Mokuke v Minister of Safety and Security and Another (833/06) [2007] ZANWHC 38 (10 August 2007)

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CASE NO.: 833/06

In the matter between:

ANDREW GOITSEMODIMO MOKUKE PLAINTIFF

and

MINISTER OF SAFETY AND SECURITY FIRST DEFENDANT

CLEMENT THABANG MOJI SECOND DEFENDANT

JUDGMENT

LANDMAN J:

[1] Mr Andrew Goitsemodimo Mokuke, the plaintiff, who works as a barman at the “Kospot” tavern in Delareyville was arrested by Reservist Constable C T Moji (the second defendant), without a warrant, for the alleged unlawful possession of a firearm. He was detained in custody, after a court appearance on 27 September 2005, until he was released on 3 October 2005 when the case against him was withdrawn in the local Magistrate’s Court.

[2] The plaintiff alleges that he was assaulted by other inmates while he was in custody. He claims damages for his alleged unlawful arrest and detention and damages on account of the assaults on him by inmates. He alleges the employees of the Minister of Safety and Security (first defendant) should have prevented. The plaintiff claims R300 000.00 for his alleged unlawful arrest and R50 000.00 for general damages suffered as a result of the assault.

[3] The defendants plead that the arrest and detention was not unlawful. The defendants allege that the plaintiff was arrested without a warrant on a reasonable suspicion of committing an offence under the Firearms Control Act 60 of 2000 (unlawful possession of a firearm). An allegation that the plaintiff was arrested on suspicion of having committed robbery was withdrawn. It is alleged that the arrest was authorised by s 41 of the Criminal Procedure Act 51 of 1977. It is also alleged that the plaintiff’s detention from 27 September 2005 was authorized on the basis of a warrant of detention issued by the Delareyville Magistrate’s Court. The defendants also deny that the plaintiff was assaulted and injured during the course of his detention.

The alleged firearm

[4.1] The alleged firearm which, I shall call the object, was handed in as an exhibit in the course of the trial. It is common cause that the object is not a firearm as contemplated in the Firearms Control Act and therefore no license is needed to possess it. The object resembles a pistol. It is black and is made of steel which is covered with plastic and has other plastic parts. The object is in fact a hand held single shot air or pellet gun.

[4.2] The object does not contain a magazine although it looks like it has one. But the magazine is a sham and it does not open. The object, at the time that it was confiscated, was incapable of firing a pellet as parts were missing. At the time of the plaintiff’s arrest he was not in possession of any pellets or ammunition.

[4.3] The object bears the inscription BARNETT NITRO .177 45 (4.5mm) .177 cal “MADE IN ENGLAND”. The air pistol is of a calibre less than 5.6mm (.22 calibre) and functions by means of compressed air and not by means of a burning propellant.

[4.4] The rear locking device on the barrel is missing and because of this it will not be able to propel a pellet through the barrel.

[4.5] The object does not have the same weight or mass or dimensions as does modern semi-automatic pistols for example: a Z88 or a Glock semi-automatic pistol. The difference in weight or mass of a .22 pistol (firearm), 9 mm pistol and the object is easily established by merely weighing it by hand.

[4.6] The difference in size of the diameter of the barrel opening of the object, when compared to the diameter of the barrel opening of a .22 pistol (firearm) and a 9 mm pistol, is clearly visible with the naked eye.

[4.7] The object has no feeding mechanism or sliding mechanism, as is the case with the majority of pistols.

[4.8] The object does not have a hammer or any other mechanism being activated or released by pulling a trigger that strikes a firing pin.

[4.9] The inside of the barrel of the object contains no ballistic grooves.

[4.10] The object has no serial number, neither has any previous serial number been removed or erased.

[4.11] The object was returned to the plaintiff after his release from custody on 3 October 2005.

The plaintiff’s case

[5] The plaintiff called five witnesses. The plaintiff testified first. He said that he was unlawfully arrested by members of the first defendant. He further said that members of the first defendant accused him of possessing a firearm without a license. He was taken to the police station where he was incarcerated.

