Bologo v Minister of Police (3459/15) [2017] ZAGPJHC 276 (22 September 2017)

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 3459/15

Not reportable

Not of interest to other judges

Revised

22/9/2017

BOLOGO: MPHO NYAMBENI PLAINTIFF

AND

MINISTER OF POLICE DEFENDANT

JUDGMENT

SHANGISA AJ:

A. Factual Background

1. The plaintiff claims damages from the defendant on the grounds that he was unlawfully arrested and detained by police officers acting within the cause and scope of employment with the defendant.

2. The plaintiff’s claim arises from this arrest without a warrant on 07 July 2014 in Rustenburg and his subsequent detention at the Sandton Police Station until 09 July 2014 when the charges against him were withdrawn. At the time of his unlawful arrest and detention, the plaintiff was 27 years old.

3. At the outset of the trial, the parties agreed to settle the merits. In that regard, they submitted an agreed statement of the stated case in terms of rule 33 which was signed by the parties’ respective legal representatives. The effect of the agreed statement was that the defendant conceded the unlawfulness of the arrest and detention. The only remaining issue for determination is the appropriate amount of damages to be awarded to the plaintiff.

4. At the outset, it is worth setting out the common cause facts as encapsulated in the stated case. After the introductory paragraphs which describe the parties, the stated case proceeds as follows:

“3. The stated case agreed to is as follows:

3.3. The Plaintiff was arrested in Rustenburg on 7 July 2014.

3.4. He was arrested by a member of the Police Services acting within the scope of his employment.

3.5. He was arrested without a warrant of arrest.

3.6. He was arrested on a charge of allegedly escaping from lawful custody (the charge) on 5 July 2014.

3.7. The charge is not one falling within a schedule 1 offence in terms of the Criminal Procedure Act 51 of 1977.

3.8. Subsequently, he was handcuffed and taken to Sandton Police Station wherein he was detained on 07 July 2014 till 09 July 2014.

3.9. On the 09 July 2014, the plaintiff was taken to Randburg Magistrate Court wherein his detention continued until he was released without appearing in an open court.

3.10. The plaintiff has never escaped from prison and thus he should never have been arrested by the members of the South African Police Service for escaping from prison.”

B. Applicable Legal Principles

5. It is trite that in assessing the appropriate award, the Court should have regard to previous awards made by courts in similar matters. The Court, however, should thread cautiously and be hesitant to slavishly following other courts’ previous awards. Ultimately, the Court has to arrive at an appropriate decision on damages by paying attention to the particular circumstances of the case. It is apposite to refer to some important judicial pronouncements on the proper approach on award of damages.

6. In Minister of Safety and Security v Seymour 2006 (6) SA 320, Nugent JA enunciated the proper approach that should be adopted by the Court when dealing with awards made in comparable previous cases. At 325B, the Court stated the position as follows :

“The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that.”

7. Equally instructive, was the warning uttered by the Court in Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 387 E-F, where Holmes J (as he then was) stated the following:

“However, no better system for assessing damages has yet been evolved, and 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 out largesse from the horn of plenty at the defendant’s expense.”

8. In the same vein, Nugent JA in Seymour (supra) echoed Holmes J (as he then was) in the Pitt case (supra) and approached the question of appropriate compensation as follows:

“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. The awards I have referred to reflect no discernible pattern other than that our courts are not extravagant in compensating the loss. It needs also to be kept in mind when making such awards that there are many legitimate calls upon the public purse to ensure that other rights that are no less important also receive protection.”

9. In Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA), Bosielo AJA (as he then was) said:

“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.”

10. Recently, in Louis Ngwenya v The Minister of Home Affairs (Unreported decision of the Gauteng Local Division under case No. A3014/2017), at paras 14-16, Wepener J also sounded the following caution:

“[14] Any infringement on this basic right [i.e. right to liberty] is a serious inroad into an individual’s liberty and will be open to censure. The censure in this matter is by way of solatium awarded to the plaintiff for his injury.

[15] The plaintiff’s damages will ultimately be forthcoming from the State coffers to which the citizens of this country contribute. Some restraint is called for when awarding damages where the fiscus is the source thereof.

[16] I am further of the view that amounts of damages to be awarded for wrongful arrest should be approached with circumspection. There is no justification for awarding amounts which are out of proportion with the indignity suffered by an arrested person.”

