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2024
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[2024] ZAFSHC 279
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Mosala v Minister of Police (2753/2021) [2024] ZAFSHC 279 (3 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 2753/2021
In
the matter between:
TUMELO
DAVID MOSALA
Plaintiff
and
MINISTER
OF POLICE
Defendant
Coram
:
PR Cronjé, AJ
Heard
:
23 August 2024
Delivered
:
03 September 2024
Summary
:
Unlawful arrest and detention – plaintiff unarmed and naked at
arrest – malice - girlfriend pregnant – lack
of privacy
in police and correctional services holding cells – lack of
sheets and blankets – lack of medical care -
child born when in
custody
ORDER
1.
The Defendant shall pay the Plaintiff R1 000 000.00 (one
million rand) for general damages.
2.
Defendant pays the Plaintiff’s costs, counsel’s fees to
be taxed on scale B.
JUDGMENT
Cronjé
AJ
Introduction
[1]
The plaintiff instituted action against
the defendant for his unlawful arrest on 15 September 2020 and his
subsequent detention.
On 14 February 2024, Reinders J ordered that
the merits and quantum be separated as the defendant conceded merits
and liability.
The defendant was ordered to pay the plaintiff’s
taxed party-and-party cost to date of that order. Only the quantum of
the
plaintiff’s claim remains to be determined.
[2]
The plaintiff pleaded that as a result
of his unlawful arrest, alternatively apprehension and the unlawful
detention by members
of the defendant, he suffered damages in the
amount of R5 million based on the deprivation of his liberty, the
injury to his person,
being humiliated and traumatised, his right of
security and safety being injured, injury to his reputation, being
subjected to
adverse circumstances, being detained in a police cell
for two days and for approximately seven months in the Grootvlei
Correctional
Services facility (Grootvlei), loss of income for a
period of more than seven months, and being offended by acts of the
members
of the defendant.
[3]
The amounts reflected in the heads of
damage are as follows:
(i)
Unlawful arrest – R500 000.00;
(ii)
Unlawful detention – R4 000
000.00;
(iii)
Pain and suffering – R300 000.00;
(iv)
Humiliation, discomfort, degradation and
contumely – R140 000.00;
(v)
Loss of earnings – R60 000.00.
[4]
Only the Plaintiff testified. The
Defendant did not call witnesses and closed its case.
Evidence
of the Plaintiff
[5]
He is 39 years old and was born on […]
F[…] 1985. He has a Grade 10 qualification, is unmarried but
has two children:
a son of three years (born 1[…] J[…]
2021) and a one-year old daughter (born 1[…] M[…]
2023). His son
stays with him while his daughter stays with her
mother. At the date of his arrest, he was self-employed, making a
living by selling
vegetables door-to-door. If business went well, he
earned R450.00 on a good day and about R2 700.00 over a fortnight. He
ordinarily
stayed with one Lerato, his son’s mother, at the
time when he was arrested. At that stage, she was five months
pregnant and
gave birth to his son whilst he was in custody.
[6]
When the police arrived at his flat, he
was upstairs in his room whilst Lerato made breakfast for them. He
heard her screaming,
and she sounded frightened. He was naked and
went downstairs, where he saw the police officers carrying firearms.
He was informed
that they were there to arrest him. He did not know
what type of firearms they had, but one of them had a big/long gun.
The other
two carried firearms on their waists. The firearms were
pointed at him, and they shouted that he must go down on the floor,
to
which he complied. The arrest took place not long after he was
discharged from the hospital as he had an open fracture to his leg.
At the date of his evidence, the wound has not yet healed, and he
still has to receive physiotherapy.
[7]
When he enquired the reason for his
arrest, various reasons were mentioned,
inter
alia
, that there was footage of a
robbery that was committed at a certain shop. He told them that it
was impossible for him to have
been involved in the robbery and
showed them the operation he had on his right leg. All three police
officers could see the injury
and could notice that he was unable to
walk properly as he had a limp. He suggested they approach Pelonomi
Hospital to see when
he was admitted and discharged. Naturally, he
was heartbroken and upset when they did not heed his request. He was
handcuffed and
led to the vehicle. Lerato was crying when he was
handcuffed. When taken outside his flat, he saw people at the carwash
but could
not state whether they observed him. On the way to the
vehicle, one Sharon and members of a group saw him and the police
moving
towards the exit. He assumed that they were looking at them,
but he could not state how many people watched; he estimated it could
be about seven or eight persons. He was well-known in that particular
part of Brandwag as it is where he normally makes his door-to-door
deliveries; even small boys from a gang knew him well, as he used to
chase them away.
