Dintoe v Minister of Police (1127/2015) [2017] ZANWHC 90 (14 September 2017)

Reportable:

YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1127/2015

In the matter between:

KGOSIETSILE ERNEST DINTOE

PLAINTIFF

And

MINISTER OF POLICE

DEFENDANT

JUDGMENT

DJAJE J

[1] The Plaintiff’s action against the Defendant was for assault and unlawful arrest and detention. The matter proceeded on merits only by agreement between the parties and the Plaintiff succeeded with his action only on unlawful arrest and detention. In the particulars of claim the Plaintiff was claiming the amount of R250 000-00 for unlawful arrest and detention. The issue to be decided now is the quantum of damages to be paid to the Plaintiff.

[2] In brief the Plaintiff during trial testified that he was arrested and detained at the Lichtenburg Police Station for five hours. In the police cells he was searched by other inmates at the instruction of the police officers. He was further pushed against the wall by one of the inmates. It was his evidence that the situation in the cells was so unbearable that at one stage he got hold of a razor blade and attempted to cut his wrists. He was stopped by some of the inmates who then took the blade from him. After he was released from detention he did not appear in court.

[3] In the matter of Strydom v Minister of Safety and Security and Another (31353/2007) [2014] ZAFSHC 73 (28 May 2014) the following was stated:

“12] 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. 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 quantum of damages on such facts.”

[4] In relation to deprivation of freedom the following was said in Takawira v Minister of Police (A3039/2011) [2013] ZAGPJHC 138 (11 June 2013):

“29. A delictual claim for damages may also be brought in terms of Section 12(1) (a) of the Constitution. By definition such a claim is based on the unreasonable and unjustifiable infringement of an individual’s right not to be arbitrarily deprived of freedom or to be so deprived without just cause. See Zeeland v Minister of Justice and Constitutional Development & Another, [2008] ZACC 3; 2008 (4) SA 458 (CC), at paras 24, 25 and 35..42. It is trite that an enquiry into unlawful detention (as with arrest) seeks to determine the extent to which the various affected rights of personality were impaired and their duration. The enquiry involves both a subjective element based on the emotional effect of the wrong committed to the plaintiff (such as the humiliation or anguish of suffering the injustice, the loss of self-esteem and self-respect) and an objective impairment based on the external effects of the wrong (such as loss of reputation in the eyes of others).”

[5] In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at paragraph [20] it was stated that:

“[20] 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 discernable 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.”

[6] During argument counsel for the Plaintiff referred me to the case of Tlhaganyane v Minister of Safety and Security (1661/2009) by Landman J from this division where an amount of R140 000-00 was awarded for unlawful detention of 19 hours. In the case of Areff v Minister van Polisie 1977 (2) SA 900(A) the award was R1000-00 for two hours with the inflation adjusted award for 2017 according to Robert J Koch “The Quantum Yearbook 2017” to R43 000-00 for a business man.

[7] In contention the Defendant argued that the appropriate amount for damages to be awarded to the Plaintiff should be R35 000-00

based on the duration of detention. In support of their argument the Defendant relied on the cases of Seria v Minister of Safety and Security and Others 2005 (5) SA 130 (CPD) where an amount of R50 000-00 was awarded for an architect who was detained for one day.

[8] Proper assessment of damages in cases of unlawful arrest and detention require guidance from precedence. The Plaintiff in the

particulars of claim is claiming an amount of R250 000-00 for unlawful arrest and detention for five hours. I am however not

persuaded that the amount is appropriate considering the awards made previously by the courts. In Minister of Safety and Security v Kruger (183/01) [2011] ZASCA 7 (8 March 2011) the court on appeal awarded an amount of R50 000-00 for unlawful arrest and detention of one day. The award in the matter of Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) was R90 000-00 for unlawful arrest and detention for 5 days. In a more recent judgment of Guidione v Minister of Safety and Security (2008/37480) [2015] ZAGPJHC 110 (11 June 2015) the Plaintiff was arrested and detained from 24 August 2008 to 25 August 2008 and the amount awarded was R75 000-00.

[9] The Plaintiff in this matter was employed as a Social Worker at the time of arrest. He was not arrested in front of his colleagues or family. He was arrested at the police station in the presence of other police officers. He was however so traumatised by the arrest and detention that he attempted to commit suicide whilst in detention. He was also assaulted by some of the inmates who were with him in detention. As a professional he felt humiliated by the treatment he received in the cells and by the police officers who carried out the arrest by being subjected to a search in the cells by the inmates at the instruction of the police. Having considered the circumstances of Plaintiff’s arrest and detention and the trauma he went through , I am persuaded that an appropriate composite award for the Plaintiff’s claim is the amount of R50 000.00.

Costs

[10] It is trite that costs follow the result and as the Plaintiff is successful the Defendant is ordered to pay costs of suit.

Order

[11] Consequently, the following order is made:

1. The Defendant is ordered to pay the Plaintiff’s damages in the amount of R50 000-00 with interest thereon at the rate of 15,5% per annum a tempore morae from the date of judgment to the date of payment;

2. The Defendant is ordered to pay the costs of suit.

_______________

J T DJAJE

JUDGE OF THE NORTH WEST HIGH COURT

APPEARANCES

DATE OF HEARING :

30 AUGUST 2017

DATE OF JUDGMENT :

14 SEPTEMBER 2017

COUNSEL FOR PLAINTIFF :

ADV D. SMIT

COUNSEL FOR DEFENDANT :

ADV S. MPAKANE