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2024
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[2024] ZAMPMBHC 78
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Banda v Minister of Police (A40/24) [2024] ZAMPMBHC 78 (29 October 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA MAIN SEAT
Case Number: A40/24
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHERS JUDGES:
YES
/NO
(3)
REVISED
DATE
29/10/2024
SIGNATURE
In the matter between:
NICOLUS
BANDA
Appellant
and
MINISTER
OF POLICE
Respondent
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 29 October 2024.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
COETZEE, AJ
INTRODUCTION
:
[1]
This is a full bench appeal against the
judgment handed down on the quantum portion of a claim by Regional
Magistrate T. Nyambi,
at the Mbombela Regional Court (“the
court
a quo
”),
on the 25
th
of April 2024. The court
a quo
awarded the Appellant the sum of R75 000.00 (Seventy-Five Thousand
Rand) as compensation for the unlawful arrest and subsequent
three-days’ detention of the Appellant.
BACKGROUND
AND EVIDENCE
:
[2]
The merits of the claim were previously
conceded by the Respondent. The matter proceeded to trial solely on
the issue of quantum.
The Appellant called one witness, the
Appellant, to testify. The Respondent closed its case without calling
any witnesses.
[3]
The evidence led by the Appellant, which is
undisputed between the parties, is that on 11 February 2021, at
approximately 07:00,
he was arrested at his residence in Nsikazi. Two
motor vehicles, one marked as belonging to the police and the other
unmarked,
arrived at his home. Eight police officers were present
during the arrest, which was witnessed by the Appellant's neighbors.
The
police officers knocked on his door and requested that he
accompany them to an office in Kabokweni for further inquiries, a
request
to which the Appellant complied.
[4]
Upon arriving at the office, the police
officers questioned the Appellant regarding his knowledge of a
particular crime, to which
he responded that he had no knowledge.
Thereafter, at around 15:00, he was transported in a police van to
White River, where he
was detained in a cell containing approximately
20 to 30 other individuals. The Appellant testified that the
conditions in the
cell were unsanitary, as it was filthy, and he was
provided with only a small cloth for personal hygiene. The blanket he
received
was also dirty. He remained in the cell from Friday until
his release on Monday at approximately 12:00.
[5]
The Appellant further testified that he is
unmarried and has three children, aged 15, 8, and 5 years,
respectively. He described
the arrest as a deeply distressing
experience and expressed that his reputation within the community had
been tarnished, with neighbors
now referring to him as a thief. While
unemployed at the time of his arrest, the Appellant stated that
subsequent attempts to secure
employment were unsuccessful, allegedly
due to his damaged reputation.
[6]
After evaluating the evidence, the court
a
quo
found that an award of R25,000 per
day of unlawful detention was fair and reasonable, resulting in a
total award of R75,000, which
was granted in favor of the Appellant,
together with costs of the trial.
GROUNDS
FOR APPEAL
:
[7]
The main ground of appeal advanced by the
Appellant is that the Magistrate erred in failing to consider all the
proven facts in
determining the quantum of damages. The Appellant
contends that, had the Magistrate properly considered the entirety of
the evidence,
a just and equitable award for the unlawful arrest and
detention would have been R400,000.00.
PRINCIPLES
APPLICABLE ON APPEAL
:
[8]
In
Director
of Public Prosecutions, Eastern Cape, Makhanda v Coko
[1]
the Supreme Court of Appeal (the SCA) reiterated that the powers of
an appeal court to interfere with the trial court’s factual
findings, are circumscribed. Thus, the appeal court is not at large
to interfere unless it is satisfied that the trial court committed
material misdirection or a demonstrable blunder in evaluating the
evidence. The SCA quoted from its earlier judgment of
R
v
Apter
and Apter
[2]
where
the Appellate Division (as it was then known) said:
“
[W]here
the judicial officer in the trial court has taken every point into
consideration and has not misdirected himself or been
guilty of any
error of law, an appeal court, in a case in which the ground of
appeal is that the trial court ought to have had
a doubt, will not be
entitled to interfere with the verdict unless it is satisfied that
the trial court ought to have had a doubt
…”
[9]
It
has further been stated in
R
v Dhlumayo & Another
[3]
that:
"The
trial court has advantages which the appellate court cannot have - in
seeing and hearing the witnesses and in being steeped
in the
atmosphere of the trial. Not only has the trial court had the
opportunity of observing their demeanour, but also their appearance
and whole personality. This
should
never be overlooked. The mere fact that the trial court has not
commented on the demeanour of the witnesses can hardly ever
place the
appeal court in as good a position as it was. Even in drawing
inferences the trial court may be in a better position
than the
appellate court, in that it may be more able to estimate what is
probable or improbable in relation to the particular
people whom it
has observed at the trial... The appellate court should not seek
anxiously to discover reasons adverse to the conclusions
of the trial
court.... Where the appellate court is constrained to decide the case
purely on the record, the question of onus becomes
all-important.