[8]
At the police station, he was informed
that he had many criminal cases against him and was then detained in
a cell. The cell was
room-like, with a toilet and shower. The toilet
was shielded by a wall approximately 800mm tall; if standing at a
certain point,
people could see the person sitting on the toilet.
According to him, the shower was not covered for privacy, which was
unnecessary
in any event as the cell had intermittent running water,
which, when available, was cold. When he arrived, five to six other
detainees
were also in the cell. These factors made showering highly
impractical. He could not sleep well in the cell and knew Lerato was
alone. He was kept at the police station for two days before he was
taken to court. After appearing in Court, he was taken to Grootvlei
where he was detained there for seven months until 29 April 2021.
[9]
In the admission cell at Grootvlei, many
persons were brought from various police stations and all were
required to share the only
available toilet and shower. He was taken
to the clinic the following day and placed in another holding cell
with, what he estimated
to be, about forty other persons. This cell
had two basins, one toilet, one shower and only eight beds. The
rest of the detainees
had to sleep on mattresses on the floor. This
necessitated additional sheets or blankets as the sponges on which
they slept were
very thin. These sheets and blankets were the
personal property of the detainees and doubled up for curtains when
they went to
the toilet or had to shower.
[10]
The fact that he was arrested and
detained did not go down well with him, and at a point, there was
also a fight with gangsters.
He left Lerato pregnant in the flat,
which made him well unwell.
[11]
At Grootvlei, he requested a check-up on
his leg injury and was informed that he had to obtain a special
letter showing that he
needed treatment. This, naturally, had to come
from outside Grootvlei. He stated that he had mentioned before he was
detained that
he needed aggressive physiotherapy, which he never
received, and Grootvlei did not call Pelonomi Hospital.
[12]
When his son was born, he was still
detained, which made him feel sad. He was upset when he was arrested
in front of Lerato, and
he tried to comfort her, stating that
everything would be okay and that she must not despair. He was
ashamed, knowing that people
were watching and that he was leaving
someone behind.
Cross-examination
[13]
During cross-examination, he was
questioned about the age of his child and admitted that he made an
incorrect calculation.
[14]
When he went downstairs when the police
arrived, he could not use both legs, on account of his injury, and
jumped on one leg. Furthermore,
he admitted that he had been arrested
before, but could not recall how often. He confirmed that he sold
vegetables, and before
his arrest, he once did a piece-job at a One
Stop filling station as a petrol attendant. When confronted with his
allegation in
his particulars of claim that he was doing piece-jobs
at the time of his arrest and earning an amount of R4 000.00 per
month, he
stated that he did not lie as he did piece-jobs and was
self-employed. He left it to the Court to decide which version was
correct.
He explained that when he consulted with his attorney, he
was asked whether he was working or employed on piece jobs. The only
explanation he proffered was that there must have been a
misunderstanding, as both statements were correct.
[15]
The police officers who came to arrest
him were not in uniform, and he did not know what was happening at
the time. He believes
that persons in the vicinity knew that the
persons were police officers, even though they did not wear uniforms
or came with an
unmarked vehicle, as under normal circumstances,
ordinary people do not carry big guns like that. Despite his
statements, he could
not provide proof that he was well-known in the
area.
[16]
When he was subsequently detained upon
his arrival at the police station, he only used the toilet at the
police station to urinate,
which was in working condition. When
confronted with his version that there was no running water in the
cell, he stated that he
meant that there was only cold water.
[17]
He told the wardens at Grootvlei that he
needed aggressive physiotherapy. There was a clinic and a hospital at
Grootvlei. The procedure
at the clinic was merely to check on whether
the detainees had TB and HIV or needed any other treatment. He
complained, and if
he received the required attention, he would have
been able to bend his leg. A detainee can visit the clinic on
Wednesdays, and
he attended it regarding his leg but was told that
there were no facilities to give him the required treatment. He can
now bend
his leg 45 degrees due to assistance from the inmates but it
would be fruitless to go to Pelonomi Hospital after his release as
he
was supposed to receive physiotherapy four weeks after the removal of
the stitches. Up to the date of the trial, he has never
undergone any
form of physiotherapy.
