Motsose v Minister of Police and Another (814/2016) [2024] ZANWHC 267 (11 October 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

CASE NO: 814/2016

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates

Circulate to Regional Magistrates : NO

In the matter between:

FREDDY MAKGARITHLA MOTSOSE PLAINTIFF and THE MINISTER OF POLICE FIRST DEFENDANT THE NATIONAL PROSECUTING AUTHORITY SECOND DEFENDANT

Neutral Citation: Freddy Makgarithla Motsose v Minister of Police and Another ZANWHC, Case No: 814/2016 (11 October 2024)

Heard: 22 April 2024

Delivered: 11 October 2024

Summary: Trial - general damages - determination of narrow issue - unlawful arrest, detention and malicious prosecution by members of the South African Police Service and the National Prosecuting Authority - pursuant to an appeal before and order of the full court of the Division to remit the matter back to the couIi a qou for determination of quantum for damages suffered as a result of its finding of unlawful arrest, detention and malicious prosecution.

This judgment was handed down by electronic mail circulation to the parties' representatives. The date and time of hand-down are deemed to be 10h00 on Friday, 11 October 2024.

JUDGMENT

MORGAN AJ

INTRODUCTION

[1] Before me is a narrow issue to determine the quantum of damages suffered by Freddy Makgarithla Matsose ("deceased Plaintiff'') for his unlawful arrest, detention, and malicious prosecution by members of the South African Police Service ("SAPS") and the National Prosecuting Authority ("NPA").[1]

[2] The deceased Plaintiff was arrested on 15 March 2013 and remained in custody until his release on 26 February 2015, a total period of 523 (five hundred and twenty-three) days.

[3] The deceased plaintiff was Mr Tshepiso Matsose, who has now been substituted by Mr Freddy Matsose, who was appointed the executor in the deceased estate per the order of this granted on 29 September 2020 in the unopposed motion court. For purposes of logic, I will refer to the original plaintiff as the 'deceased plaintiff' and the substituted plaintiff as the 'plaintiff' insofar as is relevant it.

[4] This matter has been referred back to the court as a quo by the Full Court of this Division, per Petersen J, who adjudicated the appeal to determine the appropriate quantum of damages. The Full Court found the First and Second Defendants liable for the Plaintiff's unlawful arrest, detention, and malicious prosecution,

respectively. The second defendant's liability only relates to the Plaintiff's malicious prosecution claim.

BRIEF OVERVIEW OF THE FACTS

[5] For brevity's sake, I will not regurgitate the facts as eloquently staled in the full court judgment. Moreover, the background and chronology of facts relevant to the Plaintiff's arrest, detention and prosecution are largely common cause. I provide a brief exposition thereof below.

[6] The deceased Plaintiff was arrested and detained on 15 September 2013 by members of the SAPS in Zeerust on allegations of the deceased Plaintiff's involvement in the commission of various crimes, including murder, robbery, and housebreaking, with intent to rob that occurred at a residence in the area.

[7] The deceased Plaintiff was arrested without a warrant on the basis that it was alleged that he owned All-Star sneakers he was alleged to have been wearing on the day of the commission of the crime. The arresting officer, Constable Ncube, claimed these All-Star sneakers matched prints found at the crime scene. Noteworthy is that the deceased Plaintiff was not found on the scene, but the First Defendant's employees followed the shoe footprints, which led them to the deceased Plaintiff and the other accused persons. Upon their arraignment, the deceased Plaintiff was wearing shoes which, to the First Defendant's employees, matched the shoe prints of those that they followed through the trial.

[8] The deceased Plaintiff was detained for 3 (three) days before his first appearance before a Magistrate to apply for bail. He elected not to apply for bail at his first appearance. On his third appearance, he applied for bail, which was denied. He was thus remanded in custody. He remained detained in SAPS custody for 523 (five hundred and twenty-three) days until 26 February 2015, when the charges against him were eventually withdrawn due to lack of evidence by the prosecutor.

[9] The Full Court found that no reliable evidence was produced throughout his detention to justify his arrest or prosecution. The police relied on unsubstantiated claims, including an alleged confession that was not recorded in the docket. The NPA, particularly prosecutor Mr. Bondesio, failed to adequately review the case, relying on an uncommissioned statement from Constable Ncube to initiate and continue the prosecution, resulting in the deceased Plaintiff's prolonged and unjustified incarceration.

[10] In 2016, the deceased Plaintiff instituted a delictual claim against the Defendants for his unlawful arrest, detention, and malicious prosecution. In the trial before Mahlangu AJ, the court found the First Defendant liable only for the first three days of detention and dismissed the claim against the Second Defendant for malicious.

