enquiry to be
made by the peace officer is not how best to bring the suspect to
trial: the enquiry is only
whether the case is one in which that
decision ought properly to be made by a court… Whether his
decision on that question
is rational naturally depends upon the
particular facts but it is clear that in cases of serious crime- and
those listed in Schedule
1 are serious, not only because the
Legislature thought so- a peace officer could seldom be criticized
for arresting a suspect
for that purpose. On the other hand there
will be cases, particularly where the suspected offence is relatively
trivial, where
the circumstances are such that it would clearly be
irrational to arrest…’
[11]
[26]
The above principles are the basic legal framework relevant to the
present
matter. A concise evaluation of the witnesses follows.
Evaluation
of witnesses
[27]
The state’s witness, Sgt Tuswa, was reliable because he had
participated
directly in the incident that forms the subject of these
proceedings. The quality, integrity, and independence of his
recollection
of the incident do not attract serious criticism.
[28]
He was, however, evasive at times. Sgt Tuswa refused to make obvious
concessions,
for example the improbability that he had been able to
accomplish all that he said he had done within the limited time from
when
he and his colleague first responded to the complaint until when
he arrived with the suspects at the Cambridge police station. His
testimony was also not free of contradictions. He initially testified
that he used the video footage as the basis upon which to
arrest the
plaintiff but later admitted that he did not specifically identify
him therein. It subsequently emerged that he relied
on Mr Marshall’s
say-so. He could also not explain why he did not mention in his
statement that he had relied upon the video
footage. As an officer in
the defendant’s employment, it would have been difficult for
Sgt Tuswa to have remained free from
any inherent bias in his
testimony. He was, overall, not a credible witness.
[29]
Turning to the plaintiff, he would clearly have been biased to his
own advantage.
He could not offer a compelling explanation for why he
did not protest more vigorously at the time of his arrest. There
were, however,
few if any material contradictions in his testimony.
He persisted in his assertion that he requested access to the video
footage
on several occasions but neither the owner nor Mr Marshall
acceded. The calibre and cogency of the plaintiff’s testimony
was good. He was, overall, a credible witness.
[30]
Similarly, the plaintiff was a reliable witness. He experienced the
incident
first-hand and there was little to detract from the quality,
integrity, and independence of his recollection of events.
[31]
What remains is for the court to make findings on the probabilities
of each
of the witnesses’ respective versions. This aspect will
be addressed in the discussion below.
Lawfulness
of the arrest and detention
[32]
It is trite, as De
Vos J pointed out in
Ralekwa
v Minister of Safety and Security
,
[12]
that an arrest is
prima
facie
wrongful
and unlawful. The defendant bears the onus of proving that the arrest
was lawful.
[13]
[33]
In his plea, the defendant avers that the arrest and detention of the
plaintiff
were justified in terms of section 40(1)(b) of the CPA. The
court in
Duncan
identified four jurisdictional facts that must
exist before an officer may exercise the power conferred under
section 40(1)(b).
The nub of the case, here, seems to be whether the
fourth jurisdictional fact, described in
Duncan
, existed at
the time of the plaintiff’s arrest. In other words, the primary
question that arises is whether the officer’s
suspicion rested
on reasonable grounds. If so, then the secondary question, canvassed
in
Sekhoto
, is whether the officer properly exercised his
discretion in making the arrest.
[34]
It is apparent from Sgt Tuswa’s testimony that his suspicion
that the
plaintiff had committed a Schedule 1 offence rested
predominantly on the information that the financial manager conveyed
to him,
as well as the video footage to which he was granted access.
Mr Marshall informed Sgt Tuswa that he spent two weeks monitoring the
employees and had identified six suspects, including the plaintiff,
whom he placed to one side upon the arrival of the police.
Sgt
Tuswa’s suspicion, at this stage, was based on Mr Marshall’s
word alone. He correctly requested evidence, upon
which Mr Marshall
referred him to the video footage.
[35]
At this point,
improbabilities emerge from Sgt Tuswa’s testimony. He said that
the control room at Cambridge police station
requested him, at about
09h45 on the day in question, to investigate a complaint emanating
from the Steers restaurant in Nahoon.