11. The Court has a discretion as to the appropriate amount of damages that should be awarded. It is clear from the welter of decided authorities that the correct approach in the assessment of damages entails the evaluation of the plaintiff’s personal circumstances, the circumstances around his arrest, as well as the nature and duration of the detention. (See Masisi v Minister of Safety and Security 2011 (2) SACR 262 (GNP) at 265).

12. When awarding damages the overriding consideration requires that compensation be just and fair in the circumstances. This entails that the Court bears in mind that the purpose is not to enrich the plaintiff, but to offer him a solatium for the encroachment on his right to liberty. That exercise merits a proper appraisal of all the circumstances of the matter. It is worth emphasising that, although it is a significant factor, the duration of the unlawful detention is not per se the sole consideration that one should take into account.

13. I have given due consideration to the broadly similar cases on damages that were cited by both counsel for the plaintiff and the defendant in their submissions. It is clear from the welter of authorities that when determining the assessment of appropriate damages the Court should bear in mind that each case necessarily turns on its own peculiar facts. Comparable cases merely serve as an important guide and ensure that the Court does not arrive at an award which is out of general accord with previous awards in broadly similar cases. (See Seymour case (supra).

14. In the present matter, the plaintiff initially sought damages in an amount of R500 000. However, Mr Mmusi, who appeared on behalf of the plaintiff readily conceded, correctly, that the original amount claimed was at variance with amounts that had been made by courts in other cases in broadly similar circumstances. In my view, the concession was properly made. Plaintiff’s counsel then felt constrained to argue that the award of an amount of R250 000 would be appropriate in the circumstances of this matter.

15. Counsel for the defendant, on the other hand, relied on the case of Risenga v Minister of Safety and Security [2016] ZAGPPHC 948 (18 November 2016). In the Risenga case, the plaintiff who had been unlawfully arrested and detained for two days was awarded an amount of R60 000.00. However, in my view, the facts of the Risenga case are vastly distinguishable from the facts of the present matter. In Risenga the plaintiff was arrested on suspicion that he had committed a Schedule 1 offence of rape. Significantly, the plaintiff was arrested after the complainant had pointed him out as the man who had raped her. Accordingly, in that matter the arresting officer had based his suspicion on the pointing out of the plaintiff by the complainant.

16. By contrast, in the present matter, the defendant conceded from the outset that the arrest of the plaintiff was unlawful. The defendant did not proffer any factual basis for the arrest of the plaintiff. It is not in dispute that the arrest in this matter was an instance of abuse of power by members of the police who clearly acted capriciously.

17. As already mentioned, I have considered a number of other cases which are broadly similar to the present one. It is apposite to refer to two such cases. In Richard Moses v Minister of Safety and Security[1] the court awarded an amount of R100 000 for unlawful detention which lasted for two days. There are features of the Moses case (supra) which are worth highlighting. In that matter, the plaintiff had been arrested by a police officer who had deliberately fabricated false charges against him. It was common cause that the plaintiff had previously laid criminal charges of assault against the police

officer who arrested him. The implicated police officer then contrived a scheme that resulted in the arrest of the plaintiff on

the strength of false and fabricated statements. It later emerged that the arrest and detention of the plaintiff had been hatched by the police officer because he harboured a personal grievance against the plaintiff. In any event, the court in Moses had the benefit of evidence concerning the circumstances of the arrest and the degrading conditions of his detention.

18. In Modisaotsile Alfred Ntwagae and Another v Minister of Safety and Security and Another [2013] ZANCHC 7 (27 March 2013) the court awarded the amount of R170 000.00 to each of the elderly plaintiffs who had been unlawfully arrested and detained for a period of approximately two and a half days[2]. In the latter case the plaintiffs had given evidence of the degrading treatment they had been subjected to and the appalling conditions they had to endure whilst in detention. It was on account of the gross circumstances of their detention that the Court deemed appropriate to award each plaintiff the amount of R170 000.00.

19. Turning to the facts of the present matter, the evidential material before me is confined to the pleadings and the stated case in terms of rule 33. I do not have the benefit of the plaintiff’s evidence concerning the conditions of his detention at the Sandton Police Station. It was not suggested that I could take judicial notice of the conditions at the Sandton Police cells where the plaintiff was held. I, therefore, refrain from speculating about the prevailing conditions and circumstances under which the plaintiff was detained.

