Minister of Police v Page (CA 231/2019) [2021] ZAECGHC 22 (23 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: CA 231/2019

In the matter between:

MINISTER OF POLICE

Appellant

And

EDGAR PAGE

Respondent

JUDGMENT

GOVINDJEE, AJ:

Background

[1] The respondent was arrested without a warrant by members of South African Police Service on a charge of arson, on 18 January 2017. He was thereupon detained for approximately one day at Joubertina Police Station, transported to Court on 19 January 2017, and held in awaiting trial cells for approximately an hour before appearing in court, whereupon the charges he had been facing were withdrawn.

[2] Having been aggrieved by the conduct of the police, the respondent successfully sued the appellant in the Joubertina Magistrate’s Court for damages arising from the arrest and detention.

[3] In support of his claim, the respondent averred that various constitutional rights had been violated;[1] his personal integrity, name, reputation and dignitas were impaired and that he suffered contumelia as a result of the detention. He consequently claimed general damages and contumelia in the amount of R100 000.

The Magistrate’s Court decision

[4] The learned magistrate concluded that the investigating officer had not exercised her discretion properly and had acted arbitrarily and for a purpose other than to secure the respondent’s attendance in court. As a result, the arrest and consequent detention were found to be irrational and unlawful, justifying an award of damages.

[5] The Court a quo noted the difficulties of determining an appropriate quantum of damages. It considered the respondent’s evidence regarding the impact of the arrest and detention on him, and that his standing in the business community had been affected. The Court concluded as follows:

“But the Court will as close as possible try to put the plaintiff in a position where he can feel vindicated, but not so far as to enrich him which will then rather make a mockery of the police as well, although in some instances that is fairly common. The Court is of the opinion taking into account all the evidence that was presented and relevant case law that an amount of R60 000 is fair for the plaintiff as the period of detention was not that long.”

Interests and costs followed this outcome.

The grounds of appeal

[6] The appeal is only against the quantum of damages awarded. The grounds of appeal are that the Honourable Magistrate -

“1. erred in finding that an amount of R60 000, 00 (Sixty Thousand Rand) as award for

respondent’s wrongful and unlawful arrest and detention was fair;

2. erred in awarding the respondent the aforementioned sum (R60 000) whereas it found that the period of detention was not that long;

3. failed to take into consideration that at no stage during his (Respondent’s) arrest and detention was he treated in a cruel and inhuman manner;

4. failed to take into consideration that the Police officers were not motivated by improper motives and malice when executing the arrest; and

5. ought to have awarded a lesser amount to the respondent than a sum of R60 000, more especially that respondent’s detention was not too long.”

Applicable law

[7] It is trite that in cases involving deprivation of liberty, the quantum of damages to be awarded is in the discretion of the trial court, to be exercised fairly, and generally calculated according to what is equitable and good, and on the merits of the case itself (ex aequo et bono). As a result, an appeal court should be slow to interfere, unless there are specific reasons to do so.[2] Also, no judgment can be all-embracing, and the omission of a specific factor from a judgment does not necessarily imply that the

court a quo failed to consider the factor in exercising its discretion.[3] Furthermore, in the absence of material, demonstratable misdirection on the part of the trial court, its findings of fact must stand as presumptively correct.[4]

[8] Various factors play a role in determining an appropriate amount, including 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 of the deprivation of liberty; the status, standing, age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; awards in previous

comparable cases (together with the effect of inflation) and the fact that, in addition to physical freedom, other personality interests (such as good name and honour) and constitutionally protected fundamental rights have been infringed.[5]

[9] It is useful to consider the assessment of awards for damages in previous cases, although this exercise poses its own challenges. In Minister of Safety and Security v Seymour,[6] for example, the SCA considered a series of cases before noting that there was no ‘discernable pattern other than that our courts are not extravagant in compensating the loss’[7] and that in the process of quantifying non-patrimonial loss, principles of fairness and conservatism play a decisive role in assessing damages.[8]

[10] In April v Minister of Safety and Security,[9] Jones J held that “[i]t is…necessary to emphasize that an award for contumelia involving the invasion of bodily integrity is of a different kind

from general damages ordinarily awarded in cases of bodily injury. To my mind, it belongs with an award for an invasion of the right to personal liberty (in wrongful arrest or imprisonment cases)…and the indignity and offence to one’s sense of justice that goes with them. In our modern constitutional era damages for these violations should not be dismissed as mere balm for wounded feelings, and they should not be allowed to become fused or confused with damages for mental pain or anguish…” Despite these remarks, the court ultimately supported a holistic approach by which a single award of damages could be made, on the understanding that the importance of contumelia in its own right should not be overlooked.[10]

[11] In Olivier v Minister of Safety and Security,[11] an amount of R50 000 was awarded as damages for an invasion of the plaintiff’s rights and dignity following arrest in the presence of colleagues whilst on duty, detention for six hours and three appearances in court as an accused. In Minister of Safety and Security v Tyulu,[12] a Full Bench award of R50 000 was reduced on appeal to the Supreme Court of Appeal to only R15 000, on consideration of the totality of facts (including a short period of detention, and despite the social and professional standing of the respondent, who was a magistrate, and the improper motive for the arrest). The Court summarised the correct approach to the assessment of damages for unlawful arrest and detention as follows:

“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.” (references omitted).