[11] Dissatisfied with the judgment, the plaintiff sought and was granted leave to appeal to the full bench of this Division, the Full Court (per Hendricks JP, Petersen J, and Makaane AJ) set aside the order of the court a quo and found that both Defendants were liable for the deceased Plaintiff's unlawful arrest, detention and malicious prosecution causes of action were linked as the facts upon which the deceased Plaintiff's continued detention post his first appearance and being remanded in custody pursuant to the failure of his bail application intertwined with one another. Further, the liability of the Second Respondent is closely linked to the unlawful arrest of the deceased Plaintiff by Constable Ncube, with causality being a central consideration about the claim

for malicious prosecution.

[12] The full court made the following order:

(i) The appeal in respect of the claim for unlawful arrest, detention, and malicious prosecution is upheld with costs, which costs shall include the costs of one Counsel.

(ii) The order of the court a quo is set aside and replaced with the following order: "(a) The first defendant is liable for the plaintiff's unlawful arrest and detention for the duration of his incarceration from the date of his arrest

on 15 March 2013 until the date of his release on 26 February 2015.

(b) The second defendant is liable for the malicious prosecution of the plaintiff.

(c) The first and second defendants are ordered to pay the costs of action on the merits, jointly and severally, the one paying the other to be absolved."

(iii) The issue of quantum is referred back to the court a quo for determination with due regard to the findings of this Court on appeal.

ISSUES BEFORE THIS COURT

[13] The matter was referred back to the court a quo for the determination of quantum, with due regard to the findings of the Full Court on appeal. However, the Plaintiff contends that the quantum for unlawful arrest and detention against the Minister of Police (R15,000 per day) was not appealed and is therefore res judicata. The Plaintiff argues that only the quantum for malicious prosecution against the National Prosecuting Authority needs to be determined.

[14] The Plaintiff now claims R7,845,000.00 (R15,000 x 523 days) plus interest from the First Defendant for unlawful arrest and detention. For the malicious prosecution claim against the Second Defendant, the Plaintiff suggests an amount of R500,000 (five hundred thousand). The Defendants contest these amounts, arguing for lower damages based on comparable cases and legal principles of fair compensation.

EVIDENCE PRESENTED BY THE PLAINTIFF

[15] The Plaintiff relied primarily on the evidence presented during the trial before Mahlangu AJ, as well as the findings of the Full Court on appeal. No new evidence was presented for the quantum determination.

[16] The Plaintiff's case is built on the following key elements:

a) The unlawful arrest by Constable Ncube on 15 March 2013 was based solely on the fact that the deceased Plaintiff was wearing All-Star sneakers, which the officer claimed matched prints found at a crime scene.

b) The detention for 523 (five hundred and twenty-three) days from 15 March 2013 to 26 February 2015, during which no credible evidence was produced to justify the deceased Plaintiff's continued

incarceration.

c) The malicious prosecution by the Second Defendant, particularly the actions of prosecutor Mr. Bondesio, who initiated and continued the prosecution based on an uncommissioned statement from Constable Ncube, despite the lack of prima facie evidence.

[17] The Plaintiff argues that Mahlangu AJ already determined the quantum for unlawful arrest and detention at R15,000 (fifteen thousand) per day, and that this determination was not appealed by the Defendants. Therefore, the plaintiff contends that this amount, multiplied by the 523 (five hundred and twenty-three) days of detention, should be awarded as res judicata.

[18] For the malicious prosecution claim against the National Prosecuting Authority, the plaintiff suggests an amount of R500,000 (five hundred thousand), arguing that this is reasonable given the circumstances of the case and the conduct of the prosecutors involved.

LEGAL PRINCIPLES AND APPLICATION

[19] The Constitution[2] "enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause.[3] This right is foundational to personal liberty in South Africa's constitutional democracy. As expressed in Thandani v Minister of Law and Order.

"[T]he liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against

infringement."[4]

[20] It is unnecessary to dwell on the law of delict as it applies to unlawful arrest and detention. As noted above, the Full Court on appeal has found both Defendants liable for the entire period of detention, and the National Prosecuting Authority was found liable additionally for malicious prosecution.

[21] The assessment of quantum in cases of unlawful arrest and detention is not aimed at enriching the plaintiff but at providing solatium -a form of redress that compensates the plaintiff for the injury to their dignity, emotional distress, and loss of personal freedom. The quantum awarded should correspond to the nature and severity of the violation, ensuring that the compensation is just and equitable.