[6] The plaintiff told the court that at the time of the arrest and at the police station he informed Constable Moji and the members of the first defendant that the object he had in his possession was not a real firearm. He appeared for the first time before a Magistrate on 26 September 2005. The matter was postponed until 3 October 2007 and he was remanded in custody. Inspector Ramuzuli examined the object on 25 September. He fired it and noticed that the barrel moved forward. He told Inspector Ramuzuli that the object was a toy.

[7] Between his first appearance on 26 September 2005 and 3 October 2005, he was assaulted from Wednesday, 28 September 2005 for four consecutive days. When he appeared on 3 October 2005 the case was withdrawn by the Public Prosecutor. The injuries he sustained healed after about three months.

[8] The second witness for the plaintiff was a Mr Van Eeden, a firearm shop owner. Mr Van Eeden says he is an expert on firearms. He inspected the object and compared it with real firearms in his shop. He concluded that a perfunctory examination would lead anyone examining it to conclude that the object is not a firearm.

[9] The third witness for the plaintiff was a Dr Khan. Dr Khan said that she examined the plaintiff on 3 October 2005 at her surgery in Delareyville. She diagnosed injuries, inter alia, bruises all over the body; mainly over both upper arms and both buttocks and a swelling on the left eye due to soft tissue injury. Normally it takes three to six weeks for injuries similar to the ones sustained by the plaintiff to be completely healed. She said that she was told by the plaintiff that he was assaulted by his cellmates.

[10] The fourth witness was the control prosecutor, at that time, at Delareyville Magistrate’s Court, Mrs Helena Lotriet. She prosecuted on 26 September 2005. The case of the plaintiff appeared before the court. The plaintiff’s case was postponed until 3 October 2005 for further police investigations and he was remanded in custody. Mrs Lotriet instructed the investigating officer, Inspector Kalela, to verify the plaintiff’s address and the nature of the object.

[11] On 3 October 2005 the plaintiff appeared again in her court. The plaintiff had injuries on his face. Inspector Kalela was not present and had not complied with Mrs Lotriet’s instructions. She said that she asked one of the police officers, Inspector Herbst, to inspect the object in question and inform her whether it was a real fire-arm or not. Inspector Herbst returned with a statement that the object was not a real firearm. As a result she withdrew the case against the plaintiff.

[12] The fifth and last witness for the plaintiff was Inspector Herbst. He is stationed at the Delareyville Police Station. The second defendant is his colleague at that station. On 3 October 2005 he was requested by the public prosecutor, Mrs Lotriet, to go to the Police Station and check whether the object, the plaintiff allegedly possessed, was a real firearm or not. He proceeded to the Police Station and retrieved the firearm. Merely by looking at the object he realised that it was not a real firearm. He went back to Mrs Lotriet and gave her a statement to that effect.

[13] Inspector Herbst said he has received training, inter alia, to dismantle and handle firearms. He said that the first thing to do after retrieving a firearm is to make it safe. He has done certain courses which some of his colleagues have not done. Police reservists are trained in the use of Z88 pistols. According to him the Z88 is the most commonly used firearm in the South African Police Service. The South African Police Service does not make use of the Glock pistols. The special task team does.

[14] Inspector Herbst proceeded to explained why he said one would immediately realise that the object was not a real firearm. He also said the second defendant was supposed to have telephoned a more senior police officer or somebody who was more knowledgeable than him about that pistol.

[15] A maximum of five awaiting trial prisoners were held in each cell at the Delareyville Police Station.

[16] Inspector Herbst further said that sometime prior to the date of setdown of this matter Constable Moji approached him. Constable Moji handed over a letter to him and told him that he, Constable Moji, was in trouble. Constable Moji told him, that at the time he arrested the plaintiff, he told his colleague, Sergeant Makgetla, that the object was not a firearm. Despite this Sergeant Makgetla instructed him to arrest the plaintiff.

The defendant’s case

[17] The defendants called four witnesses. Their first witness was the second defendant, Reservist Constable Thabang Clement Moji. He said that on 25 September 2005 the plaintiff came to the Police Station to lodge a complaint. However, a complaint against the plaintiff had already been lodged before the plaintiff lodged his complaint. He and a colleague, Sergeant Makgetla, proceeded to the Kospot, the scene of the complaint. At the Kospot they found the plaintiff waiting for them. They tried to solve the problem.

