Lesomo v Minister of Police (436/2017) [2023] ZANWHC 161 (12 September 2023)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 436/2017

Reportable:

YES

/ NO

Circulate to Judges:

YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

SIPHO

LESOMO

Plaintiff

and

MINISTER

OF POLICE

Defendant

ORDER

(i) Judgment is granted in favour of the plaintiff in an amount of R75 000.00 (seventy-five thousand rand).

(ii) Interest is payable on the aforesaid amount at the prescribed rate of 10.5% per annum, from date of judgment until date of final payment.

(iii) The defendant is ordered to pay the costs of suit in respect of quantum on a party-and-party basis, to be taxed.

JUDGMENT

PETERSEN ADJP

Introduction

[1] This action comes before this Court to adjudicate the issue of quantum, following an order by Nonyane AJ on 29 April 2021, finding in favour of the plaintiff on the issue of merits.

[2] The only evidence presented in the trial on quantum was from the plaintiff. The plaintiff claims damages in the particulars of claim, in the amount of R60 000.00 for his unlawful arrest and detention which extended from 2 December 2016 to 5 December 2016, a period of three (3) days.

The evidence of the plaintiff

[3] The personal circumstances of the plaintiff adduced by way of oral evidence, is that he is presently thirty-seven (37) years old. At the time of his arrest on 2 December 2016 he was thirty (30) years old. He was, at the time of his arrest, employed at Thaba Thula Game Farm (although no proof of such employment was adduced). This employment was allegedly lost as a result of his arrest. He is presently a farmer selling pigs. The plaintiff resides in Vrede in the North West Province. Whilst the plaintiff is not married he has six (6) children aged fifteen (15), thirteen (13), twelve (12), nine (9), seven (7) and four (4) years old respectively. He attends the Salvation Apostolic Church.

[4] A message was left by one Mr Mabule at the plaintiff’s home for the plaintiff to contact him regarding a criminal charge which had been laid against him at Madikwe Police Station. On Friday, 2 December 2016, the plaintiff attended at Madikwe Police Station to report to Mr Mabule. He was informed by a colleague of Mr Mabule, Mr Nawe, that he was at Mogwase Magistrates Court. Mr Nawe made telephonic contact with Mr Mabule, who instructed him to arrest and detain the plaintiff, in his absence. Mr Nawe duly arrested the plaintiff and detained him at Madikwe Police Station. The plaintiff did not inform his family about his arrest.

[5] The holding cell in which the plaintiff was detained was estimated on demonstration by the plaintiff, to be 4 x 4m. According to the plaintiff he shared the cell with five (5) other detainees who allegedly threatened him, without elaborating on the nature of the threats. There was no water available in the holding cell and he could not bath himself as a result. There were no beds or mattresses on which to sleep and the detainees had to sleep on the floor with blankets. The food provided was not up to standard, except for the meal which was provided on the Sunday (4 December 2016).

[6] According to the plaintiff he was taken to court on Monday (5 December 2016) where he was released from detention, without appearing in court.

The approach to assessment of the plaintiff’s damages

[7] The assessment of damages in actions for unlawful arrest and detention predicated on deprivation of liberty is a matter left to the discretion of the Court which must be exercised judicially, having regard to the peculiar circumstances of the matter.

[8] In a recent judgment of the Supreme Court of Appeal, Motladile v Minister of Police[1], Kathree-Setiloane AJA (Mbatha and Gorven JJA and Nhlangulela and Mali AJJA concurring), with reference to the judgment of Dikoko v Mokhatla[2], and the locus classicus, Minister of Safety and Security v Tyulu[3] of the Supreme Court of Appeal, reiterated the approach to be adopted in the assessment of damages:

“[17] The assessment of the amount of damages to award a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff had spent in detention. Significantly, the duration of the detention is not the only factor that a court must consider in determining what would be fair and reasonable compensation to award. Other factors that a court must take into account would include (a) the circumstances under which the arrest and detention occurred; (b) the presence or absence of improper motive or malice on the part of the defendant; (c) the conduct of the defendant; (d) the nature of the deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of

an apology or satisfactory explanation of the events by the defendant; (g) awards in comparable cases; (h) publicity given to the

arrest; (i) the simultaneous invasion of other personality and constitutional rights; and (j) the contributory action or inaction of the plaintiff.

[18] It is as well to remember what this Court said in Tyulu v Minister of Police:

‘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 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. …’

[9] In Motladile, the Supreme Court of Appeal, “on consideration of the facts and circumstances of this case, as well as recent awards made by our courts in comparable cases and the steady decline in the value of money…” awarded Motladile R200 000.00 in compensation for the damages arising from his unlawful arrest and detention for four (4) days.

[10] In the Supreme Court of Appeal judgment of Minister of Police and Another v Erasmus[4], (Tsoka AJA (Dambuza, Van der Merwe and Mocumie JJA and Weiner AJA concurring), where Erasmus was awarded damages on appeal to the SCA for only two (2) days pre-court appearance detention, said the following:

“[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.”

