Khumalo v Minister of Police and Another (3046/2013) [2021] ZAFSHC 313 (25 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 3046/2013

In the matter between:

PAPIKI SAM KHUMALO Plaintiff

and

THE MINISTER OF POLICE

WARRANT-OFFICER MOTAUNG

Defendant

CORAM: C L PAGE AJ

HEARD ON: 3 September 2021

DELIVERED ON: 25 November 2021

[1] The Plaintiff instituted action against the Defendants based on the assault, wrongful arrest and detention of the Plaintiff on 15 March 2011 at or near Kutlwanong, Odendaalsrus, Free State.

[2] The merits have been conceded and the court is tasked with deciding on the quantum.

The Factual Matrix

[3] On or about 15 March 2011 and at the home of the Plaintiff, near Kutlwanong, Odendaalsrus, Free State, the Second Defendant grabbed and lifted the Plaintiff by his belt, dragged, pushed, slapped, and kicked the plaintiff and thereafter loaded him into the back of a police van. The Second Defendant drove off with the Plaintiff and later stopped at a place of entertainment. The Second Defendant later arrived at the police station with the Plaintiff and took him into the office. At this stage he remained in the office and was not placed in a cell. The Second Defendant assaulted the Plaintiff again at the police station. The Second Defendant then loaded him again into the police van and drove off with him to consult with other persons. The Second Defendant questioned the Plaintiff about his whereabouts on a particular day. The Second Defendant drove back to the police station leaving the Plaintiff in the back of the police van. The duration of the detention in the police van and police station was approximately five hours. The Plaintiff was thereafter dropped off at his home by the Second Defendant and warned that he will return the next day. The Plaintiff returned to the police station the next morning with his parents. The investigating officer informed the Plaintiff that he was being released. The arrest was effected without a warrant of arrest and no prosecution ensued.

[4] As a result of the assault, the Plaintiff suffered physical injuries to his scrotum, jaw, face, hip and body and tongue. The Plaintiff testified that the arrest affected his life not only on a physical level but also on a psychological level.

[5] The Plaintiff related in his evidence that he consulted a general practitioner, Dr Vayed on 18 February 2011 and paid an amount R 250.00 for his visit. The doctor prescribed pain killers for pain. After the arrest and assault his life changed a lot. He was fearful of the police and felt anger and hatred towards the police. He developed a growth on his genitals and his sexual life was affected. He suffered from nightmares about the event, his work performance was affected negatively. He had to move from his family home since his behaviour changed towards his family. He consumed more alcohol than before which also affected his daily life and relationships. He was employed at a security store at the time and was responsible for installation of alarm systems, something he was prided for at work. After his arrest the standard of his work deteriorated, and his employment was terminated as a result thereof. He was subsequently employed as a security guard but was not able to keep his employment at a few other companies. He testified in detail about the income he earned at the said employers.

[6] The following expert witnesses testified:

Dr Shevel: Psychiatrist.

Dr Landman: Industrial Pshycologist

Mr W H Boshof: Actuary.

[7] The expert reports handed up by agreement between the parties.

Dr Smuts: Neurologist.

Dr Cronje: Urologist.

Dr Moshokoa: Urologist

A joint minute by Drs Moshokoa and Dr Cronje)

Dr Greef: Psychologist.

[8] It is the Plaintiff’s case that the Plaintiff suffered from post-traumatic stress disorder which was caused by the assault, arrest and detention by the Second Defendant. It is common cause that the physical injuries are not severe and is not relied upon by the Plaintiff as a cause for the Plaintiff’s claims for future medical expenses and past and future loss of income. It is the Plaintiff’s case that the diagnosis of post-traumatic stress disorder is the cause upon which the Plaintiff relies for future medical expenses and future loss of income.

Evidence in respect of post-traumatic disorder (PTSD)

[9] Dr Shevel consulted with the Plaintiff 5 years after the incident. It is his finding that the Plaintiff had ongoing symptoms of PTSD at the time. He describes the condition as chronic and treatable. He comments that the Plaintiff had not received psychiatric treatment since the event five years after his arrest. His evidence is that PTSD can at times result in significant social and occupational upheaval. According to him the Plaintiff’s occupational functioning did not appear to be significantly adversely affected by the PTSD. He bases this on the information that the Plaintiff continued to work for a further 10 or 11 months and worked at a different security company from 2012 until 2014. Dr Shevel comments that the Plaintiff’s chronic symptoms were not expected to result in long term occupational impairment. Dr Shevel comments that the PTSD has caused some disruption in the Plaintiff’s social life.

[10] He confirms in his oral evidence that PTSD is caused by a stressful life threatening event. He confirms that the assault on the Plaintiff could have caused the condition. He states that the Plaintiff has not had any previous mental health issues, nor does he have a family history of mental issues. He confirms that the assault could have been the cause of the condition of PTSD.

[11] The expert report of Dr Paul Greef was admitted into evidence by agreement between the parties.

It is necessary to refer to this report since the diagnosis of PTSD is made by Dr Greeff. I refer to what is stated in the medico-legal report dated 15 February 2011:

“ The clinical interview and testing procedure revealed that a possible diagnosis is a post-traumatic stress disorder- deferred, as he does not meet all the diagnostic criteria at the current moment. He does, however, still present with the key symptoms present in a PTSD diagnosis. I could not determine any of the claimed forgetfulness and would refer to a neurologist for further examination if situation worsens.”