Regrettably, the plaintiff was not very co-operative. He just left whilst they were still busy with the complaint. The plaintiff later came back and stood in the doorway.

[18] Constable Moji said that when he looked at the plaintiff he could see that there was something protruding beneath the plaintiff’s clothes. He approached him and asked him what it was. The plaintiff proceeded outside. He said that the plaintiff took out the object which was on his waist and held it, pointing it downwards. Constable Moji said, because of his experience regarding similar matters, he warned the plaintiff not to do anything stupid otherwise “he would see an accident”.

[19] The plaintiff then approached him and handed the object over to him. He requested the plaintiff to accompany him to the Police Station. He said at the Police Station he told the plaintiff that he was arresting him for unlawfully possessing a firearm. The plaintiff did not at any stage tell him that the object was not a real firearm.

[20] Constable Moji said that the object resembled a firearm and he had a suspicion that the plaintiff had committed an offence. At the charge office Sergeant Ramuzuli merely took the object inspected it and returned it.

[21] Constable Moji said that Inspector Herbst was lying when he said that Constable Moji told him that he had told Sergeant Makgetla that that object was not a real firearm.

[22] The second witness for the defendants was Reservist Constable Mojahi. Constable Mojahi joined the police service in Delareyville in March 2005. During September/October 2005 he worked at the Delareyville Magistrate’s Court as a court orderly. He knew the plaintiff and saw him between 29 September and 3 October 2005. He took him to court on 3 October 2005. He saw him before 08:30 at the police cells. The plaintiff looked normal.

[23] Constable Mojahi further said that he escorted the plaintiff from court to the Police Station on 3 October 2005. If there was anything wrong with the plaintiff he would have asked him about it. He said, under cross-examination, that had the plaintiff had injuries he would not have signed for him. He further said that the plaintiff had not complained about an assault on him.

[24] Inspector Ramazuli is a member of the South African Police Service stationed at Delareyville Police Station. On 25 October 2005 he was on duty at the Police Station. Whilst there, Constable Moji arrived and told him he had found somebody with a firearm at a shebeen. He said he saw the object but he did not do anything with it. According to him it was a firearm. Inspector Ramuzuli denied the plaintiff’s allegations that he, Inspector Ramuzuli, pulled the trigger at the charge office.

[25] Inspector Ramuzuli said that he saw the plaintiff on 3 October 2005 when he was taken to court. The plaintiff was healthy. His face was fine. When he came back from court the plaintiff was still healthy with no injuries. He released the plaintiff.

[26] The parties agreed that the content of notices in terms of Rule 36(9)(a) and (b) regarding Captain Johannes van Rooyen, a ballistic expert from the national office of SAPS, be admitted as evidence.

[27] Captain Van Rooyen has an extensive knowledge and experience in the ballistic field. In his summary Captain Van Rooyen said that on 7 May 2007 he inspected an air pistol with the inscription Barnett Nitro .177 45 (4.5mm) .177 calibre and made the following findings:

27.1 The air pistol is not a firearm as stipulated in the Firearms Control Act.

27.3 The rear locking device on the barrel is missing and because of this it cannot propel a pellet through the barrel during the firing process.

27.4 Air pistols do not have the same weight and/or dimensions as modern semi automatic pistols (firearms) for example Glock semi automatic pistols.

[28] According to him a national instruction dated January 2001 by the National Commissioner of the South African Police Service, re forensic 42/2/1 SAPS, provides that only forensic ballistic officials are allowed to perform examinations on firearms/objects resembling firearms in crime investigations and issue a statement whether the object in question conforms to the description of a firearm in terms of the Firearms Control Act.

[29] The right of an individual to personal freedom is a right which has always been jealously guarded by our courts. Our law has always regarded deprivation of personal liberty as a serious injury. The unlawful arrest and detention of a person amounts to a serious invasion of this right. See Osche v King William’s Town Municipality 1990 (2) SA (E) at 860 F-G.