[12] In Peterson v Minister of Safety and Security,[13] Plasket J awarded R60 000 for unlawful arrest and detention despite the plaintiff only having been in custody for eight hours, on the basis of the indignity of the situation: the plaintiff was arrested in a state of undress, observed by people in the street and subjected to malicious conduct on the part of his arrestor. In Madyibi v Minister of Police,[14] unlawful arrest and detention for a 24 hour-period resulted in an award of R40 000, the decision having been influenced by the manner of the arrest, the plaintiff’s standing in society and duration of detention. Finally, in Nel v Minister of Police,[15] this Court considered several awards in similar cases, as well as the impact of inflation, in concluding that an amount of R35 000

would be appropriate for 20 hours’ detention in a dirty, stinking cell.

Evaluation

[13] The facts presented to the Court a quo, and its subsequent judgment, must be considered in the light of the above-mentioned factors and principles. Many of the applicable facts are seemingly undisputed. On the one hand, there is no suggestion of improper motive, malice or harsh conduct on the part of the appellant, and the time spent in detention was not excessive. On the other hand, the respondent’s constitutional rights were infringed by the conduct of the appellant’s employees; he was deprived of his liberty for a time and his reputation has been affected.[16] His combined claim is for general damages and contumelia.

[14] Fairness demands that the court consider all circumstances relevant to quantify the harm caused by the violation of constitutional rights, ignore irrelevant considerations while bearing in mind the purpose of awarding damages and carefully (and conservatively) exercising its discretion.[17]

[15] In this case the disparity between the amount awarded by the Court a quo and an appropriate amount is striking and must be construed as a material misdirection, particularly given the lack of evidence

as to the impact of the unlawful arrest and detention on the respondent. The circumstances in this matter appear to be somewhat

less severe than in many of the cases cited. An amount of R30 000 would be fair and reasonable in the circumstances of this case. The court a quo should have found as much, misdirected itself in a material respect and thus erred in not so concluding.

Order

[16] I would order as follows:

1. The appeal is upheld, with costs.

2. The order of the Court a quo is set aside and substituted with the following:

“(a) The defendant pay the plaintiff R30 000 as and for damages for the plaintiff’s arrest and detention.

(b) Interest on R30 000 is payable at the prescribed rate from fourteen (14) days after 30 October 2018 to date of payment.

(c) The defendant pay the plaintiff’s costs of suit on the appropriate Magistrate’s Court scale.”

_________________

A GOVINDJEE

ACTING JUDGE OF THE HIGH COURT

S M MBENENGE, JP

I agree. It is so ordered.

____________________

S M MBENENGE

JUDGE PRESIDENT OF THE HIGH COURT

Appellant’s attorney

: A V Mgangatho

Instructed by

: The State Attorney

Port Elizabeth

c/o Mgangatho Attorneys

Grahamstown

Respondent’s attorney

: No appearance [the respondent

having issued a notice to abide the decision of the Court a quo]

Vic Skelton Inc.

c/o Cloete & Company

Date for which appeal set down : 12 February 2021 [appeal disposed of

in terms of s 19(a) of the Superior Courts Act 10 of 2013]

Date judgment delivered

: 23 February 2021

[1] Including the rights to dignity, freedom and personal liberty, freedom of movement and fair trial rights.

[2] See Neethling v Du Preez; Neethling v Weekly Mail 1995 (1) SA 292 (A).

[3] R v Dhlumayo 1948 (2) SA 677 (AD).

[4] See S v Hadebe and others 1997 (2) SACR 64 (SCA) at 645E-F.

[5] See Visser and Potgieter The Law of Damages (3rd Ed) 545-548, as cited in Ntshingana v Minister of Safety and Security and another ECD 14 October 2003 (Case No. 1639/01) unreported, para 28. Also see Peterson v Minister of Safety and Security [2009] ZAECGHC 65 para 15.

[6] 2006 (6) SA 320 (SCA) at 326.

[7] See Visser and Potgieter 547 at fn 421.

[8] Ibid at 500.

[9] [2008] 3 All SA 270 (SE) at 281-2.

[10] It has been noted that courts can award a single amount of damages for the infringement of different forms of non-patrimonial loss, and indeed it is convenient to do so.

[11] 2009 (3) SA 434 (W) at 445-6

[12] 2009 (5) SA 85 (SCA).

[13] [2009] ZAECGHC 65.

[14] 2020 (2) SACR 243 (ECM).

[15] [2018] ZAECGHC 1.

[16] The Respondent’s testimony in this regard was brief and contained few specifics: he was arrested without justification and felt that his constitutional rights to dignity and freedom of movement were infringed as a result; he had never had to appear in a court previously; he was confined in a small cell with six or seven other people, the cell was smelly, he had to sleep on the ground and would not wish to return to that environment. The cross-examination focused mainly on discrediting a statement by the Respondent that he had “lost everything” and “lost my family” (due to divorce) subsequent to the arrest. Cf Rudolph v Minister of Safety and Security 2009 (5) SA 94 (SCA) at 102-3, where the court stressed that substantial damages were warranted due to unhygienic conditions, a cell infested with cockroaches, dirty, insect-ridden blankets and lack of access to drinking water, amongst other factors.

[17] See Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A).