Khukwane v Minister of Police and Another (CIV APP MG 10/2021) [2021] ZANWHC 82 (3 December 2021)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CIV APP MG 10/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

KHUKWANE JOSEPH TOBASE

Appellant

and

MINISTER OF POLICE

1st Respondent

PROVINCIAL COMMISSIONER

OF POLICE NORTH WEST

2nd Respondent

CORUM: HENDRICKS DJP et MAHLANGU AJ

DATE OF HEARING : 26 NOVEMBER 2021

DATE OF JUDGMENT : 03 DECEMBER 2021

FOR THE PLAINTIFF : ADV. BALOYI

FOR THE DEFENDANT : NO APPEARANCE

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00 on 03 DECEMBER 2021.

ORDER

(i) The appeal succeed.

(ii) The order of the court a quo is reviewed and set aside and replaced with the following:

“(a) The defendants are ordered to pay an amount of R45 000.00 (forty-five thousand rand) to the plaintiff as damages, jointly and severally, the one paying the other to be absolved.

(b) The defendants are ordered to pay interest on the amount of R45 000.00 (forty-five thousand rand) at the rate of 7.25% per annum, from date of this judgment until date of final payment.

(c) The defendants are ordered to pay the plaintiff’s costs of suit on a party-and-party scale.”

(iii) No order as to the costs of the appeal is made.

(iv) Copies of this judgment must be send to the State Attorney, Mahikeng to be forwarded to the Provincial Commissioner of Police, North West Province;

and to The Chief Magistrate, North West.

HENDRICKS DJP

[1] On the 29th January 2020 Mr. Joseph Tobase Khukwane (appellant) and his colleagues were working at the Mafikeng Mental Hospital rendering landscaping/gardening services, when three (3) marked police vehicles arrived. He and one of his colleagues namely Mr. Papakie Frans Mochumi were accused of having stolen a plasma television set. He was arrested and transported to the Mafikeng Police Station where he was detained in a police cell for three (3) days. Thereafter he was released, without been taken to court and told to ‘go home and do not look back’. Aggrieved by the treatment he received, he instructed his attorneys of record to take action against the police.

[2] Letters of demand in terms of provision of section 3 of Act 40 of 2002 serving as notification for the institution of a civil action against an organ of State, were duly sent to the National Commissioner as well as the Provincial Commissioner of the South African Police Services (SAPS) demanding payment in the amount of R200 000.00 (two hundred thousand rand) as damages. These letters are dated 07 October 2020. When no response was forthcoming, summons was issued on 10th December 2020 for payment in the said amount of R200 000.00 (two hundred thousand rand). A Notice of Intention to Defend dated 19th January 2021 was served on the office of the appellant’s attorneys of record. However, no plea was filed.

[3] A Notice of Bar was served on the office of the State Attorney representing the Minister of Police as 1st defendant and the Provincial Commissioner of Police North West Province as 2nd defendant in the court a quo. Needless to say, there was once again no response forthcoming.

[4] A Request for Default Judgment was issued out of court and served on 04th March 2021 on the State Attorney, who was still representing the Minister of Police sued as 1st defendant and the Provincial Commissioner of Police, North West Province as the 2nd defendant [“respondents”] in the court a quo.

[5] A damages affidavit was filed together with the request for default judgment. On the 17th March 2021 Magistrate Kgosethata issued a Directive (“query”) requesting evidence of proof of employment of the plaintiff (appellant); the exact number of days and hours that he was detained and documentary proof of his earnings. The plaintiff deposed to a supplementary affidavit which was filed with the Clerk of the Magistrate Court on 13th April 2021. The matter was decided on the papers and documents filed. On 07th May 2021 the learned Magistrate granted default judgment in the amount of twenty-five thousand rand (R25 000.00) for general damages;

payment of interest on the said amount at the rate of 10.5% from date of judgment until date of final payment; and costs of suit on a party-and-party scale.