[30] An arrest or detention of any person is prima facie an infringement of his or her right not to suffer restraint upon his or her freedom of movement, and such restraint is prima facie a delictual wrong which calls for justification if it is to be permitted in law. See Rose Innes J in Sigaba v Minister of Defence and Police and Another 1980 (3) SA (TkSC) at 538G.

[31] The onus of justifying an arrest and detention rests upon the arresting officer (and his employer). Rose Innes J in Sigaba v Minister of Defence and Police and Another at 554H – 555A correctly summarize the law in the following way:

“In a civil case where the respondent justifies an arrest and detention by pointing to a statutory provision which he avers empowered him to effect the arrest and detention, the onus of establishing that the arrest and detention fell within the ambit of the authorising section of the statute is upon the respondent who relies upon such statutory authority. Brand v Minister of Justice and Another 1959 (4) SA 712 (A) at 714, approving R v Henkins 1954 (3) SA 560 (C); Rousseau v Boshoff 1945 CPD 135 at 137; R v Folkus 1954 (3) SA 442 (SWA) at 445-6, and applying Union Government v Bolstridge 1929 AD 240 at 244 and Tsose v Minister of Justice and Others 1962 (1) SA 375 (N) and at 545B:

“The onus of proving lawful authority for an arrest is upon him who claims to have had it. R v Britz 1949 (3) SA 293 (A) at 304; R v Van Heerden 1958 (3) SA 150 (T) at 152C; S v Purcell-Gilpin (supra at 550E-G, 553A, 553G).”

[32] The onus must be discharged in the ordinary way on a balance of probabilities.

[33] The defendants are not assisted by the presumption omnia praesumunturrite esse acta. See S v Mcunu 1962 (1) SA 375 (N) at 376H and Sigaba v Minister of Defence and Police and Another at 545B.

[34] Section 40 (1)(b) of the Criminal Procedure Act 51 of 1977 reads as follows:

‘A peace officer may without warrant arrest any person –

(a) . . .

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1 other than the offence of escaping from lawful custody.’

[35] Van Heerden JA in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) considered the requirements for an arrest in terms of s 40(1)(b) of the Criminal Procedure Act. He said:

“The so-called jurisdictional facts which must exist before the power conferred by s 40(1)(b) of the present Act may be invoked, are as follows:

(1) The arrestor must be a peace officer.

(2) He must entertain a suspicion.

(3) It must be a suspicion that the arrestee committed an offence referred to in Schedule 1 to the Act (other than one particular offence).

(4) That suspicion must rest on reasonable grounds.

If the jurisdictional requirements are satisfied, the peace officer may invoke the power conferred by the subsection, i.e, he may arrest the suspect.”

See also Bentley and another v McPherson 1999 (3) SA 854 (E) at 860A.

[36] Lord Devlin in Shaaban Bin Hussein and Others v Chong Fook Kam and Another [1969] 3 All ER 1626 (PC) at 1630 said:

‘Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; “I suspect but cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.’

This passage was quoted with approval in Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 819I; Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 50H and Nkambule v Minister of Law and Order 1993 (1) SA 848 (T) at 849F.

[37] The suspicion must not be a wild one but be one which has a reasonable basis. See Jones AJP in Rosseau v Boshoff 1945 (CPD) 135 at 137.

Evaluation

[38] What would a reasonable person in the shoes of the arresting officer, Constable Moji, do in the circumstances of this case? I am of the view that:

(a) He would be aware of his duty to prevent crime.

(b) He would have the impression that the object resembles a firearm.

(c) He would be aware that an arrest is a drastic infringement of an accused’s constitutional right to liberty and that an arrest should be avoided if possible.

(d) He would be aware that the plaintiff was employed at the tavern.

(e) He would have a basic idea of the Firearm Control Act and know –

(i) that a firearm may only be lawfully possessed if the owner is the holder of a valid license.

(ii) that a “firearm” does not include every weapon.