20. In Woji v Minister of Police 2015 (1) All SA 68 (SCA), at 79 I-J, the Court had regard to the appalling conditions the appellant had been forced to endure whilst in detention. The court illustrated the degradation suffered by the appellant by taking into account the following established facts:

“Mr Woji described what can only be regarded as appalling conditions he was forced to endure whilst in d detention. Cells were overcrowded, dirty and with insufficient beds to sleep on. He was subject to the control of a gang, whom he said sodomised other prisoners. As a results, he suffered the appalling, humiliating and traumatic indignity of being raped on two occasions, which he did not report to the prison authorities, because he feared retaliation from gang members. As a consequence, he has difficulty in enjoying sexual relations with his girlfriend. He also witnessed another prisoner being stabbed which made him fearful for his safety. After eight months he was allocated a single cell. His situation then improved, because he had a bed to sleep on but he was isolated and lonely.”

21. The above-cited passage in the Woji case provides a perfect illustration of the nature of evidential material the plaintiff is obliged to place at the disposal of the Court so as to enable it to exercise its discretion properly when awarding damages for unlawful detention. Although I accept that being subjected to unlawful arrest and detention is inherently traumatic, it however goes without saying that the Court should be apprised of the full factual account of the plaintiff’s experience whilst in detention. What is more, the adverse effects on the plaintiff, if any, such an unlawful arrest and detention should be canvassed so as to enable the court to exercise its discretion judicially when awarding the appropriate damages.

C. Common cause facts of the present matter

22. As I have already mentioned, in the present matter, I do not have the benefit of the plaintiff’s full account of his treatment whilst at the Sandton Police Station. Nor was any evidence of the prevailing conditions at the Sandton Police Station where the plaintiff was held placed before me. If anything, there is a paucity of information concerning the plaintiff’s period of detention. As can be readily gleaned from the parties’ joint stated case, the facts relating to the conditions of the plaintiff’s detention are quite threadbare and sketchy. Consequently, in the exercise of my discretion on the appropriate compensation, I am impelled to determine the appropriate amount of damages with the minimal evidential material that has been placed before me. Be that as it may, I am of the view that no inference adverse to the plaintiff can fairly be drawn from his failure to call evidence on the conditions of his detention. At any rate, the plaintiff’s counsel did make submissions from the bar on other relevant considerations, such as the duration of the unlawful detention, which should be taken into account.

23. I turn to consider the personal circumstances of the Plaintiff. He was 27 years old at the time of his unlawful arrest and detention. When he was arrested, the Plaintiff was at his girlfriend’s place in Rustenburg, in the North West Province when he was arrested at 20:30 in the evening by members of the South African Police Services. It is common cause that on 09 July 2014 the Plaintiff was taken to Randburg Magistrate’s Court for his first appearance, however the Director of Public Prosecutions declined to prosecute, and the charges were accordingly withdrawn.

24. It is common cause that the plaintiff in this matter spent two and a half days in unlawful detention. Having considered all the circumstances of this case and the authorities referred to above I am of the view that the sum of R85 000 would be just and fair compensation for the Plaintiff’s unlawful arrest and detention.

D. Costs on the Magistrates’ or High Court scale?

25. Defendant’s Counsel urged me to award costs on the magistrates’ court scale. I disagree. In my view, the plaintiff was justified in instituting the present action in the High Court. As correctly argued by his Counsel, the plaintiff’s arrest was entirely without any justification, nor did the defendant bother to proffer any such justification. If anything, the defendant’s plea amounts to a bare denial. In Mvu v Minister of Safety and Security 2009 (2) SACR 291, at para 17, Willis J (as he then was) cited with approval a number of authorities which enunciate the principle that in matters

such as the present one, courts generally award costs on a High Court scale because of the significance they attach to issues of unlawful arrest and detention. At para 17, the court put the position as follows:

“[17] In the Hofmeyr case[3], although the court made an award within the jurisdiction of the magistrates’ court, it nevertheless granted costs on the higher court scale. A similar approach was adopted in the Seria case[4], the Louw case[5], the Olivier case[6] and the Van Rensburg case[7]. The underlying principle would appear to be the importance which the courts attach to questions of unlawful arrest and detention.” (Own emphasis)

26. In any event, the Pre-Trial Minutes in this matter recorded that the parties were ad idem that the present matter should be heard in the High Court. That being so, it seems to me that, given the capricious manner in which the plaintiff’s arrest was effected, there is ample justification for costs in this matter to be awarded on the High Court scale.