[12] Dr J A Smuts, a neurologist, having considered the report of Dr Paul Greef, concludes that the Plaintiff suffers from scarring, chronic pain and emotional problems.

[13] It is apparent that the three expert witnesses base their conclusions on a single consultation with the Plaintiff. The reports contain only information provided by the Plaintiff and no follow up investigations are conducted into the family or medical history of the Plaintiff. The opinions are based simply on what the Plaintiff conveys, namely that his condition is caused by the circumstances of his arrest. Dr Greef’s diagnosis is, as per his report, “possible post-traumatic stress disorder”. Dr Shevel concludes that the Plaintiff’s chronic symptoms are not expected to result in long term occupational impairment.

[14] Without a full investigation into the medical and family history of the Plaintiff it is not certain whether the PTSD was caused by the arrest alone. There is no investigation into any other possible causes for the PTSD and whether such other causes could have contributed to the condition. The reports and the evidence of the experts are not at all conclusive on whether the PTSD was caused by the arrest. One can even go further and conclude from the expert reports and evidence that the condition of PTSD is not clear and thus inconclusive. What is clear from all the evidence in its totality is that the Plaintiff definitely suffered mental anguish as a result of the arrest. Dr Greef, the neurologist concludes that the Plaintiff suffered from emotional problems.

[15] Based on the expert evidence it is not proven on a balance of probabilities that the Plaintiff’s condition of post-traumatic stress disorder was in fact caused by the circumstances and conditions of his arrest.

[16] The claims of future medical expenses, past and future loss of income which is based on the condition of PTSD as a result of the arrest can as a result not succeed.

The remaining issues for determination:

Past Medical Expenses:

[17] The past medical expenses amount to R 250.00. The Plaintiff testified that he paid the said amount for medical expenses to Dr Vahed in cash. This evidence stands uncontradicted.

General Damages:

[18] In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) in paragraph 17 of the judgment, Nugent JA states the following:

“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. As pointed out by Potgieter JA in Protea Assurance, after citing earlier decisions of this court:

“….the trial Court or the Court of Appeal may, as the case may be, may pay regard to comparable cases. It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court’s general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.”

[19] In 2009 the Supreme Court of Appeal confirms and elaborates on the sentiments expressed hereabove as follows per Bossielo JA in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) at para 26:

“ 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 cases to serve 10 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).”

[20] In 2014, in W v the Minister of police (92)/2012) [2014] SCAat para 38 the Supreme Court of Appeal again expresses the same sentiments in respect of quantum at para 38 of the judgment. The court confirms that there is no discernable pattern other than that the courts were not extravagant in compensating loss, that reference to awards of general damages in previous cases are fraught with difficulty and that each case needs to be looked at as a whole and further that few cases were directly comparable.

[21] In 2015 the SCA in Rahimm and 14 Others v Minister of Home Affairs (4) SA 433 (SCA) para 27, deals with the issue further as follows:

“ 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: (i) circumstances under which the deprivation of liberty took place; (ii) the conduct of the defendants; and (iii) the nature and duration of the deprivation.”

[22] The prevalence of wrongful arrests and assaults by members of the South African Police on the people of South Africa is a grave concern. Mogoeng CJ in De Klerk v Minister of Police [2019] ZACC 32; 2020(1) SACR 1(CC) Par 132 holds that “…considerations of public policy based on our constitutional norms and values demand a commitment to the fulfilment of constitutional obligations, especially those that affect the liberties of individuals...” Further to this paragraph 170 of the minority judgment the following comment by Mogoeng CJ with specific reference to the constitutional obligations of the police needs mentioning in the framework of claims of wrongful arrest and assaults on citizens:

“In a country that bleeds from acute dereliction of duty and cries out for more attention to be given to accountability, each must therefore be held accountable for their own failure to fulfil their constitutional obligations. Equally important is the need to reiterate the provisions of section 2 of the Constitution that “the obligations imposed by it must be fulfilled”.

[23] On the facts of the matter before me the Plaintiff was unlawfully arrested and he suffered emotional distress, pain and suffering as a result of his unlawful arrest at the hands of the Second Defendant who has failed to comply with his constitutional obligation. Herein lies the seriousness of such behaviour. Our courts have expressed that it places a high premium on personal liberty and the infringement of rights to dignity of all people. The damages awarded by courts are not punitive but rather awards of aggravated damages. Whether the existing punitive measures in respect of members of police who are in breach of the supreme law of South Africa, namely our constitution, may hopefully become a new and thoughtful dialogue in future.

[24] Consequently, and taking into account all the circumstances, I make the following order:

1. R 250.00 in respect of past medical expenses.

2. R 10 000.00 in respect of the wrongfull arrest.

3. R 15 000.00 in respect of the assault.

4. The First Defendant is ordered to pay the Plaintiff’s taxed or agreed

party and party costs on the High Court Scale until date of this order including the costs in respect of obtaining and preparation of the following legal reports:

3.1 Dr JA Smuts.

3.2 Dr P Cronje.

3.3 Dr P Greef.

3.4 Dr DA Shevel.

3.5 Dr J Landman.

3.6 Munro Actuaries.

1. Interest at the prescribed interest rate as from date of this order.

C L PAGE AJ

For Plaintiff: HONEY ATTORNEYS

HONEY CHAMBERS

NORTHRIDGE MALL

KENNET KAUNDA ROAD

BLOEMFONTEIN

For Defendant: THE STATE ATTORNEY