Minister of Police v Payne (A416/2017) [2018] ZAGPPHC 419 (19 June 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGHCOURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

CASE NUM BER: A416/2017

19/6/2018

In the matter between:

MINISTER OF POLICE

APPELLANT

(Second Defendant in the court a quo)

and

EDWARD CHARLES PAYNE

RESPONDENT

JUDGMENT

KUBUSHI, J

[1] The appellant launched an appeal against the whole of the judgment and order delivered by the trial magistrate L.M.C Mokoena in the Magistrate's Court for the District of Tshwane Central held at Pretoria, on 19 June 2017. The respondent is opposing the appeal and has also launched a cross appeal pertaining to the narrow issue on the aspect of the interest rate ordered in the judgment.

[2] The respondent had instituted a claim against the appellant for unlawful arrest and detention. The issue of liability was conceded by the appellant at the trial leaving only the issue of quantum to be determined. The respondent was the only witness to testify with regard to quantum, as such, his evidence before the trial court remained unchallenged.

[3] The respondent's evidence shows that on 18 November 2012 at approximately 15:00 he was at a taxi rank where he was assaulted by some unknown person which led to him being accosted by a number of people including taxi drivers. He fled in his motor vehicle to the police station where he sought refuge. He was, however, charged for reckless driving and negligent driving and use of drugs (despite having tested negative for drugs). He was placed in the main holding cell at approximately 16:00 on that day. What aggravated his detention is that: he was detained in a 3 x 3 metre cell; he was not given anything to eat or drink; was given one dirty/smelly blanket to share with his brother; he was not given any medical treatment for his injuries; the floor of the holding cell was soaking wet and during the night his blanket and clothes became wet as well; he was wearing a short sleeved shirt and the night was very cold. At approximately 3:10 he and his brother were released on warning and they walked home. He spent approximately 12 hours in detention.

[4] On the basis of this evidence the trial magistrate granted the following order:

4.1 That the defendant be and is hereby ordered to pay an amount of R80 000 (Eighty Thousand Rand) to the plaintiff for his unlawful arrest and detention.

4.2 That the defendant be and is hereby ordered to pay interest on the aforesaid amount at 10.25% per annum from date of demand.

4.3 That the defendant is ordered to pay costs of suit on a party and party scale to be taxed by a taxing master.

[5] The appellant is appealing this order on the following grounds:

5.1 The learned magistrate erred in awarding the respondent an amount of R80 000 as compensation for unlawful arrest and detention for 12 hours.

5.2 The learned magistrate erred in awarding the respondent the amount of R80 000 in absence of compelling reasons for awarding such higher quantum which is inconsistent with relevant authorities.

5.3 The learned magistrate erred in failing to consider relevant authorities presented by the appellant.

[6] Before us on appeal it was argued on behalf of the appellant that the trial magistrate failed to exercise her discretion judicially in that she failed to take into account the principles applied by the authorities in cases of unlawful arrest and detention. In particular, it was argued that the trial magistrate failed to consider the following principles:

6.1 Firstly, the principle set out in Minister of Safety and Security v Tyulu[1] which states that -

"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 needed solarium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that damages are awarded commensurate with the injury inflicted."

6.2 Secondly, the principle enunciated in Zonda v Minister of Police[2] where it was held that where the state coffers to which citizens of the country made contributions are to be the best source of payment, some restraints must be called for when awarding damages.

[7] The submission by the appellant is that by awarding R80000 the trial court created an impression that money and/or compensation is more than a good solatium for the deprivation of liberty.

[8] To my mind, the appellant's counsel is disingenuous in his argument, in that he quotes what suits his client in the judgments and not what the law is. The judgment in Tyulu is very explicit when it comes to the assessment of damages for unlawful arrest and detention. Besides advocating for the primary purpose for which damages are awarded, the judgment also promotes the right to personal liberty of the citizenry and the seriousness with which any arbitrary deprivation of personal liberty should be viewed in our law. In that regard the judgment goes further to state that -

. . However, our courts should be astute to ensure that the awards they make for such infractions reflect the importance of the right of 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 helpful to have regard to awards made in previous cases to serve as a guide, such 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."

[9] These are the principles as applicable in our law that should be followed by all judicial officers when assessing damages. Ultimately it remains in the discretion of the judicial officer hearing the matter, after considering all the facts of the particular case, to determine the appropriate award. Appellant's counsel was at pains to explain why it should be said that the trial magistrate did not exercise her discretion judicially based on the principles enunciated in Tyulu. He was unable to explain which of the principles the trial magistrate failed to comply with.

[10] In her judgment in paragraph 79 the trial magistrate specifically mentions that she

'had regard to the awards in previous cases and specifically those cases referred to by the parties'. Counsel's submission that the trial magistrate did not consider the judgments referred to her by the appellant cannot be correct. Besides as was mentioned by the court during the appeal, these judgments are only but guidelines which were not binding on the trial magistrate.

[11] I am, as such, inclined to conclude that the trial magistrate did not in any way misdirect herself when she awarded the respondent an amount of R80 000 as damages for his unlawful arrest and detention. The award is fair and appropriate in the factual situation of this matter and it reflects the importance of the right of personal liberty of members of the society and the seriousness with which an arbitrary deprivation of personal liberty should be viewed by our courts.

THE CROSS APPEAL

[12] Brevitatis causa, I shall hereunder refer to the appellant in the cross appeal as the respondent and the respondent in the cross appeal as the appellant.

[13] The respondent's unopposed cross appeal is based upon the following grounds of law:

"The learned magistrate erred and misdirected herself in finding that the defendant be ordered to pay interest on the capital at 10.25% per annum as opposed to the prescribed legal rate of issue of summons of 15 .50%".

[14] The respondent in his heads of argument states that during the trial the summons was amended to reflect that interest be claimed as from the date of demand and not as from the date of judgment. The date of the letter of demand to the appellant was 23 November 2012. When judgment was granted at the trial the trial magistrate ordered the appellant to pay interest at the rate of 10.25% per annum from date of demand.

[15] It is not in dispute that at the time of demand the rate of interest was 15 .50%. This is the rate of interest that the trial magistrate should have ordered the appellant to pay. Having not done so the trial magistrate misdirected herself. Her order that the appellant pay interest at 10 .25% per annum instead of 15 .50% per annum should be set aside and be replaced with a correct order.

ORDER

[16] In the circumstances the following order is made:

1. The appellant's appeal is dismissed with costs.

2. The respondent's cross appeal is upheld with costs.

3. The appellant is to pay the respondent an amount of R80 000 (Eight y Thousand Rand) in damages for unlawful arrest and detention.

4. The said capital amount to bear interest at the rate of 15 .50% per annum from date of demand being 23 November 2012 to date of payment.

E.M.KUBUSHI

JUDGE OF THE HIGH COURT

I concur and it is so ordered

S.N.I. MOKOSE

ACTING JUDGE OF THE HIGHCOURT

APPEARANCES

APPELLANT' S COUNSEL

: ADV. MC MAVUNDA

APPELANT'S ATTORNEYS

: THE STATE ATTORNEY PRETORIA

RESPONDENTS' LEGAL REPRESENTATIVE : MR LARRY MARKS

RESPONDENTS' ATTORNEYS

: LARRY MARKS ATTORNEYS

HEARD ON THE

: 08 JUNE 2018

DATE OF JUDGMENT

: 19 JUNE 2018

[1] 2009 (4) All SA 38 (SCA).

[2] (148/2011) 2011ZAPGJPHC 140.