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2024
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[2024] ZALMPPHC 19
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Kubayi v Nkana and Others (6593/2017) [2024] ZALMPPHC 19 (7 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 6593/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
07/03/2024
In
the matter between:
JOHN
KUBAYI
PLAINTIFF
And
MAROPENE
FRANS
NKANA FIRST
DEFENDANT
THE
MINISTER OF
POLICE SECOND
DEFENDANT
SOUTH
AFRICAN POLICE SERVICES W/0
WILLIAMS
STATIONED SAPS WESTERNBURG,
POLOKWANE,
LIMPOPO THIRD
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1] The
plaintiff has instituted an action against the defendant for alleged
unlawful arrest and detention,
and malicious prosecution. According
to the plaintiff's particulars of claim, the plaintiff was arrested
on 1st July 2015 at his
place of residence by the third defendant
without a warrant in the presence of the first defendant. Thereafter
the plaintiff was
detained at 19h30 at the instance of the first
defendant, and was ultimately released on bail on 3rd July 2015 when
he appeared
in court. The plaintiff was charged with malicious damage
to property and theft. The charges against the plaintiff were
withdrawn
on 11th January 2016.
[2] The
defendants
have defended
the
plaintiff's
action.
The
first
defendant's
plea
is that of a bare
denial. The first defendant pleaded that he had opened a case of
theft and contravention of a protection order
and that the police did
their investigations. The first defendant denied having assisted the
third defendant in arresting the plaintiff
as he is not a police
officer. The first defendant further pleaded that it was reasonable
of him to have opened a case against
the plaintiff, and that the
second defendant had decided on their own to set the law in motion.
The second and third defendant
in their plea have admitted the arrest
and detention, and have pleaded that the arrest and detention was in
pursuant of the provisions
of
section 40(1)
of the
Criminal Procedure
Act 51 of 1977
.
[3] At
trial, the plaintiff proceeded with his claim against the second and
third defendants (defendants)
only on claim 1 which relates to
unlawful arrest and detention. At the commencement of the trial, the
defendants conceded to merits
100% in favour of the plaintiff in
relation to his unlawful arrest and detention. However, the parties
could not agree on quantum,
and the court is called upon to determine
the issue of quantum only.
[4] The
plaintiff was the only witness to testify for his case. He testified
that he was arrested on
1
st
July 2015 at 19h30 and
released on 3rd July 2015 at 9h30. He was arrested at his workplace
which is a farm where he also resides.
At the time of his arrest he
was with his brother and sister-in-law. He was pained by the way he
was arrested. When he was arrested,
the police accused him of having
stolen a wire.
[5] The
police came to the farm in the company of the first defendant, and
also using the first defendant's
vehicle. The police told the
plaintiff to accompany them to the police station in order to make a
statement. After making a statement
at the police station, the police
and the first defendant told him to go to the holding cells. In the
cells it was difficult to
sleep. They were sleeping on the floor and
other boys will come and take away their blankets. He was not used to
the situation,
and that made him to be unable to sleep as he was
frightened. The younger cell mates will search the plaintiff looking
for cigarettes.
The young cell mates will also take food away from
the plaintiff. The cell in which the plaintiff was held was dirty and
mixed
up. The toilet was dirty, and he could not use it for two days.
It was during winter time and cold in the cell. The cell was also
overcrowded.
[6] The
arrest had affected him emotionally and even up to date he is still
affected. After he was
released from the cells, the community members
from the village that he comes from will shout at him, and refer to
him as an old
man who is a thief. In the community he was known as a
good man. He did attend school, and did not hold any position in the
community.
[7] The
plaintiff was cross examined and he stated that the blankets were
taken from him on his admission
in the cells. When asked why he did
not report the incident to the police in charge of the cell, he
stated that he did not know
that he had to report, as it was for the
first time he was arrested. The plaintiff stated that he did not eat
for two days as the
young cell mates were taking food meant for him.
He conceded that he did not report to the police in charge that the
young cell
mates were taking food meant for him. That concluded the
evidence of the plaintiff and he closed his case.
[8] The
defendants called Hendrik Boetie Williams as the only witness to
testify for their case. He
testified that he is a member of the SAPS,
warrant officer by rank, and stationed at Westernburg police station.
He is the one
who had arrested the plaintiff at a certain farm where
he worked around 19h00 to 20h00. On arrival at the farm he
interviewed the
plaintiff, and the plaintiff told him that his
employer had instructed him to go and remove the fence of the first
defendant. After
interviewing the plaintiff, he arrested him and took
him to the police station where he detained him.
[9] When
they
arrive
at
the
police
station,
supper for
the
inmates was
already served as it
is served between 17h00 and 18h00. It is possible that the young
inmates might have taken food from the plaintiff,
but if that had
happened, the plaintiff could have asked for more food from police
officers in charge of the cells. The holding
cells are always clean,
and they are been cleaned every morning and during the day. Toilets
are clean and in good condition. They
never received any complaint
about the plaintiff been illtreated. The cells are been regularly
inspected to avoid inmates killing
each other. During eating time,
there will always be a police officer who will be monitoring them.
The plaintiff is lying when
he testified that food was taken from
him.
[10] The
witness was cross-examined and he stated that he took the plaintiff
to Polokwane holding cells as Westernburg SAPS
work hand in hand with
SAPS Polokwane. Further that he knows how Polokwane SAPS operate and
that at one stage he was stationed
at Polokwane SAPS. The witness
conceded that he did not see the toilet that the plaintiff was using,
as he did not go to the holding
cells. The witness denied that he was
using the first defendant's vehicle when he went to the farm to
arrest the plaintiff, but
that he was using the police vehicle. That
concluded the evidence of the defendants and they closed their case.