[39] With this in mind the reasonable police officer who finds an object resembling a firearm would examine it. His or her cursory examination of the object would show that:

(a) the magazine was an integrated part of the object and could not be removed nor opened;

(b) it had a calibre number inserted on the object namely .177;

(c) it had no hammer;

(d) it had no slide;

(e) it had no ejection port;

(f) one can see through barrel; and

(g) it had no serial number or evidence of the erasure of a number.

[40] He would also take into account the context namely:

(a) there was no complaint of a crime;

(b) no threat was made by the accused;

(c) the plaintiff did not run away;

(d) the plaintiff was employed at the tavern; and

(e) the plaintiff was not in possession of pellets or ammunition.

[41] Mr Senatle submitted that it is evident from Captain Van Rooyen’s statement that it is impossible for an ordinary police officer by merely looking at the air pistol to say whether it is a real firearm or not. He submitted that this opinion has not been contested or challenged. Since it was not possible for Constable Moji to say as to whether that was a real firearm or not by merely looking at it, it was his evidence that he intended forwarding the object to the ballistic experts. In the meantime the law allowed him to detain the plaintiff.

[42] Mr Senatle relies upon an inference which he seeks to draw from Captain Van Rooyen’s statement. However Mr Van Eeden and Inspector Herbst gave direct testimony that a cursory examination of the object would lead one to conclude that it is not a firearm as defined. I accept their evidence. Nevertheless this case need not be decided upon this point alone.

[43] Constable Moji should have taken advice especially regarding the calibre of the weapon as this would decisively determine the issue.

[44] Constable Moji did nothing of the sort. He said he had a suspicion that it was a firearm. But in fact he was convinced that it was a firearm. So much was his conviction that he remained convinced of this even though two experts (one from the Ballistic Department of the Forensic Laboratory) say that the object is not a firearm as defined. There was no question of holding the plaintiff for further investigation. Moreover if any investigation was done, no details have been supplied. The investigating officer, Inspector Kulela, was not called to give evidence.

[45] I accept Inspector Herbst’s evidence and prefer it to that of Constable Moji. It is clear that Constable Moji met Inspector Herbst shortly before the hearing. There was no reason why Inspector Herbst should fabricate the conversation. There is reason for Constable Moji to be concerned. The incident had come to the attention of his superiors. He had reason to feel he might be in trouble. He has no employment other than that of being a reservist constable. As a reservist constable he was under the orders of Sergeant Makgetla.

[46] Sergeant Makgetla was not called as a witness. His statement, which was made under oath, was put to Constable Moji. This statement is hearsay but it is admissible subject to the usual safeguards. He says that they received information that the plaintiff was in unlawful possession of a firearm. This being the case one would expect him and Constable Moji to have interrogated the informant. However, we are not told who the informant was and why the informant says that the object was a firearm and why his possession of the alleged firearm was unlawful. Sergeant Makgetlha in his statement says that Constable Moji searched the plaintiff and found a firearm which he showed to the sergeant and the plaintiff was immediately arrested. This part of the statement, though not terribly clear, tends to support Inspector Herbst’s testimony that Constable Moji said he acted under the instructions of Sergeant Mokgetla. It also places the arrest outside the tavern and not at the charge office.

[47] The charge office commander, Inspector Ramazali, Constable Moji’s superior, also examined the object. He was of the opinion that it was a firearm. He too remains convinced that it is a firearm even in the face of the opinion of the two experts and common cause facts. He is wrong.

[48] I do not accept the veracity of Inspector Ramuzuli’s evidence on the issue of the plaintiff’s injuries. I will explain why later. I distrust his evidence on the events which took place in the charge office. It is highly improbable that the plaintiff, who had the complete answer to the charge, would not have told Constable Moji on his arrest or later Inspector Ramuzuli that the object was not a firearm and that he did not need a license for it.

[49] According to Constable Moji he asked the plaintiff whether he had a license for the firearm. However, he first testified about this after having stated very explicitly what took place at the time of the arrest. When it was put to him that he did not even ask whether the plaintiff had a license to posses the object, he suddenly remembered that he had asked this of the plaintiff. Accepting for a moment that this is true, it constituted the perfect opportunity for the plaintiff to say: “No, this is not a firearm. I don’t need a license to possess it.” But Constable Moji says the plaintiff said nothing. I do not believe him. I accept the plaintiff’s version of events. But his evidence regarding the time his injuries took to heal is doubtful.