[18]
The Defendant did not call witnesses and
closed its case.
Loss
of income
[19]
As a point of departure, I am not
satisfied that Plaintiff’s evidence concerning his employment
and the quantum thereof has
been credibly proven. As such, no
compensation will be granted in this regard.
Arguments
for the Plaintiff
[20]
Mr
Nkhahle refers to
Minister
of Safety and Security v Tyulu
[1]
where
it was held:
‘
[26]
In assessing 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 them some much-needed
solatium
for their 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).’
[21]
In
Masisi
v Minister of Safety and Security
[2]
(
Masisi
)
it was held that:
‘
[18]
The right to liberty is an individual's most cherished right, and one
of the foundational values giving inspiration to an ethos
premised on
freedom, dignity, honour and security. Its unlawful invasion
therefore strikes at the very fundament of such ethos.
Those with
authority to curtail that right must do so with the greatest
circumspection and sparingly. In Solomon v Visser and Another
1972
(2) SA 327
(
C) at 345A it was remarked that where members of the police
transgress in that regard, the victim of abuse is entitled to be
compensated in full measure for any humiliation and indignity which
result. To this I add that where an arrest is malicious, the
plaintiff is entitled to a higher amount of damages than would be
awarded, absent malice.
[19]
In the present case, the arrest in itself was undoubtedly and
decidedly malicious, the execution thereof despicable and
humiliating.
I take into account the short duration of the detention
- just over 4 hours; the fact that the plaintiff did not suffer any
further
indignity of being handcuffed or fingerprinted, and that the
publicity of the arrest was very limited. Having regard to the above
factors, the complementary persona! circumstances of the plaintiff,
the awards made In previous comparable cases, as well the
deterioration in the value of the currency over the years, I deem R65
000 to be an appropriate amount.’
[22]
He argues that the Defendant’s
officers were malicious in that they saw the injury he had on account
of the operation, and
notwithstanding requesting them to establish
for themselves whether this was correct, it was ignored. They
expressed brutal aggression
by pointing at him with firearms when he
was naked and unarmed.
Masisi
supra
rings familiar.
[23]
In
Lifa
v Minister of Police and Others
,
[3]
t
he
plaintiff was incarcerated for three months and six days, claiming
R30,000.00 for each day spent in custody. The court found
that being
arrested is a highly traumatic event in itself
.
However, he was not subjected to torture nor detained in front of his
peers or any other members of the community. In the result,
he was
awarded
compensation of R600 000.00.
[24]
In
Jongile
v Minister of Police,
[4]
the plaintiff was awarded R1 050 000.00 for six (6) months’
detention. In
De
Klerk v Minister of Police
,
[5]
the
plaintiff was awarded R300 000.00 for approximately seven (7) days of
incarceration
.
[25]
In
Rathebe
v Minister of Police and Another
[6]
Naidoo
J found that no evidence was placed before the court of any serious
physical or medical
sequelae
to the plaintiff due to his arrest and detention. It was accepted
that he was traumatised by his arrest and subsequent incarceration
and his freedom was severely curtailed. He suffered emotional
distress and suffered severe humiliation and degradation. The
p
laintiff
was awarded R300 000.00 for unlawful arrest and detention for less
than a month.
[26]
The submission is made that this court
should order compensation between R2 500 000.00 to R3 000 000.00.
Arguments
for the Defendant
[27]
Mr
Manye relies on
Brits
v Minister of Police & Another
[7]
(
Brits
)
where it was held that:
‘
[33]
. . . Although awards of damages made in previous decisions may serve
as a guide in considering an appropriate
amount of damages for the
injury resulting from unlawful arrest and detention, such awards are
not to be followed slavishly, for
every case must be determined on
its facts. It must be borne in mind that the primary purpose of
an award of damages for unlawful
arrest and detention is not to
enrich the aggrieved party but to offer him or her some solatium for
their injured feelings.’
(Footnote omitted.)
[28]
In
Pitt
v Economic Insurance Co Ltd
[8]
the
court stated that:
‘
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 it must not pour out largesse from the horn of plenty
at the defendant's expenses.’