[6] A Request for Reasons for Judgment was filed requesting the facts found proven and reasons for the quantum, which reasons were supplied. In her Reasons for Judgment the learned Magistrate states:

“(b) The following are the reasons for the quantum granted:

Determination of quantum was based on all the facts of this case, such as the arrest of the plaintiff, the period of detention which is said to be 3 days, employment of plaintiff, deprivation of plaintiff's freedom, and all circumstances surrounding the place of detention of the plaintiff. See the case of Rudolph and others v Minister of safety and Another.

It should be noted that the purpose of the award for damages is not to enrich the aggrieved party but to offer him an apology or consolation. In the case of Minister of Safety and Security v Tyulu it was stated that 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. Also see Masisi v Minister of Safety and Security.

Having considered all factors before me and papers filed, I am of the opinion that the amount granted is enough to offer the plaintiff consolation and or an apology for his aggrieved feelings.”

[7] A Notice of Appeal was filed on 22 June 2021 against the quantum of the judgment granted, containing the following grounds of appeal:

“The Honourable Court erred by finding that the Appellant did not prove his case, for the following reasons:

(a) The Honourable Court failed to give any or sufficient weight to the evidence contained in the Appellant’s damages as well as his supplementary affidavit justifying the granting of reasonable and fair compensation,

(b) The Honourable Court failed to make a finding justifying the compensation amount considering the claim and order was for damages suffered following his loss of employment, unlawful arrest and detention spanning a period of three (3) days.”

This appeal is therefore against the quantum of twenty-five thousand rand (R25 000.00) granted by the learned Magistrate.

[8] In Rahim and 14 others v The Minister of Home Affairs 2015 (7K6) QOD 191 (SCA), at para 27, it was held:

"[27] The deprivation of liberty is indeed a serious matter. In cases of non-patrimonial loss where damages are claimed the extent of damages cannot be assessed with mathematical precision. In such cases the exercise of a reasonable discretion by the court and broad general considerations play a decisive role in the process of quantification. This does not, of course, absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and fair award. In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia the following factors are relevant:

27.1 circumstances under which the deprivation of liberty took place;

27.2 the conduct of the defendants; and

27.3 the nature and duration of the deprivation.

Having regard to the limited information available and taking into account the factors referred to it appears to me to be just to award globular amounts that vary in relation to the time each of the appellants spent in detention."

(Underlined for emphasis)

[9] In Olgar v The Minister of Safety and Security 2008 JDRJ582 (E) at para 16, Jones J remarked that:

"In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and a proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from what Holmes J called the 'horn of plenty', at the expense of the defendant."

[10] The following statement by Bosielo AJA, as he then was, in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA), at para [26], is apposite:

"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 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 Safely and Security v Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009] ZASCA 39) paras 26-29)."

[11] The awarding of general damages have by no means as its purpose or object to enrich the plaintiff or seeing that the solatium is to be paid from State coffers, to let it be the proverbial pour from the ‘horn of plenty’. In Masisi v Minister of Safety and Security 2011 (2) SACR 262 (GNP) the following is stated:

“[10] The purpose of an award for general damages in the context of a matter such as the present is to compensate a claimant for deprivation of personal liberty and freedom and the attendant mental anguish and distress.”

“[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 of 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.”

[12] 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.

See: Minister of Safety and Security v Seymore 2006 (6) SA 320 (SCA)

[13] To reiterate, each case must therefore be decided on its own facts and merits. In Visser & Potgieter, Law of Damages, Third Edition, on pages 545 to 548 the following factors are listed that can play a role in the assessment of damages:

“'In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated ex aequo et bona.

Factors which can play a role are the circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendants; the duration and nature (eg solitary

confinement or humiliating nature) of the deprivation of liberty; the status, standing, age, health and disabillty of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in previous comparable cases; the fact that in addition to physical freedom, other personality

interests such as honour and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the actio iniuriarum also has a punitive function.