He had been patrolling in
Vincent at the time with a colleague and arrived at the scene just
before 10h00. He stated that he had
commissioned Mr Marshall’s
statement at 10h30 and did not dispute that the personnel at
Cambridge police station recorded
the detention of the suspects at
10h55. It is highly improbable that Sgt Tuswa had sufficient time to
assess the situation on his
arrival, consult with Mr Marshall, view
the 40 minutes of relevant video footage described in testimony,
obtain a statement from
Mr Marshall, listen to the suspects’
account of what happened, inform them of their constitutional rights,
arrest at least
six suspects,
[14]
request a second police van to assist with transportation, travel to
the Cambridge police station, and hand the suspects over for
detention- all within approximately 55 minutes.
[36]
To the extent that Sgt Tuswa indeed viewed the video footage, it is
improbable
that he was able to watch, intelligibly, a full two weeks’
worth of monitoring within the short amount of time available.
There
is no evidence that he knew any of the employees, including the
plaintiff. There is no evidence that he knew anything about
their
respective duties, shifts, or workstations. Under cross-examination,
Sgt Tuswa could not refute the assertion that the plaintiff
worked in
the kitchen, nowhere near the cash registers. It was, overall,
impossible for him to have formed a reasonable suspicion
regarding
the plaintiff based on the video footage. That he spent 40 minutes
doing so is utterly implausible. Sgt Tuswa seemed
to concede as much
at the end of cross-examination, as apparent from the following
exchange:
‘
ADV
METU:
You had never met the employees before
you watched the footage. Why
not verify whether the plaintiff was in such material?
SGT TUSWA:
I did not verify, Mr Marshall said that he had already watched the
footage.
There was an agreement, too.
ADV METU:
So the arrest was made on the
basis of what Mr Marshall told you?
SGT TUSWA:
Yes. Mr
Marshall was the complainant.
I took into
consideration what he said to me, as well as the footage.’
[15]
[37]
Interestingly, Sgt Tuswa never mentioned the video footage in his
statement,
notwithstanding its importance as a ground for his
suspicion. It was never provided to the plaintiff, it was never
discovered for
trial purposes to corroborate Sgt Tuswa’s
testimony; similarly, the defendant never called Mr Marshall as a
witness. There
was undisputed evidence that the prosecutor involved
in the case requested the investigating officer to clarify how the
video footage
implicated the suspects and that the owner invited the
plaintiff, subsequently, to return to work. Considering all the
above, it
is simply improbable that there was anything in the video
footage that could have given rise to a reasonable suspicion on the
part
of the officer that the plaintiff committed the offence with
which he was charged.
[38]
Counsel for the
defendant referred to
Buso
v Minister of Police
[16]
to contend that
corroboration is not a requirement for a suspicion to be reasonable.
The argument is understood to mean that it
was unnecessary for Sgt
Tuswa to have viewed the video footage for purposes of corroborating
Mr Marshall’s allegations. The
decision in
Buso
,
however, never detracted from the requirement that the officer’s
suspicion, when considered objectively, must be reasonable.
The
financial manager’s allegations on their own were just that:
allegations unsupported by independent facts. They may well
have
given rise to a suspicion on Sgt Tuswa’s part, but short of
anything to support such allegations, it could not be said
that the
officer’s suspicion rested on reasonable grounds. The officer
had a duty, before invoking the drastic powers conferred
by section
40(1)(b) of the CPA, to have at least verified or simply tested Mr
Marshall’s allegations with reference to independent
facts,
especially where ‘hard’ evidence in the form of the video
footage was immediately available. He was obligated
to have
considered this properly and not merely relied on the financial
manager’s word before depriving the plaintiff of
his liberty.
[39]
The defendant relied, too, on the common cause fact that some of the
suspects
were crying and admitted that they were in the wrong. In
argument, counsel emphasised the importance of the interaction
between
Sgt Tuswa and the suspects, pointing out that the plaintiff
never stepped forward to protest his innocence; he kept quiet. There
was no evidence at all, however, that the plaintiff associated
himself with any admissions made by the remaining suspects. To the
contrary, the plaintiff’s testimony was that he challenged the
owner, asserting that there was nothing to link him to the
theft, he
worked in the kitchen at the back of the restaurant. This was never
disputed. Looking at the circumstances of the matter
objectively, it
cannot be said that there were any reasonable grounds for the arrest.
