Mhishi v Minister of Police and Others (54384/2014) [2017] ZAGPPHC 1301 (8 September 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 54384/2014

In the matter between:

GILSON MHISHI

PLAINTIFF

vs

MINISTER OF POLICE

1st DEFENDANT

NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE

2nd DEFENDANT

SEARGENT SICELO MPUQUA

3RD DEFENDANT

JUDGMENT

KUBUSHI J

[1] The plaintiff issued summons against three defendants, namely, the Minister of Police ("the Minister"), the National Commissioner of the South African Police Service ("the Commissioner'') and Sergeant Sicelo Mpuqua ("Sgt Mpuqua") for damages for unlawful detention, loss of enjoyment and amenities of life and defamation.

[2] The plaintiff's case is that on 1 August 2013 Sgt Mpuqua, whilst acting within the scope of his employment as a member of the South African Police Service, arrested him on an alleged charge of rape and was subsequently detained in the police cells. Despite the complainant's filing of a withdrawal statement on 4 August 2013 at 10h00, the police continued to unlawfully detain him in the police cells until 5 August 2013 when he appeared in court. The state prosecutor declined to prosecute because of the withdrawal statement. The plaintiff was detained from 1h10 on 2 August 2013 until 5 August 2013. According to the plaintiff the damages he sustained as a result amounts to R700 000.

[3] The Commissioner was duly served with a notice in terms of s 3 of Act 40 of 2002 per registered mail on 10 April 2014. A summons in this instance was served on the Minister on 31 July 2014 at the State Attorneys' Pretoria offices and on the Commissioner on 5 August 2014. There is no proof of service of the summons on Sgt Mpuqua.

[4] An appearance to defend the matter was filed and served on 29 August 2014 for the three defendants. The defendants had 20 days within which to deliver their plea but failed to do so. A notice of bar was delivered at the State Attorneys' office on 17 October 2014. No plea has been filed as yet. The plaintiffs attorneys addressed letters to the defendant's attorneys of record requesting them to file their plea even though it was out of time but they failed and/or refused to file same.

[5] The matter first served before me on 30 August 2017 where I granted judgment on the merits and reserved judgment on quantum.

[6] In the assessment of damages for the heads of damages claimed by the plaintiff, 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.[1]

[7] It is trite, as well, that there is no fixed formula for the determination of quantum in matters of this nature. A court has a wide discretion in determining the amount of damages for compensation Each case must be decided on its merits and the circumstances of what is just and fair.

[8] As regards quantum, the plaintiff is claiming the following damages: an amount of R450 000 for unlawful arrest and detention resulting in the deprivation of his liberty as well as contumelia; R250 000 for general damages as a result of temporary loss of the enjoyment of the amenities of life in that he suffered loss of

self-respect, humiliation, degradation, loss of dignity and post-traumatic stress disorder; for defamation R100 000 as a result

of defamatory remarks made by Sgt Mpuqua and other members of the police in front of their colleagues and members of the public and he suffered shame and dishonour.

[9] The plaintiff was detained for a period of almost four days. He contends that as a result of the arrest he experienced shame and humiliation by being arrested before his wife and children which was exacerbated when the neighbours got to know that he was being arrested for rape. On his release and return to the estate where he lived it was made known that the community did not want a rapist in their midst and he was eventually forced to leave the premises. He was not able to sell the house and continues to pay the bond thereof together with a lease for the new place he is now staying with his family. Neighbours made snide rape comments in his presence and behind his back. His children were teased about having a rapist father and the wife was criticised for staying with him. At work, when it became known that he was arrested for rape, he was suspended

whilst being investigated but was recalled. He is experiencing difficulties at work more particularly in relation with his fellow

female colleagues.

[10] The detention impacted on his psyche. He was detained in a cell with a number of inmates that were detained for serious transgressions. The toilets were in serious need of repair and stank. At the time of his arrival in the cells there was no bedding to sleep on and he had no warm clothes. The cells were dirty, smelled of urine and infested with cockroaches. The shower was broken and he could not wash himself. He had no access to drinking water and the food was unpalatable. The blanket he received the following day was dirty and insect-ridden. He was in addition threatened and harassed by other inmates.

[11] Having considered the plaintiff's evidence as contained in the affidavit filed in support of his application for default judgment I make the following findings:

11.1 Arrest: there is no evidence that the plaintiff was unlawfully arrested by Sgt Mpuqua. The evidence is that Sgt Mpuqua arrested the plaintiff at the instigation of the complainant who laid a charge of rape against the plaintiff. The charge was withdrawn only after the

plaintiff was arrested.

11.2 Detention: Even though the plaintiff spent almost four days in detention, the only portion of the period in detention which can be said to be unlawful is after the complainant filed her withdrawal statement. In essence the unlawful period of detention can be calculated from 10h00 on 4 August 2013 when the withdrawal statement was filed until on 5 August 2013 when he was released. The evidence does not indicate at what time the plaintiff was released on the 5 August 2013. I would in the circumstances, and to the benefit of the

plaintiff, calculate the period from 10h00 on 4 August 2013 until 16h00 on 5 August 2013 which amounts to almost 30hrs (1 day and

6hrs).

11.3 Defamation: there is no evidence that the plaintiff was defamed by either Sgt Mpuqua or other members of the South African Police Service.

[12] I am of the view that a just and equitable amount to compensate the plaintiff for the unlawful detention is R75 000. There is no proof on record that summons was served upon Sgt Mpuqua and, as such, I cannot grant default judgment against him.

[13] In the circumstances default judgment in the amount of R75 000 plus costs is granted against the first and second defendants jointly and severally, the one paying the other to be absolved.

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

Counsel for Plaintiff Adv. P.A Wilkins

Instructed by

Nel & Snyman Attorneys

Counsel for Defendants No appearance

Instructed by

State Attorney

Date heard

30 September 2017

Date of judgment 08 September 2017

[1] See Minister of safety and Security v Tyulu 2009 (5) SA 85 para [26] at 930 - F.