[14] The plaintiff’s claim is for non- patrimonial damages. These damages relating to infringement of a person’s fama or dignitas, are not proved in the same manner as patrimonial damages. Awards are assessed by the courts in an endeavor of effecting retribution for the injury.

See: Masiu v Ramos (A217/11) [2012] ZAFSHC 79 (26 April 2012).

[15] In Ngwenya v Minister of Police (924/2016) [2019] 3 ZANWHC 3 (7 February 2019) this Court awarded R15 000.00 per day for unlawful arrest and detention. The same amount was awarded in the matter of Gulane v Minister of Police CIV APP MG 21/2019, in an appeal which emanated from the Magistrate Court, Potchefstroom and decided by Petersen J et Gura J. Petersen J et Gura J did also in the matter of Matshe v Minister of Police, case number CIV APP RC 10/2020, likewise, award an amount of R15 000.00 per day for each of the two days that the appellant was

detained.

[16] The award of an appropriate amount of damages as solatium is within the discretion of the presiding Magistrate or Judge, which discretion must be exercised judicially, taking into account

all the factors and circumstances relevant for the impositioning of a reasonable amount. Although there is no exact mathematical formula that can be applied, courts should nevertheless strive to achieve a balanced and fair amount, to be awarded as compensation.

[17] In paragraph 6 of his supplementary affidavit the appellant (as plaintiff) states:

“

6.

I also believe that it is important to note that I was arrested, detained and released under the exact same circumstances with one Manase William Masifane who was granted default judgment (under case number 13/2021) in the sum of R200 000.00 by Mr. Pretorius if this Honourable [court] on 12 April 2021. Our papers and matters ran parallel, are identical and I accordingly submit that a proper case has been made when considered against the other matter mentioned.”

[18] To this, the learned Magistrate responded as follows in the Reasons for Judgment:

“I now wish to address paragraph 6 of plaintiff’s supplementary affidavit, which is noted with contempt. It be noted that I am an independent Magistrate and subject only to the Constitution and the law which must apply impartially, and without fear, favour or prejudice. If any of the party in the matter is aggrieved by my decision, the correct approach is to take the matter to the Higher court rather than referring me to the decision by the other Magistrate who is also independent in exercising his or her judicial duties. I have applied my independent mind in arising at the decision I granted and I agree that a case has been made but not properly to warrant granting an amount of R200 000.00 for damages.”

[19] In reply to this, the appellant’s legal team states in their heads of argument:

“7.5 Furthermore, the learned Magistrate, in the last paragraph of the aforementioned reasons for judgment, failed to differentiate between a mere placing on record of the third court order in the plaintiff’s supplementary affidavit as opposed to an insistence that the same order ought to have been made.”

[20] Difficult as it may be to exercise ones discretion in the same way as any other person or presiding officer would do, there need to be a concerted attempt to at least strive for some degree of similarity, if not conformity with regard to the amount to be awarded as compensation. To award amounts under similar circumstances that are miles apart does not create or instill confidence in the public and may lead to a wrong perception or even forum shopping, which is not at all good for the administration of justice. Much as there are also different amounts awarded by this Court as compensation or solatium, there is of late an attempt to strive for similarity or conformity. Each case must however be decided on its own facts, merits and circumstances. The examples quoted above in the case of Ngwenya v Minister of Police, Gulane v Minister of Police and Matshe v Minister of Police underscores this. R15 000.00 per day, is a reasonable amount to be awarded. In Skosana v Minister of Police 391/2019, an amount of five thousand rand (R5 000.00) was awarded for a young scholar aged fourteen (14) years that was arrested and detained for one (1) hour in a police motor vehicle, whereas he (and his legal team) claimed R1.2 million. There is of late a tendency to thumb-suck any amount and claim it as damages without justification, which amount is always way too much.