[40]
In argument,
counsel mentioned
Mabona
,
but the decision serves to emphasise the imperative to analyse and
assess, critically, the quality of the information at the officer’s
disposal. It should not be accepted lightly or without checking it,
as happened in the present matter.
[17]
Furthermore, counsel referred to
Biyela
to point out that
the standard of a reasonable suspicion is very low. That may be so
but the court in that matter went on to hold
that a reasonable
suspicion must be based on specific and articulable facts or
information.
[18]
The same
cannot be said of Sgt Tuswa’s suspicion in this case.
[41]
In
De
Klerk v Minister of Police
,
[19]
to which counsel for the plaintiff referred, the Constitutional
Court, per Theron J, observed that:
‘
The principles
emerging from our jurisprudence can then be summarised as follows.
The deprivation of liberty, through arrest and
detention, is
per
se
prima
facie unlawful. Every deprivation of liberty must not only be
effected in a procedurally fair manner but must also be substantively
by acceptable reasons.’
[20]
[42]
The officer in the present matter based his suspicion, on a balance
of probabilities,
merely on Mr Marshall’s say-so. It is
entirely improbable that there was anything in the video footage to
have constituted
a reasonable ground, even if Sgt Tuswa had the time
within which to have watched it properly, which seems most unlikely;
there
was, objectively, no acceptable reason for the arrest of the
plaintiff. Consequently, the defendant’s reliance on section
40(1)(b) of the CPA fails. The fourth jurisdictional fact, enunciated
in
Duncan
, was absent; there were no reasonable grounds upon
which the officer’s suspicion could be said to have rested.
[43]
Even if there had been reasonable grounds for Sgt Tuswa’s
suspicion,
the question arises whether he correctly exercised his
discretion in arresting the plaintiff.
Sekhoto
is authority
for the principle that a decision in that regard must be rational.
The officer’s explanation for the arrest
of the plaintiff and
others in the present matter was that he distrusted them after two
foreign nationals, identified with the
remaining suspects, succeeded
in escaping through a toilet window. There was simply no suggestion,
however, that the plaintiff
would have attempted to do the same. Sgt
Tuswa failed to investigate the plaintiff’s circumstances,
including his address
and the nature of his employment, which was
permanent. It is probable that, faced with Mr Marshall’s
allegations and his
identification and isolation of the suspects as a
fait accompli
, the concessions made by some of them that they
had been in the wrong, and the escape as already described, the
officer succumbed
to pressure and indiscriminately placed them all
under arrest. As counsel for the plaintiff vividly argued, Sgt Tuswa
scooped everyone
into the same net.
[44]
There was no indication that the plaintiff would not cooperate with
the authorities
and stand trial. It cannot be said, in the
circumstances, that Sgt Tuswa’s decision to arrest was rational
and that the consequent
detention of the plaintiff was lawful.
Consequently, the court finds that the defendant’s reliance on
section 40(1)(b) of
the CPA is unsuccessful. It is necessary, at this
stage to consider the quantum to be awarded.
Quantum
of damages
[45]
From the case law,
no clear methodology emerges regarding the determination of quantum.
In
Madze
v Minister of Police
,
[21]
Plasket J
remarked:
‘…
I have
given consideration to comparable cases but they are very much
dependant on their own facts and usually are influenced by
the
conditions that the detainee experienced and their effects on him or
her. Even so, the cases vary from awards that appear on
the generous
side to those that appear to be parsimonious.’
[22]
[46]
Generally, a court’s determination of the award is made
ex
aequo et bono
. In that regard, Dendy observes:
‘
The court must
avoid, on the one hand, sending out a message that there are large
sums of money to be made out of the mistakes which
may be made by
state officials, but on the other hand, the amount should not be
derisory, showing contempt or indifference to the
loss of freedom.