[11] Having regard to Motladile and Erasmus, the sentiments expressed in Rahim and 14 others v The Minister of Home Affairs 2015 (7K6) QOD 191 (SCA) at paragraph 27, resonates with this Court in respect of the exercise of the judicial discretion relevant to determination of an appropriate award of damages. It cannot be gainsaid that deprivation of liberty is a serious matter. Recent

judgments have demonstrated varying degrees in the exercise of the judicial discretion of judicial officers in awards for deprivation of liberty and as Rahim emphasizes broad general considerations play a decisive role in the process of quantification. Damages undoubtedly, cannot be determined with mathematical precision. As Rahim makes it plain “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.”

Discussion

[12] This Court is constrained by the limited evidence of the plaintiff, to make an appropriate award. The plaintiff was arrested by Mr Nawe when he attended at Madikwe Police Station at the behest of Mr Mabule, an investigating officer said to be investigating a criminal charge against him. He did not inform his family of his arrest. There is no evidence that he was arrested in sight of members of the public who were known to him or in circumstances that occasioned embarrassment to him.

[13] The plaintiff was summarily detained from 2 December 2016 to 5 December 2016 without being appraised of the criminal charge/s being investigated against him, and there is no evidence that any attempts were made to formally charge him before he was taken to court. Arbitrary arrests and detention in these circumstances cannot be countenanced by the courts. This plays an important factor in the assessment of the damages to be awarded. No apology has been tendered to the plaintiff by the defendant for this arbitrary conduct of its servants.

[14] The holding cell had no water and the plaintiff and other detainees for that matter, could not bath themselves, which implicates unhygienic conditions and violates the right to dignity. The holding cell was small and housed five (5) detainees who had to sleep on the floor having only the use of blankets. The food provided was, on the evidence of the plaintiff of poor quality, save for the meal provided on the Sunday.

[15] As in Erasmus, the plaintiff was clearly detained in unpleasant conditions. Erasmus was awarded R25 000.00 for approximately 20 hours of detention. Mr Labuschagne for the plaintiff, after referring to a plethora of cases and awards made therein, submitted that the plaintiff be awarded R50 000.00 per day for each day of his detention.

[16] Mr Tjiana for the defendant made his submissions with reference mainly to judgments in this Division, which judgments were discussed in Motladile and the approach adopted, questioned. Mr Tjiana essentially proposes that the plaintiff be compensated R15 000.00 per day for the three days he was detained.

[17] In respect of both submissions, I reiterate what was said at paragraph 17 of Motladile that: “The assessment of the amount of damages to award a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff had spent in detention. Significantly, the duration of the detention is not the only factor that a court must consider in determining what would be fair and reasonable compensation to award.”

[18] As in Rahim, with the limited information in the evidence adduced by the plaintiff, it would be prudent to award a globular amount for the three days the plaintiff was detained following his arrest. This is done mindful of the decline in the value of money as postulated in Motladile.

Conclusion

[19] Having due regard to the peculiar circumstances attendant upon the arrest and detention of the plaintiff from 2 December 2016 to 5 December 2016 and the ratio in Erasmus and Motladile, I am satisfied that a fair award in an amount of R75 000.00 is merited.

Costs

[20] Costs ordinarily follow suit. The defendant is accordingly liable for the plaintiff’s costs of suit in respect of quantum, on a party and party scale, to be taxed.

Order

[21] In the result, the following order is made:

(i) Judgment is granted in favour of the plaintiff in an amount of R75 000.00 (seventy-five thousand rand).

(ii) Interest is payable on the aforesaid amount at the prescribed rate of 10.5% per annum, from date of judgment until date of final payment.

(iii) The defendant is ordered to pay the costs of suit in respect of quantum on a party-and-party basis, to be taxed.

A H PETERSEN

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION,

MAHIKENG

APPEARANCES

FOR THE PLAINTIFF:

MR

G G LABUSCHAGNE Instructed by:

LABUSCHAGNE

ATTORNEYS 19 Constantia Drive Riviera Park

MAHIKENG FOR THE DEFENDANT:

ADV

M TJIANA Instructed by:

THE

STATE ATTORNEY 1ST Floor East Gallery

MEGA

CITY

COMPLEX Cnr Sekame and Dr James Moroka Drive

MMABATHO

DATE OF HEARING: 07

AUGUST 2023

HEADS OF ARGUMENT FILED: 11 AND 18 AUGUST 2023

DATE OF JUDGMENT: 12 SEPTEMBER 2023

[1] (414/2022) [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) (12 June 2023).

[2] 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) para 57.

[3] [2009] ZASCA 55; 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA); 2009 (5) SA 85 (SCA) para 26.

[4] (366/2021) [2022] ZASCA 57 (22 April 2022)