[22] When quantifying damages, courts must also consider the significance of the right to personal liberty within the broader context of South Africa's constitutional democracy. The right to personal liberty is sacrosanct and must be guarded with the utmost vigilance. Courts must ensure that any arbitrary deprivation of liberty is met with appropriate remedies that reflect the gravity of such violations.

[23] In Ferdinand v The Minister of Police, the Court provided guidance on the factors to be taken into account when quantifying damages, stating:

"In deprivation of liberty the amount of damages is in the discretion of the Court. Factors which play a role are the circumstances under which the deprivation of liberty took place; the presence of absence of improper motive or malice on the part of the Defendant; 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; the presence or absence of an apology or satisfactory explanation of the events by the Defendant; and awards in previous comparable cases."[5]

[24] However, courts must also exercise caution in determining quantum. As Seegoblin J asseverated:

"While I consider the Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedomarbitrarily or without just cause, as well as the founding value of freedom, in my view, courts should be careful not to overemphasise the right in order to punish a guilty party unduly. A delicate balance must be struck between the rights of an aggrieved party on the one hand and the guilty party on the other, in order to arrive at an assessment which is fair and reasonable in the circumstances."[6]

[25] Courts must strike a balance between compensating the aggrieved party adequately and ensuring that damages awards are fair and reasonable,

taking into account the facts of each case and the applicable legal principles. As noted in Minister of Safety and Security v Seymour, [7] courts should be mindful that there are many legitimate calls upon the public purse, and awards should reflect this reality while still providing fair compensation.

[26] In cases where both unlawful arrest/detention and malicious prosecution are claimed, courts typically award a composite amount rather than separate amounts for each claim. This approach, as noted in Thu/agano Edward Mokomele v the Minister of Police[8] allows for a holistic view of the damages suffered by the plaintiff as a result of the defendant's actions.

[27] The principle of res judicata may apply to quantum determinations that have not been appealed. However, as noted in the plaintiff's argument, the application of this principle to partial judgments in ongoing cases is a matter of legal interpretation that the court must carefully consider.

APPLICATION

[28] The determination of appropriate damages for the plaintiff's unlawful arrest, detention, and malicious prosecution must be made in light of the constitutional right to freedom and security of the person, as enshrined in our Constitution and demonstrated in Thandani v Minister of Law and Order.

[29] The plaintiffs detention for 523 days, from 15 March 2013 to 26 February 2015, represents a severe infringement of his constitutional rights. The Full Court's judgment confirms that both defendants caused harm to the plaintiff, satisfying all requirements for a claim under the actio iniuriarum.

[30] The principle of res judicata, raised by the Plaintiff, would bind this court to Mahlangu AJ's determination that R15,000 per day was a fair and just amount to award the plaintiff in the circumstances. This is on the basis that the quantum for unlawful arrest and detention against the Minister of Police was not appealed.

[31] However, the Defendants' argument that the Full Court's referral of the quantum issue back to this court applies to both claims also carries weight. This presents a legal conundrum that must be carefully considered in light of the principles of justice and fairness.

[32] This court, in my view, cannot take a holistic view of the damages suffered by the Plaintiff as a result of the defendants' actions if it is bound by the trial court's assessment of the value of each day's detention. I agree that the Full Court's referral of the quantum issue back to this court must, of necessity, apply to both claims.

[33] In assessing quantum, we must heed the guidance provided in Ferdinand v The Minister of Police, considering factors such as the circumstances of the deprivation of liberty, the presence or absence of malice or improper motive, and the status and standing of the Plaintiff. The Plaintiffs experience was undoubtedly traumatic, involving a prolonged detention based on unsubstantiated claims and a prosecution initialed without prima facie evidence.

[34] The conduct of the police and the National Prosecuting Authority, particularly prosecutor Mr. Bondesio, falls short of the standards

expected of these institutions. Their actions resulted in a gross violation of the plaintiff's rights, causing significant emotional

distress and reputational harm. This aligns with the factors considered in Motladile v Minister of Police,[9] which emphasise that quantum determination is not a mechanical exercise based solely on the duration of detention.

[35] However, we must also consider the caution expressed in Minister of Safety and Security v Seymour, that there are many legitimate calls upon the public purse. While the plaintiff's suffering must be adequately compensated, the award should not be so excessive as to unduly burden public resources.

[36] Regarding malicious prosecution, the Full Court's finding of liability against the National Prosecuting Authority is significant. The prosecution's initiation and continuation without reasonable and probable cause, as evidenced by the reliance on an uncommissioned statement and lack of prima facie evidence, justifies a substantial award.