[21] Magistrate (Mr.) Pretorius awarded an amount of R200 000.00 (two hundred thousand rand) for the same number of days spent under similar conditions, it is without any stretch of the imagination grossly excessive. This simply illustrate the fact that the lower courts (District and Regional) does not follow and apply the principle of stare decisis set by this Court as High Court. To reiterate, this does not instill confidence in the justice system but conversely erode confidence. The Magistrate in Potchefstroom in the Galane case quoted supra, got it right and awarded an appropriate amount of R15 000.00 per day.

[22] The following circumstances were placed on record and need to be taken into account in determining an appropriate amount of compensation. The appellant was arrested at his place of employment. He was detained in a police cell for three (3) days under appauling conditions. He lost his employment where he earned R200 per day as a result of his incarceration, although no proof thereof was submitted. His arrest and subsequent detention was traumatic, although no expert evidence was presented in this regard. He was 30 years of age. His reputation has been damaged. Much as R25 000.00 for three (3) days detention following an unlawful arrest, which equates to less than R8 400.00 per day, is too little, an amount of R200 000.00 which equals to more than R66 000.00 per day, is grossly excessive. These two amounts does not at all relate to each other and that coming from the same Magistrate’s (District) Court. So much to say about conformity. Why this case was not consolidated with case number CIV APP MG10/2021 Khukwane Jospeh Tobase v Minister of Police on appeal in this Court (and even in the Magistrate (District) Court) is mindboggling. This creates problems.

[23] These two cases are not consolidated whereas it should have been consolidated as it stems from one and the same cause of action, although there are two different plaintiffs in each case. For the sake of convenience and in order to minimize and save costs, these two cases should have been consolidated. This much is obvious. Even the attorneys of record, who happened to be the same firm of attorneys in both matters, was alive to this because communication was forwarded that the two appeals serve together with one another in the same court, as court of appeal. Why no formal application was made for the consolidation of these two matters defies logic. As only one set of heads or argument was filed for both cases entitled “Joint Heads of Argument.” With minute minor differences, such as the difference between the ages of the two appellants, their circumstances are similar.

[24] Both these matters are also not opposed by the office of the State Attorney for and on behalf of the defendants (the Minister of Police and the Provincial / the National Commissioner of Police). No reason appear on record for the failure to appear and to defend these appeals. That this is a waste of State resources or being complacent therein that there be ‘poured from the horn of plenty’, behoves no argument. This is especially so in the matter that served before Magistrate Pretorius. The matter of Manase William Masifane, case number 13/2021, wherein a similar default judgment in an amount of R200 000.00 (two hundred thousand rand) plus costs and interest were awarded. This, much to the dislike and dissatisfaction of the appellants in these two matters of case numbers CIV APP MG 09/2021 and CIV APP MG 10/2021, who seems to protest about a lack of understanding as to the unfair application of the law in similar fact situations. Vigilant and prudent action on the part of the State Attorney’s office and their instructing clients the Minister of Police and the National / the Provincial Commissioner of Police could have cured and/or rectify the situation.

Perhaps an appropriate investigation can still be done in order to stop the process by legal steps been taken. Therefore, a copy of this judgment must be forwarded not only to the Office of the State Attorney, Mahikeng but also to their client departments the Minister of Police and the Provincial / the National Departments of Police. So too, must a copy of this judgment be forwarded to the Chief Magistrate for her attention and possibly appropriate action.

[25] Having considered all the facts and circumstances of this case, as well as the personal circumstances of the appellant, which is paramount and which must be considered, I am of the view that an amount of R15 000.00 per day, totalling R45 000.00, should be awarded as reasonable and appropriate solatium. The appeal against quantum should therefore be upheld. The appeal is unopposed and no costs order with regard to the appeal should

therefore be made.

Order

[26] Resultantly, the following order is made:

(i) The appeal succeed.

(ii) The order of the court a quo is reviewed and set aside and replaced with the following:

(iii) No order as to the costs of the appeal is made.

(iv) Copies of this judgment must be send to the State Attorney, Mahikeng to be forwarded to the Provincial Commissioner of Police, North West Province;

R D HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

_______________

MAHLANGU AJ

JUDGE OF THE HIGH COURT,