[50] I find that Constable Moji did not arrest the plaintiff on a reasonable suspicion of being in possession of a firearm. Constable Moji was either completely satisfied about the object was a firearm or he arrested the plaintiff on the basis on an instruction from Sergeant Mokgetla. It follows then that he did not act in terms of s 40 of the Criminal Procedure Act. His conduct must be judged on the basis of his belief that the object was a firearm. He was wrong and the arrest was therefore wrongful.

[51] If I am wrong and Constable Moji did not have a closed mind, he took no reasonable steps prior to the arrest to confirm his suspicion. I have dealt with all the indications which go to show that the object is not a firearm. Constable Moji did not make any inquiries. He did not consider whether there was an alternative to arresting the plaintiff.

[52] Much was made of the circular which is, as far as relevant to this matter, requires the Ballistic Department to give evidence on whether an object is a firearm as defined. The circular does not prohibit another police official from deciding, when justified, that the object is clearly not a firearm.

[53] It was agreed at a pre-trial conference that the employees of the first defendant owed a duty of care to protect the plaintiff from bodily harm and injury.

[54] The plaintiff was in the custody of employees of the first defendant since his arrest up to the time of his release from custody on 3 October. He was confined in a cell with other detainees. He says he was assaulted by them. He explains why he could not complain about these assaults when the cells were inspected. His assailants warned him that they would take revenge if he did so. His injuries were observed by Mrs Lotriet, Inspector Herbst and by Dr Kahn. These witnesses have no connection with the parties to this matter. Mrs Lotriet is an officer of the court. A photograph of the plaintiff was taken by his attorney on 3 October and handed in as an exhibit.

[55] As against this we have the evidence of Constable Moji, Inspector Ramazuli and Constable Mojahi as well as an entry in the occurrence book. The defendants offered no explanation as to how and when the plaintiff received his injuries. The entries in the occurrence book, as far as the plaintiff is concerned, are sometimes false. It seems that the entries are entered to reflect what an inspector of the book would like to see. The book does not, as far as the plaintiff is concerned, reflect the reality of the situation at the station.

[56] I am satisfied that the plaintiff was assaulted by detainees in the cell in which he was incarcerated.

[57] Did the employees of the first defendant take reasonable care to protect the plaintiff from harm?

[58] The detainees were visited hourly. But I must point out that, according to the evidence of Inspector Herbst which I accept, there have been previous cases of detainees in the Delareyville police cells being assaulted by other detainees as well as cases of what today is termed indecent assault. The cells are in a separate building away from the Police offices. There is no officer on duty at the cells. The cells are inspected every hour. Detainees are asked whether they have any complaints.

[59] Of course the police know or must know of the extent of intimidation. It does not seem as if any positive measures have been developed to deal with this.

[60] However, assuming that the measures outlined above are reasonable measures (which in the light of Inspector Herbst’s evidence they are not) then the question rises why were the injuries to the plaintiff’s face not seen during the first inspection on 3 October and for that matter at any time up and until his discharge? No explanation was proffered. It is reasonable to conclude then that these measures were either improperly or careless executed or that they are inadequate. In the result I find that the employees of the first respondent are responsible for their failure to protect the plaintiff from harm and that the first defendant is liable for damages suffered by the plaintiff.

Damages

Damages for wrongful arrest

[61] In determining compensation I take into account the following:

(a) The plaintiff was arrested outside his place of employment;

(b) There was no other publicity given to his arrest;

(c) The plaintiff was detained for 8 days in police cells;

(d) The cells were slightly overcrowded;

(e) The food was adequate;

(f) The plaintiff did not complain about the bedding;

(g) There has been no apology;

(h) The plaintiff is an ordinary citizen;

(i) The plaintiff does not have a public profile;

(j) The plaintiff earns R40 per day; and

(k) The plaintiff, by carry an air gun resembling a firearm, invited attention.