In order to succeed, the appellant has to satisfy an appellate court
that there has been 'some miscarriage
of justice or violation of some
principle of law or procedure".
QUANTUM
:
[10]
In the matter of
Minister
of Safety and Security v Tyulu
2009 (5)
SA (SCA) at paragraph 26, the Supreme Court of Appeal held as
follows:
“
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 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. However our
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. I readily concede that
it is impossible to determine an award of
damages for this kind of injuria with any kind of mathematical
accuracy. Although it
is always helpful to have regard to awards made
in previous cases to serve as a guide, such an approach if slavishly
followed can
prove to be treacherous. The correct approach is to have
regard to all the facts of the particular case and to determine the
quantum
of damages on such facts (Minister of Safety and Security v
Seymour
2006
(6) SA 320
(SCA)
325 para 17; Rudolph & others v Minister of Safety and Security &
others (380/2008)
[2009]
ZASCA 39
(31
March 2009) (paras 26-29)
.”
[11]
In
Protea
Assurance Co Ltd v Lamb
1971
(1) SA 530
(A)
at page 535G – 536B the then court held:
“
It
should be emphasized, however, that this process of comparison does
not take the form of a meticulous examination of awards made
in other
cases in order to fix the amount of compensation; nor should the
process be allowed so to dominate the enquiry as to become
a fetter
upon the Court's general discretion in such matters. Comparable
cases, when available, should rather be used to afford
some guidance,
in a general way, towards assisting the Court in arriving at an award
which is not substantially out of general
accord with previous awards
in broadly similar cases, regard being had to all the factors which
are considered to be relevant in
the assessment of general damages.
At the same time, it may be permissible, in an appropriate case, to
test any assessment arrived
at upon this basis by reference to the
general pattern of previous awards in cases where the injuries and
their sequelae may have
been either more serious or less than those
in the case under consideration.
”
[12]
In
the matter of
Pitt
v Economic Insurance Co Ltd
1957
(3) SA 284
(N)
at page 287E the court held as follows: “…
the
Court has to do the best it can with the material available, even if,
in the result, its award might be described as an informed
guess.
I have only to add that
the
Court must take care to see that its award is fair to both sides -
it
must give just compensation to the plaintiff but must not pour our
largesse from the horn
of
plenty at the defendant's expense.
”
(own underlining)
[13]
It
was stated by Makaula AJA in
Diljan
v Minister of Police
(Case no 746/2021)
[2022]
ZASCA 103
(24
June 2022) at paragraph 18, “
the
acceptable method of assessing damages includes the evaluation of the
plaintiff’s personal circumstances; the manner of
the arrest;
the duration of the detention; the degree of humiliation which
encompasses the aggrieved party’s reputation and
standing in
the community;
deprivation
of liberty; and other relevant factors peculiar to the case under
consideration.
”
COMPARABLE
CASE LAW
:
[14]
In
Ngwenya v
Minister of Police
2019 (7K6) QOD 484
(NWM), the court, having previously determined that the plaintiff, a
48-year-old male, had been unlawfully arrested
and detained,
proceeded to assess the quantum of damages at a subsequent hearing.
The plaintiff had been arrested on a Friday morning
and detained over
the weekend in a police cell with fourteen other inmates who
confiscated his food. He was compelled to share
a blanket with a
younger inmate and was severely assaulted by other detainees. He was
released by the court the following Monday.
In determining the
appropriate award for damages, the court considered several factors,
including the plaintiff's age, the circumstances
of his arrest, the
nature and duration of his detention, and the alleged assault,
despite the absence of medical evidence regarding
the latter. Taking
these factors into account, the court awarded damages in the amount
of R45,000.00 in 2019, which, when adjusted
for inflation, equates to
approximately R57,000.00 in 2024.
[15]
In
Tsele and
Another v Minister of Police
2021 (8K6)
QOD 115 (NWM), the two plaintiffs, who are brothers, were arrested on
29 November 2018 and subsequently released on
3 December 2018. The
first plaintiff was arrested at approximately 08:00, and the second
plaintiff was arrested later that day
at around 14:30. Both were
initially taken to Lehurutshe Police Station before being transferred
at approximately 20:00 to Groot
Marico Police Station, where they
were detained in a cell with approximately fifteen other individuals.