[9]
[29]
He argues that the Plaintiff was
a sole witness who had previously encountered the law. Furthermore,
he makes the argument that
the Plaintiff does not have a mild
personality or good repute in society, and it cannot be said that,
notwithstanding the unfortunate
unlawful arrest and detention, it
truly dented his dignity and humiliated him.
[30]
In
Manyoni
v Minister of Police and Another
[10]
(
Manyoni
)
,
R
744 000.00 was awarded for approximately eight months of
detention while
in
Nontsele
v Minister of Police and Another
[11]
(
Nontsele
),
the
plaintiff was kept in detention for 467 days on a false charge of
rape and was awarded R1 600 000.00.
[31]
He argues that there were no unusual
features under which the Plaintiff was arrested and detained. It
cannot be said that his experience
was harrowing, as he admitted he
has had several past brushes with the law. Furthermore, the Plaintiff
never testified to any harassment,
assault, or deprivation of food
while he was detained and only during cross-examination did he state
that the inmates assisted
him with physiotherapy. Also, the detention
was not of such a nature that the cell was unfit for occupation. Such
being the case,
he submits that an amount between R800 000.00 and
R900 000.00 would be fair.
Overview
of case law
[32]
In
July
v Minister of Police
,
[12]
the
plaintiff was detained in a very unclean cell with 30 other inmates.
There was no privacy, as inmates would relieve themselves
while
others ate on account of there being only one toilet that was to be
shared among the 30 inmates. They would all take turns
to clean the
toilet. On his arrival, the other inmates threatened and bullied him.
About the food they were given, the plaintiff
testified that the food
was bad, and the pap they were given to eat was not edible. He did
not eat the pap at first, but as time
passed, he did, as he had no
other option. At the time of his arrest, his girlfriend was pregnant.
He later learnt that she had
a miscarriage, which made him sad as he
could do nothing to help her. When he returned home after his
release, she left as she
was alone while members of the community
mocked him and stigmatised him for being a murderer, singing songs
they composed about
his arrest.
The
court found a wanton disregard for the importance of personal liberty
entrenched in the Constitution and awarded R1 050
000.00.
[33]
The
court in
Brits
referred to
Kammies
v Minister of Police and Another
,
[13]
the
plaintiff was detained for three days and awarded damages of R70,000.
In
Rahim
and Others v Minister of Home Affairs
,
[14]
the
court noted that it awarded damages ranging from R3 000 for four days
of unlawful detention and R20 000 for 30 days to
R25 000
for 35 days of unlawful detention.
[34]
In
Mahlangu
and Another v Minister of Police
,
[15]
t
he
Constitutional Court awarded damages of R550 000.00 and
R500 000.00 to two plaintiffs. They were unlawfully detained
for
eight months and ten days. The court took into consideration that
several police officers tortured Mr Mahlangu before he made
the
confession that led to the deprivation of his liberty. The
circumstances under which Mr Mahlangu and Mr Mtsweni were detained
were unpleasant. They were placed in solitary confinement for two
months to protect them from attack and taunting by fellow detainees
who believed that they had killed their relatives. The court
found that no amount of compensation can undo the humiliation
and
human rights violations suffered by the applicants.
[35]
In Manyoni
,
t
he plaintiff
was 38 years of age at the time of his arrest. He was an ex-convict
trying to redeem himself when he was arrested.
The defendants were of
the view that the plaintiff should be awarded a lower amount of
compensation since he had served time in
prison before. During his
unlawful detention, he endured overcrowding, violence, a dirty
environment, poor ablution, and a lower
food ratio and was limited in
his interaction with people dear to him. He had to share limited
mattresses and blankets with other
inmates. He encountered the power
of prison gangs and less protection from prison warders. A
n
amount of
R
744 000.00 was awarded for approximately eight months of
detention.
[36]
In
Nontsele
,
the plaintiff was kept in police cells throughout his detention,
designed for short transitional stays. It was freezing
in the
winter, and he sat on a cement bench and slept on the cement floor.
Food was scarce, and inmates fought over it.
It was
particularly difficult for him as the problem in his leg caused his
movement to be slow. Even when he received his
ration, it was
not timely and posed challenges as far as the taking of his
medication was concerned. He shared a communal
cell with smokers
whilst he was a non-smoker. Also, he could not see outside the prison
walls. He suffered additional hurt
because, upon his release,
members of the community called him a rapist. He also lost his
lover. He had to contend with
being unwell during his
incarceration.