[62] As far as the period of detention is concerned, Mr Senatle submitted with reference to Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A) at 323f-j that the detention of the plaintiff ceased to be unlawful when the court ordered his further detention. However it is distinguishable. I think that the decision in Mthimkhulu and Another v Minister of Law and Order 1993 (3) SA 432 (E) reflects the correct approach which should be adopted when the plaintiff relies on wrongful arrest and detention. Nepgen J said at 438C:

“In any event, I do not see how the mere fact that the further detention of the plaintiffs occured (sic) pursuant to an order made by the magistrate in terms of s 50(1) of Act 51 of 1977 can render such detention lawful, where the arrest, which resulted in such detention being ordered, was unlawful.”

[63] I do not take into account the circumstances of the assault in determining the quantum of damages for wrongful arrest and detention.

[64] I have considered the circumstances set out in the precedents referred to by counsel. In Minister of Safety and Security v Seymore 2006 (6) SA 320 (SCA) R90 000 was awarded, following an appeal, to a 63 year old male, fairly well known in the community. He spent a day in the cells and 4 days in hospital while in custody. The plaintiff works in Delareyville. It is a small community. He was detained for 8 days but he courted attention by carrying the object the way he did. It seems to me that an amount of R120 000 will adequately compensate the plaintiff.

Damages for harm in custody

[65] In calculating the damages for the assault I take the following into account:

(a) The manner of assault – takkies dipped in toilet water;

(b) Plaintiff suffered bruises and injuries to his body and eye;

(c) The injuries took three to six weeks to heal;

(d) The injuries caused pain and discomfort;

(e) The police’s denial that the plaintiff was injured while under their protection was false; and

(f) The police’s refusal to allow the plaintiff’s family to visit him. Had the visits been allowed some early redress may have been possible; and

(g) The plaintiff was unable to defend himself.

[66] Mr Hitge submits that R50 000 should be award for the failure of the police to protect the plaintiff. He submits that should some accommodation be made for the possibility that the police would have intervened had the plaintiff had the courage to complain then an amount of R45 000 would be appropriate.

[67] The circumstances in Manamela v Minister of Justice and others 1960 (2) SA 395 (A) upon which Mr Hitge, inter alia, relies, suggests that R50 000 would be too high for an assault. But here we are not only faced with a single assault. The injuries are not severe but the plaintiff was humiliated. I am of the opinion that R45 000 would adequately compensate the plaintiff.

Costs

[68] Mr Hitge has submitted that I order costs on the High Court scale and/or make a special order of costs against the defendants on account of:

(a) the fact that the trial was prolonged by the necessity to prove the plaintiff’s injuries. Mrs Lotriet’s testimony was only challenged to the extent that she was asked why she did not ask the presiding magistrate to note the injuries;

(b) the challenge to Mr Van Eeden’s qualifications as an expert even though his testimony was not disputed. Indeed his testimony is very similar to that of the admitted evidence of Captain Van Rooyen; and

(c) by giving a false or incorrect answer in the defendants Rule 37(4) answer that the object was only examined on 3 October because Inspector Herbst was only available on that date.

[69] I am satisfied that the circumstances of this case warrant that costs be awarded against the defendants on the High Court scale.

Order

[70] In the premises, I grant the following order:

1. The first and second defendants are ordered to pay damages to the plaintiff for his wrongful arrest and detention in the amount of R120 000 jointly and severally, the one paying, the other to be absolved.

2. The first defendant is ordered to pay damages to the plaintiff for failing to protect him while in custody in the amount of R45 000.

3. Interest on the amounts set out above is to run at the prescribed rate from the date of judgment until the date of payment.

4. The first and second defendants are ordered to pay two thirds of the plaintiff’s costs jointly and severally, the one paying, the other to be absolved.

5. The first defendant is to pay the remaining costs.

_______________

A A LANDMAN

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel for Plaintiff: Adv M Hitge

Counsel for the First and Second Defendants: Adv Senatle

Attorneys for the Plaintiff: Chris Maritz Attorney

Attorneys for the First and Second Defendants: The State Attorney

Date of Hearing : 14 to 16 May 2007

Written Heads Submitted On : 15 June 2007

Date of Judgment : 10 August 2007