[37] The deceased Plaintiff in this matter indeed suffered harm as a result of the unlawful arrest, prolonged detention, and malicious prosecution. While physical injuries were not at the forefront, the emotional and psychological toll of spending 523 (five hundred and twenty-three) days in detention without justification cannot be understated. The Plaintiff endured humiliation, deprivation of liberty, and the trauma associated with facing criminal charges that were later found to be baseless.

[38] The Plaintiff asserts that the conduct of the police and the prosecuting authority led to a gross miscarriage of justice. The fact that the Plaintiff was detained for such an extended period due to the unlawful actions of both defendants amplifies the severity of the wrongs committed against him. The damage caused by this prolonged detention has far-reaching consequences, affecting not only the Plaintiff's personal life but also his standing in society and his future prospects.

[39] It is important to recognise that incidents like this one erode public trust in law enforcement and the justice system. The failure of the prosecuting authority to discontinue the case, despite the absence of credible evidence, further compounds the harm suffered by the plaintiff. This case highlights the need for accountability within the institutions tasked with upholding justice, as failure to act properly can have devastating effects on individuals' lives.

[40] In similar cases, courts have consistently held that the deprivation of liberty is a serious infringement on a person's rights. The emotional distress and reputational harm caused by wrongful detention and malicious prosecution justify significant compensation, but the award must also be fair and balanced. The principles of law require that the quantum of damages reflects the actual harm suffered while avoiding excessive awards that place an undue burden on the public purse.

[41] As stated above, this court is not bound by the principle of res judicata to apply the per diem quantum determined by the trial court in respect of a delict lasting three days. Nevertheless, given the totality of issues this court must take into consideration in quantifying harm for unlawful arrest and malicious prosecution, the amount of R15,000 (fifteen thousand) per day for the full period of detention is, at the discretion of the court, fair and appropriate. The court should resist the inclination to place a lower value on each day of a defendant's life lost to unlawful action the longer that unlawful action endures.

[42] While there has been a trend in this Division of awarding the plaintiffs who have been unlawfully arrested and detained R15,000 per day of their detention,[10] this is incorrect.[11] Damages are to be determined on a case-by-case.[12] As the Supreme Court of Appeal has recently noted:

"The assessment of the amount of damages to award a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff had spent in detention. Significantly, the duration of the detention is not the only factor that a court must consider in determining what would be fair and reasonable compensation to award. Other factors that a court must take into account would include (a) the circumstances under which the arrest and detention occurred; (b) the presence or absence of improper motive or malice on the part of the defendant; (c) the conduct of the defendant; (d) the nature of the deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of an apology or satisfactory explanation of the events by the defendant; (g) awards in comparable cases; (h) publicity given to the arrest; (i) the simultaneous invasion of other personality and constitutional rights; and U) the contributory action or inaction of the plaintiff."[13]

[43] In Tyu/u v Minister of Police, the Supreme Court of Appeal stated:

"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."[14]

[45] In the case of Spannenberg, Hendricks DJP firmly rejected the prevailing trend in the North West Division, where courts had been awarding a standard amount of R15,000 per day for unlawful arrest and detention. There is a widespread but erroneous belief that a daily amount of R15,000 has been set as a standard for compensating unlawful arrest and detention. This assumption is both incorrect and misleading. Each case must be judged based on its specific facts and circumstances, and this cannot be emphasised enough. There is no universal figure or fixed approach that should be applied across all cases. Adopting such a practice would severely undermine the discretion afforded to the judiciary.[15]

[47] The onus to convince the court of a just and fair quantum rests on the Plaintiff. The circumstances are to be taken into account holistically.

[48] In the absence of any evidence before me suggesting that the deceased plaintiff was assaulted and suffered severe psychological harm or trauma other than that associated with a deprivation of liberty, the amount of R15,000 (fifteen thousand rands) per day, as determined, is without proper justification. More so, the plaintiff has not placed evidence relating to the deceased plaintiff's qualification, the highest level of education, opportunities to generate an income missed while incarcerated, dependants who may have suffered financial prejudice. In contrast, he was incarcerated and any other factors which would have justified the amount sought. In my view, R15,000 as the determined rate for his pain and suffering associated with the deprivation of his liberty without averring the above might just be too excessive.