E. Costs of two counsel

27. Counsel for the defendant further contended that granting costs of two counsel would be unjustified in this matter. In my view, a fair exercise of my discretion in regard to costs requires that I disallow the costs of two counsel. I agree with Counsel for the defendant’s submission that the issues in this matter were not complex and certainly did not warrant the employment of two counsel. Accordingly, in the circumstances of the present matter, only costs of one counsel are warranted.

F. Interest

28. Finally, the issue of mora interest merits some consideration. The pleadings indicate that the defendant received the plaintiff’s statutory notice in terms of Act 40 of 2002 on 27 November 2014[8]. In Blything v Minister of Safety and Security and Another (8281/2013) [2016] ZAGPPHC 770 (31 August 2016), Ledwaba DJP referred to a number of authorities in which our Courts held that interest in illiquid claims for damages may be awarded a tempore morae from date of demand or summons to date of payment.[9] In that regard, Ledwaba DJP also referred to a number of decisions in which the Supreme Court of Appeal had ordered defendants to pay the interest on the amount of damages awarded from the date of demand to the date of payment.[10]

29. In Kwenda and Others v Minister of Safety and Security [2015] JOL 34203 (GNP) Murphy J:

“In terms of the Prescribed Rate of Interest Act 55 of 1975 it is permissible to recover mora interest on amounts awarded by a court which, but for such award, were unliquidated. Once judgment is granted such interest shall run from the date on which payment of the debt is claimed by the service on the debtor of a demand or summons, whichever date is the earlier - section 2A(2)(a). The word “demand” is defined in the Act to mean a written demand setting out the creditor's claim in such a manner as to enable the debtor reasonably to assess the quantum thereof.” (Own emphasis)

30. In Steyn No v Ronald Bobroff 2013 (2) SA 311 (SCA), the Supreme Court of Appeal stated, at para 35, that:

“…the mora interest provided for in the Act is thus intended to place the creditor who has not received due payment in the position that he or she would have occupied had the payment been made.”

31. The rationale for the above-cited authorities on interest is based on the fact that money loses value because of the inflation. In the present matter, the defendant conceded liability, at the outset of the trial, on the unlawfulness of the arrest. In the circumstances, it seems to me that it would be just and equitable to grant interest from the date of demand to date of payment.

32. In the result I make the following order:

1. The Defendant is ordered to pay the Plaintiff the amount of R85 000.00.

2. The Defendant is ordered to pay the Plaintiff interest on the sum of R85 000.00 at the rate of 9% per annum from date of service of notice of demand on 27 November 2014 to date of payment.

3. The Defendant is ordered to pay the Plaintiff’s costs of suit.

________________________________

SHANGISA AJ

Acting Judge of the High Court,

Gauteng Local Division, Johannesburg

DATE OF HEARING: 21 August 2017

DATE OF JUDGMENT: 22 September 2017

APPEARANCES:

COUNSEL FOR THE PLAINTIFF: L. Mmusi (with, N. Gama)

INSTRUCTED BY: BS INC ATTORNEYS

COUNSEL FOR THE DEFENDANT: N. Nharmuravate

INSTRUCTED BY: OFFICE OF THE STATE ATTORNEY

[1] Unreported decision of the Gauteng Local Division under case No 6983/2013, delivered on 20 February 2015.

[2] Ntwagae (supra) at paras 44, 49 and 53

[3] Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 ( C).

[4] Seria v Minister of Safety and Security 2005 (5) SA 130 ( C)

[5] Louw v Minister of Safety and Security and Others 2006 (2) SACR 178 (T)

[6] Olivier v Minister of Safety and Security 2008 (2) SACR387 (W)

[7] Van Rensburg v City of Johannesburg 2009 (1) SACR 32 (W)

[8] See Plaintiff’s Summons, at page 10

[9] See a discussion on a number of cases cited in Blything (supra) including -Steyn No v Ronald Bobroff 2013 (2) SA 311 (SCA) at para 35 ( cited below at para 30 in this judgment).

[10] See the Blything case (supra) and the authorities referred to by Ledwaba DJP at para 23. The decisions in point include, Minister of Safety and Security and Others v Janse van der Walt and Another [2015] JOL 32548 (SCA), and the Woji case (supra).