They remained in detention
until 3 December 2018, when they were
brought before the District Court of Lehurutshe, where they were
informed that the charges
against them had been withdrawn. The first
plaintiff was detained for just over four days, while the second
plaintiff was detained
for approximately three and a half days, both
being released around 10:00 on 3 December. The conditions in
the police cell
were poor. The plaintiffs had to share a single
blanket and slept on the floor. Although meals were provided,
consisting mainly
of porridge, beans, tea, and bread, the food was of
low quality. They were also deprived of basic toiletries and had to
share a
facecloth, which they received from a fellow inmate. Upon his
release, the first plaintiff experienced social ostracism within his
community due to the negative perceptions stemming from his arrest.
Considering the circumstances under which the plaintiffs were
arrested, the humiliation and distress they endured during their
unlawful detention, and the deplorable conditions in the cell,
the
court deemed it fair, reasonable, and just to award damages at a rate
of R15,000.00 per day or part thereof. Accordingly, the
second
plaintiff, who was detained for approximately three and a half days,
was awarded R52,500.00 in 2021, which, when adjusted
for inflation,
amounts to R62,000.00 in 2024.
[16]
In
Lesomo v
Minister of Police
2023 (8K6) QOD 315
(NWM), the plaintiff, a 30year-old male, received a message on 2
December 2016, instructing him to report to
the police station
concerning a criminal charge laid against him. The plaintiff complied
and presented himself at the police station
the same day. However, in
the absence of the officer who had initially contacted him, another
officer called his colleague, who
instructed him to arrest the
plaintiff. The plaintiff was summarily arrested and detained from 2
December 2016 to 5 December 2016
without being informed of the
charges under investigation. No formal charges were laid against him
during this period. The
plaintiff was held in a small cell with
five other detainees under unhygienic conditions. There was no
running water in the cell,
and the detainees were unable to wash
themselves. The food provided was of poor quality, and they were
forced to sleep on the floor
with only blankets for comfort. Despite
being detained for several days, the plaintiff was released without
appearing before a
court. As a result of the arrest, the
plaintiff, who is the father of six children, lost his employment.
Having considered
the circumstances of the unlawful arrest and
detention, the conditions of his detention, and the impact on his
livelihood, the
court awarded the plaintiff damages in the amount of
R75,000.00 in 2023, which is adjusted to R79,000.00 in 2024 terms.
CONCLUSION
:
[17]
Upon a thorough consideration of the
evidence presented and the applicable legal principles, this Court is
satisfied that the court
a quo
did not misdirect itself in its assessment of the quantum of damages.
The Regional Magistrate carefully evaluated the uncontested
evidence
regarding the circumstances of the Appellant’s arrest, the
conditions of his detention, and the emotional and reputational
harm
suffered as a result. The award of R75,000.00, based on a rate of
R25,000.00 per day for the three days of unlawful detention,
was fair
and reasonable under the circumstances.
[18]
The Appellant’s contention that the
Regional Magistrate failed to consider all proven facts, and that an
award of R400,000.00
would have been just, has not been substantiated
by any demonstrable misdirection or error in law by the court
a
quo
. As indicated above, it is
well-established that an appellate court will not interfere with the
factual findings of a trial court
unless material misdirection or a
clear error is evident. In this instance, no such misdirection or
error has been shown.
[19]
The trial court's findings were consistent
with the evidence and supported by appropriate legal reasoning. In
the absence of any
material misdirection or demonstrable error, the
appeal must fail, and the judgment of the court a quo is upheld.
Accordingly,
the following order is made:
ORDER:
[20]
The appeal is dismissed, with costs.
L. COETZEE
ACTING JUDGE OF THE
HIGH COURT
MPUMALANGA DIVISION,
MBOMBELA
I agree.
TV RATSHIBVUMO
ACTING DEPUTY JUDGE
PRESIDENT
MPUMALANGA DIVISION
Appearances:
Attorney
for the Appellant:
M.P.
Maseko
Instructed
by:
MP
Maseko Inc.
Attorney
for the Respondent:
M.
Mdluli
Instructed
by:
State
Attorney, Mbombela
Date
heard:
02
August 2024
Judgment
delivered:
29
October 2024
[1]
(248/2022)
[2024] ZASCA 59
(24 April 2024) at par. 38.
[2]
See
reference made in R v Dhlumayo
1948 (2) SA 677
(A) at p. 687.
[3]
1948
(2) SA 677
(A) at 705-706.