He
was granted R1 600 000.00.
[37]
In
Olivier
v Minister of Safety and Security and Another
[16]
The plaintiff was a superintendent at the Heidelberg police station.
He was in uniform and on duty at the time of his arrest. He
was
arrested in full view of his colleagues and detained at the police
station. His office and home were searched, the latter in
the
presence of his wife and children. He asked to be released on bail,
but his request was refused. He was awarded R50 000.00
.
Discussion
[38]
Every case should be
determined on its own facts. Arguments were presented regarding the
arbitrary and malicious way the officials
conducted themselves. I
considered it.
[39]
Police officials are
expected to treat persons suspected of crime with dignity. The
plaintiff was vulnerable (naked) when he proceeded
downstairs, in his
own home, where the police officers were waiting. He was unarmed when
he was instructed to lie down; all three
officers pointed their
firearms at him. His request that his whereabouts on the alleged
robbery day be verified at the hospital
fell on deaf ears. His
pregnant girlfriend was frightened, and this undoubtedly impacted his
psychological state. He could not
be present when his son was born.
He was then taken to a holding cell for two days. The case law is
replete with references to
the unacceptable conditions in holding
cells, especially concerning the lack of privacy.
[40]
He was then detained
at Grootvlei for approximately seven (7) months. There, he was given
a sponge mattress that could have provided
more comfort, but without
any sheets or blankets. The lack of privacy continued, and those
fortunate enough could shield themselves
when using the shower. I
accept that he requested assistance with physiotherapy for his
injured leg.
[41]
In contrast with many other cases, he
was fortunate to have been provided acceptable food. He was not
raped, assaulted or tortured.
[42]
Our Constitution places a high premium
on all persons' physical and psychological integrity. He suffered
infringements on both.
Quantum
[43]
Considering the facts of the
matter, the impact on the Plaintiff, the principles applicable to
compensation for claims of this nature,
and the case law, I believe
that an amount of R1 000 000.00 (one million rand) will be
fair.
Costs
[44]
There is no
reason why costs should not follow the result, and I believe that the
costs of Plaintiff’s counsel on scale B
would be appropriate.
ORDER:
[45]
In the result,
the following order is made:
1.
The Defendant shall pay the Plaintiff R1 000 000.00 (one
million rand) for general
damages.
2.
Defendant pays the Plaintiff’s costs, counsel’s fees to
be taxed on scale B.
CRONJÉ,
AJ
Appearances:
For
the Plaintiff:
Adv
R J Nkhahle
Instructed
by:
Kambi
Attorneys
Bloemfontein
For
the Defendant:
Adv
L Manye
Instructed
by:
Office
of the State Attorney
Bloemfontein
[1]
Minister
of Safety and Security v Tyulu
[2009]
ZASCA 55
;
2009 (5) SA 85
(SCA);
2009 (2) SACR 282
(SCA).
[2]
Masisi
v Minister of Safety and Security
[2010]
ZAGPPHC 280; 2011 (2) SACR 262 (GNP).
[3]
Lifa v
Minister of Police and Others
[2022] ZAGPJHC 795; [2023] 1 All SA 132 (GJ).
[4]
Jongile
v Minister of Police
,
unreported case in North-West Division of the High Court, case
number: 1172/2018.
[5]
De
Klerk v Minister of Police
[2019]
ZACC 32; 2019 (12) BCLR 1425 (CC).
[6]
Rathebe
v Minister of Police and Another
[2024] ZAFSHC 69.
[7]
Brits
v Minister of Police & Another
[2021]
ZASCA 161.
[8]
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284 (N).
[9]
Ibid at 287E-F.
[10]
Manyoni
v Minister of Police and Another
[2023]
ZAGPJHC 1185.
[11]
Nontsele
v Minister of Police and Another
[2021]
ZAECMHC 29.
[12]
July
v Minister of Police
[2024]
ZANWHC 99.
[13]
Kammies
v Minister of Police and Another
[2017]
ZAECPEHC 25.
[14]
Rahim
and Others v Minister of Home Affairs
[2015]
3 All SA (SCA).
[15]
Mahlangu
and Another v Minister of Police
[2021]
ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR 595 (CC).
[16]
Olivier
v Minister of Safety and Security and Another
[2008] ZAGPHC 50
;
2008 (2) SACR 387
(W).