Islam v Minister of Police (CIV APP/MG 22/2023) [2024] ZANWHC 24 (26 January 2024)

IN THE HIGH COURT OF

SOUTH AFRICA

NORTH WEST DIVISION –

MAHIKENG

CASE NO: CIV APP/MG 22/2023

Reportable:

YES

/ NO

Circulate to Judges:

YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

TOFFAJAL

ISLAM

APPELLANT

AND

MINISTER

OF POLICE

RESPONDENT

CIVIL

APPEAL

QUORUM: DJAJE DJP & MFENYANA J

Heard: 17 NOVEMBER 2023

Delivered: The date for the hand-down is deemed to be on 26 JANUARY 2024

ORDER

The following order is made:

1. The appeal is dismissed,

2. No order as to costs.

JUDGMENT

DJAJE

DJP

[1] The appellant brought this appeal against the quantum of damages awarded as a result of the unlawful arrest and detention by members of the respondent. The appeal was unopposed and was decided on paper.

[2] The matter arises from the Magistrate’s Court in Potchefstroom where the appellant had instituted an action for damages against the respondent for unlawful arrest and detention on 14 July 2020. The action was not defended as the respondent had filed a defective notice of intention to defend. Default judgement was granted in favour of the appellant. The facts of the matter are that the appellant was at his shop on 14 July 2020 when he was approached by four members of the South African Police Services. They searched his premises without a search warrant and found some cigarettes in the storeroom. They arrested him for contravening the Disaster Management Regulations for the sale of cigarettes and confiscated same. The value of the cigarettes was R4000-00 (four thousand rand). The appellant was arrested at 10h00 and detained at Ikageng Police Station until 14h00 that same day. In total, he was detained for a period of four hours. In the particulars of claim the appellant sued for damages in the amount of R100 000-00 (one hundred thousand rand).

[3] The appellant deposed to an affidavit explaining the conditions of his detention. He explained that he was detained in a small room and questioned for hours. At around 14h00 he was released on warning. He never appeared in court and the cigarettes were not returned to him. According to the appellant, he felt humiliated by the arrest and detention. Further that he no longer has confidence in the South African Police Service. He suffered financial loss and was not able to pay rent for his shop as a result of the arrest.

[4] As stated above, default judgment was granted on the merits and after considering the damages affidavit the court a quo awarded an amount of R8 000-00 (eight thousand rand) for damages resulting from the unlawful arrest and detention with interest of 7% thereon from the date of summons to date of final payment. It is this award that the appellant now seeks to appeal.

[5] The submission on behalf of the appellant was that he was denied his constitutional rights to freedom unlawfully. He was subjected to an illegal search and seizure of cigarettes and received no apology from the police. The appellant argued that the court a quo misdirected itself by paying lip service to the high value of the right to physical liberty and the effect of inflation in awarding the amount of R8 000-00. The appellant in its argument referred to a number of authorities that should be considered in determining the appropriate amount of damages. It is important to note that these authorities only serve as a guide and each case is to be decided on its merits.

[6] In support of this submission, reference was made to a number of cases giving comparable amounts awarded for unlawful arrest and detention. To name a few counsel referred me to the matter of Minister of Safety and Security v Tyulu (327/08) [2009] ZASCA 55 (27 May 2009) where the Magistrate who was arrested and detained for no longer than 15 minutes was awarded R15 000-00 which in value is R28 600-00 in 2022. Another matter referred to was that of Minister of Safety and Security & another v Swart (194/11) [2012] ZASCA 16 (22 March 2012) where the Supreme Court of Appeal confirmed an amount of R50 000-00 for arrest and detention of four and a half hours.

Law

[7] 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.”

[8] 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).”

[9] In assessing damages the purpose is not to enrich the plaintiff but rather to offer him solatium for his injured dignity and loss of liberty. See Minister of Safety and Security and M Tyulu [327/08] [2009] ZASCA 55 (29 May 2009). An award for damages in respect of the plaintiff’s injuria cannot be calculated with mechanical precision, recourse must be had for guidance in previous similar fact decisions.

[10] 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 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.”

[11] The Supreme Court of Appeal in Minister of Police and Another v Erasmus (366/2021) [2022] ZASCA 57 (22 April 2022) awarded damages on appeal in the amount of R25 000-00 for a period of approximately 20 hours and the following was stated:

“[17] It remains only to consider the award of R50 000 in respect of the arrest and detention of the first period. Mr Erasmus was detained for approximately 20 hours in unpleasant conditions. Nevertheless, there is a striking disparity in the amount of damages that I would award (R25 000) and that of the high court. This justifies this Court’s interference with the exercise of the discretion of the high court in this regard. The appeal against the quantum of damages in respect of the arrest and detention for the first period must also succeed and the award must be replaced with one in the amount of R25 000.”

Analysis

[12] The appellant herein was arrested at his shop. There was no evidence led as to who was present during the arrest. He was not detained in a cell but kept in a room. There was no indication of the conditions in that room where he was being questioned for four hours. Unlike in the Erasmus case where he was detained in unpleasant conditions, such details are not there herein. The appellant alleged that he was not able to pay rent for his shop after his arrest. The details of how this came about are lacking from his damages affidavit. He did not sustain any injuries. It is important to note that an award for

damages must be commensurate with the injury suffered. It does not assist the appellant to make bold allegations of injuries and not giving details and specifics like in this matter.

[13] It is so that the appellant was denied his freedom unnecessarily for a period of four hours and did not appear in court. He did suffer emotional trauma as a result of the incident and should be awarded damages for that.

[14] Having considered the circumstances of appellant’s arrest and detention, I am of the view that the award of R8 000-00 is appropriate and it is not necessary for this court to interfere therewith.

Costs

[15] The appeal was not opposed and there will be no cost order.

Order

[16] Consequently, the following order is made:

J

T DJAJE

DEPUTY

JUDGE PRESIDENT

NORTH WEST DIVISION, MAHIKENG

I agree

S

MFENYANA

JUDGE

OF THE HIGH COURT

APPEARANCES

DATE OF HEARING: 17 NOVEMBER 2023

DATE OF JUDGMENT: 26 JANUARY 2024

COUNSEL FOR THE APPELLANT:

ADV

JJ GERBER

COUNSEL FOR THE RESPONDENT: (UNOPPOSED)