Minister of Police v Gamede (A3010/2022) [2024] ZAGPJHC 23 (15 January 2024)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A3010/2022

COURT A QUO CASE NO: 14746/2018

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

DATE: 15 January 2024

SIGNATURE

In the matter between:

MINISTER OF POLICE

Appellant

(First Defendant in the Court a quo

and

GODFREY NTOBEKO GAMEDE

Respondent

(Plaintiff in the Court a quo)

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 15 January 2024.

JUDGMENT

MALINDI J:

Introduction

[1] On 10 December 2021 the Learned Magistrate, HR Viana, delivered judgment in this matter and ordered the Minister of Police to pay R150 000.00 with interest at the rate of 10.25% per annum from 17 May 2018 to date of payment, to the first plaintiff, Mr Godfrey Ntobeko Gamede. A costs order was awarded against the Minister. The Minister appeals against the whole judgment and order.

[2] The first and second plaintiffs were arrested on 31 January 2016 by members of the SAPS at about 18h00 in the city centre of Johannesburg on the charge of assault with the intention to do grievous bodily harm. Only the first plaintiff pursued the claim.

[3] The plaintiff was in police custody from 31 January 2016 to 9 February 2017, when he was granted bail, totalling 10 days in custody.

[4] The Minister noted an appeal against the judgment and order on the grounds that:

4.1 on the merits the court below:

4.1.1 erred by concluding that the Minister produced no evidence to rebut the claim;

4.1.2 ignored relevant and admitted documentary evidence.

4.2 on assessing damages, the court below:

4.2.1 erred in awarding R150 000.00 in general damages as just and equitable in that:

4.2.1.1. the plaintiff’s claim did not include detention subsequent to being remanded in custody by the court;

4.2.1.2. by accepting the plaintiff’s oral evidence as to his past arrest and detention period in custody;

4.2.1.3. the post first appearance in Court period was a claim against the second defendant, the National Prosecution Authority (“NPA”), which was withdrawn;

4.2.1.4. alternatively, that the court below erred in not regarding the further detention after the first court appearance as a novus actus interveniens.

4.3 Lastly, that the court below erred in awarding interest from date of demand instead of date of judgment, the claim not being of a liquidated nature.

Irregularity of the Appeal

[5] The plaintiff submitted that the appeal be struck from the roll for the reason that, inter alia, the Minister failed to request reasons for judgment from the Magistrate as required by Rule 51 of the Magistrate’s Court Rules, Rule 50 of the Uniform Rules of Court and section 84 of the Magistrate’s Court, Act 32 of 1944. The court need not entertain much time on this point. Counsel for the Minister disposed of this point quickly by pointing out that the plaintiff did not raise this irregularity as would be required by Rule 30 of the Uniform Rules of Court. The acquiesced to these proceedings from when a notice of appeal was served on him and to all other procedural steps taken thereafter. It is too late in the day to now raise such a point. In any event, a full judgment was delivered by the Magistrate. The reasons for his order are contained

therein.

The Pleadings

[6] The combined summons was issued on 13 July 2018.

[7] Claim A is against the Minister for R50 000.00 for unlawful arrest and subsequent detention.

[8] Claim B is against the NPA for pursuing a prosecution that the plaintiff claims was flawed. He claims R150 000.00 for the unlawful, unjustifiable and malicious prosecution.

[9] The claims distinguish between the police conduct of arrest and the prosecution of the charges beyond the arrest which lasts until the first appearance in court.

[10] At the commencement of the trial the plaintiff amended his particulars of claim to include loss of income in the amount of R106 000.00. This claim was dismissed.

[11] The Minister contends that the amendment of quantum to R150 000.00 was to accommodate the loss of earnings. Having found in favour of the plaintiff, the award should have been R50 000.00 at most on.

[12] The Minister’s contention in this regard is not correct. The amended particulars of claim[1] make a claim for R150 000.00 being for deprivation of liberty, loss of dignity, humiliation, emotional shock, discomfort and

contumelia. A further amendment at the hearing was made in order to add a claim for loss of earnings to the globular amount of R150 000. The additional amount for loss of earnings is R106 185.00 as calculated by an actuary.[2]

[13] The amendment was moved in terms of Section 111 of the Magistrate’s Court Act, 32 of 1944, and a ruling allowing the amendment was granted by the Magistrate.[3]

[14] Regarding the portion for loss of earnings the Magistrate found that the plaintiff has not proved any loss of earnings.[4]

[15] In the circumstances the amount that the plaintiff sought to prove as loss of earnings does not have to be subtracted from the globular amount of R150 000. It was a separate additional claim which was dismissed.

[16] Counsel for the plaintiff, Mr Mohlala, correctly submitted that even if the amount of R106 185.00 is disregarded, the court must still award an amount commensurate to the length of plaintiff’s detention. He submitted that that is what the Magistrate had done. I agree.

Quantum of Damages

[17] Counsel for the Minister, Mr Mabilo, submitted that the amount of R50 000.00 be awarded if the Minister fails on the defence that no compensation be awarded on the ground that the plaintiff contributed to his or her misfortune. This was not pleaded. The Minister conceded that the arrest was unlawful. I say no more.

[18] In the circumstances, an award is made of R150 000.00 (one hundred and fifty thousand rand only).

[19] A debt lies after it has been quantified unless it is a liquid debt. I agree with Mr Mabilo that interest should only have been ordered from the date of judgment not issue of demand in terms of section 3 of October 40 of 2002. The case of Mabaso v National Commissioner of Police and others[5] has held that a notice of demand in terms of the Act does not quantify or make liquid the amount claimed thereunder. The interest

is therefore ordered from date of the judgment in the court below.

Conclusion

[20] In the circumstances the appeal succeeds in respect of the quantum awarded and the rate of interest ordered in the court below. The costs order should reflect this too.

[21] Therefore, the following order is made:

1. The appeal is dismissed.

2. Interest on the amount referred to in paragraph 1 above shall be at the rate of 10.25% per annum from the date of Judgement.

G MALINDI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

L FLATELA

FOR THE APPELLANT: Adv N Mohlala INSTRUCTED BY: State Attorney, Johannesburg COUNSEL FOR RESPONDENT: Adv P A Mabilo INSTRUCTED BY: Marokane Attorneys DATE OF THE HEARING: 18 October 2022 DATE OF JUDGMENT: 15 January 2024

[1] CaseLines: 0003-15, paras 10 and 12

[2] Judgment: CaseLines 0001 – 3; Record: CaseLines 0003-177 l20 ff

[3] Record: CaseLines 0003-182 to 0003-184

[4] Judgment: CaseLines 0001-8, para 22

[5] 2020 (2) SA 375 (SCA)