[49] For the above reasons and on the conspectus of the evidence before me, I deem in the apposite and in the interests of justice to reduce the amount to R7,500.00 (seven thousand five hundred rands) daily. It would seem that in the absence of any torture and police brutality committed against the deceased Plaintiff, it is unfair to expect the defendants to be liable for such a rate. Moreover, it has not been pleaded or proved that the deceased plaintiff's death was caused as a result of his unlawful arrest, detention and subsequent malicious prosecution. Had the Plaintiff tendered such evidence in its pleadings or trial bundle of such evidence, maybe this court would have been of a different view. I find the omission in averring such critical evidence compelling to warrant a reduction in the amount sought per day by the plaintiff.

[50] In the premises, I make the following order:

1. The first defendant is ordered to pay the plaintiff the sum of R3,922,500.00 (three million, nine hundred and twenty-two thousand five hundred) as a composite sum for his unlawful arrest and detention for the duration of his incarceration from the date of his arrest on 15 March 2013 to the date of his release on 26 February 2015 and malicious prosecution, apportioned as follows:

1.1. 80% of the total sum of R3,922,500.00 awarded is to be paid by the first defendant.

1.2. 20% of the total sum of R3,922,500.00 awarded is to be paid by the second defendant.

2. The defendant is ordered to pay interest on the aforementioned amount at the prescribed rate of interest (as at the date of this judgment) per annum, from date of this judgment until date of final payment.

3. The defendants are jointly and severally liable for the plaintiff's costs on attorney and client scale, including the costs of one counsel who was so employed.

LM MORGAN

Acting Judge of the High Court of South Africa

North West Division

PARTIES REPRESENTATIVES

FOR THE PLAINTIFF

Adv. T Seboko instructed by Makgetha Molemane Attorneys

Email: sebokopa@rsabar.com / tinyseboko@maisels.co.za /

mmattorneyslaw@telkomsa.net

FOR THE FIRST AND SECOND DEFENDANTS

Adv. D. Joubert and Adv. M Moagi instructed by State Attorney, Mahikeng

Email: mmoagi@law.co.za

[1]This matter served before me by virtue of an order made by the Honourable Judge PresidentHendricks on 22 April 2024 wherein, he directed inter alia as follows: 3. THAT: Judgment in this matter is reserved and is to be determined by Acting Judge Morgan (AJ) on the heads of argument filed, duly supplemented by oral argument if need be…” I did not call for further written submissions or oral argument to supplement the papers alreadyfiled on record as I deemed those

before me sufficient to determine the narrow issue before me.

[1]This matter served before me by virtue of an order made by the Honourable Judge PresidentHendricks on 22 April 2024 wherein, he directed inter alia as follows:

3. THAT: Judgment in this matter is reserved and is to be determined by Acting Judge Morgan (AJ) on the heads of argument filed, duly supplemented by oral argument if need be…”

I did not call for further written submissions or oral argument to supplement the papers alreadyfiled on record as I deemed those

before me sufficient to determine the narrow issue before me.

[2] The Constitution of the Republic of South Africa, 1996.

[3] Zealand v Minister for Justice and Constitutional Development and another [2008] ZACC 3; 2008 (4) SA 458 (CC) at para 24.

[4] Thandani v Minister of Law and Order 1991 (1) SA 702 (E) at 707B; and recently confirmed by Constitutional Court in De Klerk v Minister of Police 2021 (4) SA 585 (CC) at para 13.

[5] Ferdinand v The Minster of Police [2018] ZALMPPHC 58 (7 March 2018).

[6] Latha and another v Minister of Police and others 2019 (1) SACR 328 (KZP) at para 8.

[7] 295/05) [2006 ZASCA 71: [2006] SCA 7 (RSA); [2007] 1 All SA 558 (SCA) (30 May 2006) at paragraph [20].

[8] Unreported Judgment, Case No 1/2018, North West Division of the High Court of South Africa, Mahikeng at paragraph 39.

[9] (414/2022) [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) (12 June 2023) at paragraph [17].

[10] Mocumi v Minister of Police and Another Case number CIV APP9/2021; Joubert v Minister of Police and Others Case number 659/2017 NWHC; Nnabuihe v Minister of Police Case number 2273/2019 NWHC; and Tobase v Minister of Police Case number CIV APP MG 10/2021.

[11] Spannenberg v Minister of Police Case number 2993/2019 at para 20.

[12] Ibid.

[13] Motladi/e v Minister of Police [2023] ZASCA 94; 2023 (2) SACR 274 (SCA) para 17.

[14] Minister of Safety and Security v Tyu/u [2009] ZASCA 55; 2009 (2) SACR 282 (SCA); [2009] 4 All SA 38 (SCA); 2009 (5) SA 85 (SCA) para 26.

[15] Spannenberg at para 20.