Factors that can play a role are the circumstances under which the
deprivation of liberty took place; the presence
or absence of
improper motive or “malice” on the part of the defendant;
the harsh conduct of the defendants; the duration
and nature (for
example, solitary confinement) of the deprivation of liberty; the
status or standing of the plaintiff; the extent
of the publicity
given to the deprivation of liberty; the presence or absence of an
apology or satisfactory explanation of the
events by the defendant;
awards in previous comparable cases; the fact that, in addition to
physical freedom, other personality
interests such as honour and good
name have been infringed; the high value of the right to physical
liberty; and (it has been held,
though subject to academic criticism)
the fact that the
actio
iniuriarum
also
has a punitive function.’
[23]
[47]
In the present matter, there was no evidence that the plaintiff was a
particularly
well-known or influential member of his community. He
was an ordinary worker at a Steers restaurant, responsible for food
preparation
in the kitchen. There was no evidence that the conduct of
either Sgt Tuswa or his colleague was particularly harsh or
aggressive
at the time of the plaintiff’s arrest. The same
could also be said of the personnel at the Cambridge police station,
who
appeared to have acted indifferently more than anything else.
[48]
It was, however, undisputed that, on the day in question, the
plaintiff was
placed to one side of the restaurant with the remaining
suspects, after which he was arrested and led to an awaiting police
van.
This was done in sight of members of the public. The plaintiff
said that he was, consequently, perceived as a ‘thug’.
The conditions of his detention were, as could have been expected
from so many similar cases, entirely unpleasant. The holding
cell was
cold and unsanitary; open ablution facilities merely served to
undermine the privacy and dignity of a detainee. The personnel
at the
Cambridge police station ignored the plaintiff’s difficulties
with asthma, provided him with inadequate bedding, and
paid no
attention to his requests for assistance. Meals were infrequent and
far from nutritious.
[49]
The plaintiff was in detention for slightly more than 48 hours, from
approximately
11h00 on 24 April 2018 until midday on 26 April 2018.
The experience affected him emotionally, it left him deeply troubled.
[50]
The Supreme Court
of Appeal recently dealt with the subject in
Brits
v Minister of Police and another
.
[24]
The appellant was
the owner of a dealership in second-hand goods and scrap metal; he
was arrested and detained for approximately
one day on a charge of
being complicit in the offence of possession of stolen property. The
court awarded damages of R 70,000 for
unlawful arrest and detention.
In
Diljan
v Minister of Police
,
[25]
heard several
months later, the Supreme Court of Appeal considered a claim for
damages for unlawful arrest and detention brought
by a grandmother
and community caregiver. She had been in custody for almost three
days and kept in appalling conditions. The court
awarded damages of R
120,000 and remarked as follows:
‘…
A word has
to be said about the progressively exorbitant amounts that are
claimed by litigants lately in comparable cases and sometimes
awarded
lavishly by our courts. Legal practitioners should exercise caution
not to lend credence to the incredible practice of
claiming
unsubstantiated and excessive amounts in the particulars of claim.
Amounts in monetary claims in the particulars of claim
should not be
“thumb-sucked” without due regard to the facts and
circumstances of each case. Practitioners ought to
know the
reasonable measure of previous awards, which serve as a barometer in
quantifying their clients’ claims even at the
stage of the
issue of summons. They are aware, or ought to be, of what can
reasonably be claimed based on the principles enunciated
above.’
[26]
[51]
The plaintiff in the present matter has claimed general damages in
the amount
of R 500,000 for having been in detention for slightly
more than 48 hours. The claim, considering the decisions mentioned
above,
is exorbitant.
[52]
Counsel for both
parties referred to several decisions emanating from this division.
In
Nel v
Minister of Police
,
[27]
the court awarded R35,000 to a mother of three children who was
detained, with her two-year-old infant, for a period of less than
20
hours on a charge of possession of
dagga
.
The court in
Madyibi
v Minister of Police
[28]
awarded R40,000 to a businessperson who spent approximately 24 hours
in custody after his arrest for the alleged unlawful demarcation
of
land with his tractor. In
Minister
of Police v Page
,
[29]
a full bench
awarded damages of R 30,000 to a claimant who had been arrested on a
charge of arson and detained for one day.