[11] The
plaintiff in addressing the court on the reasonable and fair damages
to be awarded to the plaintiff, submitted that
at the time of his
arrest the plaintiff was 60 years of age, and was held in the cells
that were unhygienic, terrible and overcrowded.
The plaintiff's
counsel referred this court to the case Claasen who was the
plaintiff's employer and was arrested together with
the plaintiff. In
Claasen's case the full bench of this division had awarded him R400
000.00 as damages he had suffered. Claasen
was also 61 years old at
the time of his arrest. However, counsel for the plaintiff conceded
that the circumstances under which
Claasen was arrested are slightly
different from the plaintiff's case, and therefore a fair and
reasonable amount to be awarded
to the plaintiff should be R300
000.00. Counsel for the defendant submitted that the plaintiff
appears to be exaggerating his case,
and that a fair and reasonable
amount to awarded to him should be R60 000.00.
[12]
It
is trite that in the assessment of damages for unlawful arrest and
detention, it is important to bear in mind that the primary
purpose
is not to enrich the aggrieved injured party but to offer him or her
some much-needed solatium for his or her injured feelings.
It is
therefore crucial that serious attempts be made to ensure that the
damages awarded are commensurate with the injury inflicted.
The
courts should be astute to ensure that the awards they make for such
infractions reflect the importance of the right to personal
liberty
and the seriousness with which any arbitrary deprivation of personal
liberty is viewed in our law. It is impossible to
determine awards of
this nature with any kind of mathematical accuracy. It is helpful to
have regard to awards made in previous
cases to serve as a guide,
however, such approach should not be slavishly followed. (See
Minister
of Safety and Security v Tyulu
[1]
).
[13]
In
Motladile
v Minister of Police
[2]
F
Kathree-Setiloane AJA said:
"The
assessment of the amount of damages to award a plaintiff who was
unlawfully arrested and detained, is not a mechanical
exercise that
has regard only to the number of days that the plaintiff had spent in
detention. Significantly, the duration of the
detention is not the
only factor that a court must consider in determining what would be
fair and reasonable compensation to award.
Other factors that a court
must take into account would include (a) the circumstances under
which the arrest and detention occurred;
(b) the presence or absence
of improper motive or malice on the part of the defendant; (c) the
conduct of the defendant; (d) the
nature of the deprivation; (e) the
status and standing of the plaintiff; (f) the presence or absence of
an apology or satisfactory
explanation of the events by the
defendant; (g) awards in comparable cases; (h) publicity given to the
arrest; (i) the simultaneous
invasion of other personality and
constitutional rights; and U) the contributory action or inaction of
the plaintiff'.
[14] The
plaintiff had spent two nights and two days in the holding cells. The
manner in which he was arrested was not that
inhuman. However, the
plaintiff seems to exaggerate the conditions in which he had to
endure whilst in the cells. I find it to
be improbable that for the
two nights and two days he had spent in the cells he did not use a
toilet because it was not clean.
It is improbable that he was able to
hold the call of nature for two nights and two days taking into
consideration his advanced
age of 60 at the time of his arrest. It is
possible that the toilets were not clean, but not that he was unable
to use them because
they were not clean.
[15] The
plaintiff has also relied on the case of his employer Johannes
Claasen who was awarded damages of R400 000.00 for
unlawful arrest
and detention by the full court of this division. Even though the
Claasen case emanate from the incident which
led to plaintiff being
arrested, the facts of the Claasen case is distinguishable from the
plaintiff's case. According to the facts
of the Claasen case, he was
physically dragged out of his property, shoved into the police van,
and he struggled to get into the
police van as his hands were
handcuffed behind his back. During his arrest he suffered an injury
to his elbow which caused tremendous
pain and suffering. All these
did not happen to the plaintiff, and as I have already pointed out
above, the plaintiff was arrest
was not that inhumane. There is no
evidence led that there was any malice or improper motive in
arresting the plaintiff. There
was no evidence led that the arrest of
the plaintiff was highly publicised. The plaintiff has testified that
he did not hold any
position in the community that he comes from.
[16]
In
Motladile
case the appellant had remained in custody for
five days and four nights. Whilst in custody the appellant was
assaulted by other
inmates who also stole his food. The Supreme Court
of Appeal had upheld the appeal and awarded the appellant R200
000.00. In the
plaintiffs case they stole his food and blankets but
was never assaulted. The plaintiff did not take any steps to bring it
to the
attention of the police officers in charge of the holding
cells that his food and blankets were stolen from him. In my view, a
fair and reasonable amount to be awarded to the plaintiff will be the
amount R100 000.00 for the unlawful arrest and detention.
[17]
With
regard to costs this was not a long and complicated matter, and in my
view, the appropriate scale should be that of magistrate
court.
[18]
In
the result the following order is made:
18.1
The
second and third defendants are jointly and severally ordered to pay
the plaintiff the sum of R100 000.00 with costs on party
and party
scale on a magistrate court scale.
18.2
The
claim of malicious prosecution is postponed
sine
die.
KGANYAGO
J
JUDGE
OF OURT OF SOUTH AFRICA,
LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for
the
plaintiff: Adv
JP Morton
Instructed
by
:
Chari
Naude Attorneys
Counsel
for 2nd and 3
rd
defendants: Adv
S Mbali
Instructed
by: State
Attorney Polokwane
Date
heard: 14th
February 2024
Electronically
circulated on: 7
th
March 2024
[1]
2009
(S) SA 85 (SCA) at para 26
[2]
(2023]
ZASCA 94;
2023 (2) SACR 274
(SCA) (12 June 2023) at para 17