[53]
More recent
decisions are of assistance, too. In
Shode
v Minister of Police
,
[30]
a full bench
awarded damages of R 40,000 to a claimant who had been detained for
22 hours on a charge of domestic violence. Shortly
after that, in the
unreported decision of
Antonie
v Minister of Police
,
[31]
a full bench
awarded damages of R 50,000 to a claimant who had been arrested on a
charge of domestic violence and detained for a
period of 38 hours.
The court in
Madingana
v Minister of Police
[32]
awarded R80,000 to a former political office bearer and leader in the
African National Congress, his church, and his community,
for having
been incarcerated for 24 hours on a charge of contravening a domestic
violence interdict.
[54]
The above decisions are helpful when considering the quantum to be
awarded
in the present matter.
Relief
and order
[55]
Mindful of the circumstances, the court is satisfied that the
plaintiff’s
claim must be reduced to a considerably more
realistic figure. There is no basis, however, for the adjusted amount
sought during
argument. An award of R 90,000 would seem to be
appropriate and in alignment with the case law.
[56]
The only remaining
issue is that of costs. The general rule applies, and the plaintiff
is entitled to his costs, subject to the
principles that were applied
in
Madingana.
[33]
Considering the award made, the costs must be reduced accordingly.
[57]
In the circumstances, the following order is made:
(a)
the defendant shall pay the plaintiff the amount of R90,000
for
damages;
(b)
interest thereon shall be incurred at the legal rate, calculated
from
the date of service of summons until the date of final payment; and
(c)
the defendant shall pay 80% of the plaintiff's costs, on a
High Court
scale.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the plaintiff:
Adv
Metu
Instructed
by:
Sotenjwa
Attorneys
Global
House, First Floor
3
Pearce Street, Berea
East
London
Tel:
074 575 9674
For
the defendant:
Adv
Nabela
Instructed
by:
Office
of The State Attorney
East
London
Tel:
043 706 5100
Dates
of hearing:
15 –
16 November 2023 and 21
February 2024
Date
of delivery of judgment:
21
May 2024
[1]
Section 40(1)(b).
[2]
[1986] 2 All SA 241 (A).
[3]
At 248.
[4]
[1958] 3 All SA 125 (T).
[5]
At 128.
[6]
[1988] 3 All SA 408 (SE).
[7]
At 410-1. The court also referred to
S
v Nel and another
1980 (4) SA 28
(E).
[8]
2023 (1) SACR 235 (SCA).
[9]
[2011] 2 All SA 157 (SCA).
[10]
At paragraph [39].
[11]
At paragraph [44].
[12]
2004 (1) SACR 131
(TPD).
[13]
At paragraph [9]. See the decision of the erstwhile Appellate
Division in
Minister
of Law and Order and others v Hurley and another
1986 (3) SA 568
(A), at 589E- F.
[14]
The exact number appears to have been more; it was common cause that
the trial bundle indicated that at least eight suspects
were
detained on the day in question.
[15]
Emphasis added. Own transcription.
[16]
2020
JDR 1610 (ECG), at paragraph [51].
[17]
See
n 7,
supra
.
[18]
See
n 8,
supra
.
[19]
2020
(1) SACR (CC).
[20]
At
paragraph [62]. See, too,
S
v Coetzee and others
[1997] ZACC 2
;
1997
(1) SACR 379
(CC), at paragraph 159.
[21]
2015
JDR 2680 (ECG).
[22]
At
paragraph [16].
[23]
M
Dendy, ‘Damages’, in
LAWSA
(LexisNexis
vol 14(1) 3ed 2018), at 115. Footnotes omitted.
[24]
(759/2020)
[2021] ZASCA 161
(23 November 2021).
[25]
(746/2021)
[2022] ZASCA 103
(24 June 2022)
[26]
At
paragraph [20].
[27]
2018
JDR 0016 (ECG).
[28]
2020
(2) SACR 243 (ECM).
[29]
2021
JDR 0757 (ECGEL).
[30]
2022
JDR 1226 (ECM).
[31]
Unreported,
Case no. CA 105/2021, Eastern Cape Division, Makhanda.
[32]
2023
JDR 1063 (ECMA).
[33]
Madingana
,
n 32,
supra
,
at paragraph [49].