Mzobo v Minister of Police and Another (60960/2016) [2017] ZAGPPHC 625 (28 September 2017)

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION,

PRETORIA

CASE NO:60960/2016

Not reportable

Not of interest to other judges

Revised.

In the matter between:

TSHEPO

ABSOLOM

MZOBO PLAINTIFF

and

MINISTER OF

POLICE FIRST

DEFENDANT

NATIONAL

DIRECTOR OF PUBLIC

PROSECUTIONS SECOND

DEFENDANT

JUDGMENT

RANCHOD J:

Introduction

[1] The plaintiff in this matter seeks damages from the first defedant for his unlawful arrest and detention in October 2013.

[2] The National Director of Public Prosecutions (the NDPP) was cited as the second defendant but at the hearing for default judgment the action was withdrawn against- the second defendant after I raised concerns about whether a proper case had been made out against the NDPP. This judgment, then, is about the first defendant only whom I shall refer to simply as the defendant for the sake of convenience.

[3] The defendant entered appearance to defend but did not file a plea timeously. The plaintiff's attorneys served a notice of bar in terms of Rule 26 of the High Court Rules. This did not elicit any response from the defendant who was barred ipso facto after the expiry of five days after service of the notice of bar.

[4] The plaintiff then enrolled the matter for judgment by default which is when it came before me in the unopposed motions court.

Background facts

[5] The plaintiff alleges in the particulars of claim that on 25 October 2013 he was arrested by unknown members of the South African Police Service (SAPS) from Moroka police station as a suspect on charges of housebreaking and theft. The police were acting in the course and scope of their employment with the defendant. He was arrested without a warrant and without just or reasonable cause says plaintiff.

[6] In the affidavit filed in support of the application for default judgment for damages the plaintiff amplifies the circumstances

leading to his arrest. He says at the time of his arrest he was on his way to Jabulani to visit his father when he was accosted by a group of about fifteen members of the public, assaulted and threatened with a firearm. He was taken to Moroka police station

where a police officer asked the group if he (the plaintiff) was the man. The group replied that they did not know, but that he looked like the person involved in the housebreaking and theft. Plaintiff says he was then and there arrested and detained in the police cells.

[7] It is to be noted that in the statutory notice of the claim in terms of section 3(2) of Act No. 40 of 2002 the plaintiff mentioned a group of five men who approached him whilst he was walking with his brother down the road. They asked him and his brother for directions but then said they recognised plaintiff as a criminal, forced him into their motor vehicle and took him to Moroka police station where he was arrested.

[8] The plaintiff says further in the particulars of claim that he was unlawfully detained at Moroka police station for six nights from Friday 25 October 2013 and only appeared in the Protea Magistrate's Court on Thursday 31 October 2013 when the matter was postponed to 6 February 2014 at the request of the investigating officer who opposed bail on the basis, inter alia, that the State had a 'strong case' against the plaintiff.

[9] However, it is to be noted that in the damages affidavit the plaintiff says although he was taken to Protea Magistrate's court on 31 October 2013 he never appeared before a magistrate. He had been placed in the holding cells at the court where, at about 16h00 he was informed by a court orderly that he was to be taken back to the police station holding cells as his docket did not contain a 'GAS' number hence the docket had to be properly opened.

[10] Plaintiff says he spent a further seven days in the police cells before being taken to court again on Thursday, 7 November 2013 where he was informed that charges of rape were added against him and the matter was remanded at the request of the prosecutor to "court 14" for a bail application and he was then remanded to Diepkloof prison.

[11] The plaintiff says "on my return date to Protea court" bail was opposed by the investigating officer on the ground that the State had an extremely strong case against him. He was then denied bail and remanded in custody until 6 February 2014 for purpose of further investigations. It is not clear from the words "on my return date to Protea court" whether the plaintiff was refused bail on 7 November 2013 or some other date. It seems to me that he was refused bail on 7 November 2013.

[12] The date is of importance with regard to exactly when a judicial decision was taken for the further detention of the plaintiff as opposed to the earlier detention by the police as the two detentions must be distinguished from each other.[1] A claim for detention as a result of a judicial decision by the magistrate cannot found a claim for damages against the police or the defendant.

[13] Of importance is that the record of the bail proceedings is not before me, hence the magistrate's reasoning in reaching his

conclusion not to admit plaintiff to bail is unknown.

[14] When plaintiff appeared before a magistrate on 6 February 2014 all the charges against him were withdrawn. The prosecutor informed the presiding magistrate that the State had insufficient evidence to proceed with the charges against him.

[15] Plaintiff says he spent thirteen days in detention in the police cells and a further ninety-two days in prison awaiting trial. He says the "investigating officer and/or other unknown policemen involved" knew or ought to have known that no reasonable or objective grounds or justification existed for either his arrest or subsequent and continued detention.

Unlawful arrest

[16] As I said, the plaintiff alleges that the arrest without a warrant was without just or unreasonable cause. This allegation remains undisputed as the defendant failed to file a plea. So is the plaintiff's allegation that he was arrested merely on the say-so of a group of men who said they did not know whether he was the person who committed the alleged offences but that he looked like the person involved. In my view, in these circumstances the arresting officer could not be said to have had a reasonable suspicion for arresting the plaintiff. The arrest was therefore unlawful.

Unlawful detention

[17] It is trite that a person arrested without a warrant must be brought before a court within 48 hours of his or her arrest or, if the 48 hours expire on a weekend or holiday then on the next court day thereafter.

[18] The plaintiff was arrested on a Friday (25 October 2013) and should therefore have been brought before court on the following Monday at the latest. Instead, he was eventually brought before a magistrate for the first time only on 7 November 2013.

[19] The period of detention following upon the unlawful arrest until 7 November 2013 was accordingly unlawful.

[20] Plaintiff also claims damages as against the defendant for the detention from when he was denied bail until his eventual discharge

on 6 February 2014. Whether the plaintiffs detention after his first appearance in court was unlawful is dependent upon the lawfulness or otherwise of the magistrate's order. There is no evidence before this court that the magistrate in either of the two courts (courts 13 and 14) at Protea magistrates court had acted in an unlawful manner. The magistrate is not a servant of the defendant hence no liability for a magistrate's conduct can be attributable to the defendant.[2]

[21] It follows therefore that the plaintiffs claim for damages can only succeed for the unlawful arrest and the period of his detention from 25 October 2013 until 7 November 2013 which, he says, is a period of 13 days.

Quantum of damages

[22] In assessing the quantum of damages suffered by the plaintiff a court may, inter alia, also take into account the conditions under which he was kept in detention. It is also trite that when it comes to assessing quantum past cases can only serve as a rough guide as no two cases are exactly alike.

[23] In the damages affidavit the plaintiff describes the conditions in the cell he was kept at the police station for the 13 days. He says the cell was small, filthy, overcrowded and gloomy. There were no facilities to clean himself as the showers were not in working conditions. He says he was as dirty as he never was before in his life. He was constantly threatened by co-detainees and had to fight for a mattress and blanket which were filthy and infested with fleas. The flushing systems of the toilets were not in working order which added to the already unpleasant smell in the cell which was in any event not properly ventilated. The cell window could not be opened. One of the blankets was used to cover the toilet bowl in an unsuccessful attempt to supress the smell. Toilet paper was not provided. The detainees were told by the police that their families should provide it. Plaintiff says his family was only allowed to visit him after three days.

[24] Proper food was not provided. During the 13 days he was held in the cell the detainees were provided only with black tea (without sugar) and bread in the mornings and dry samp for lunch. Only once in that time were they provided with canned meatballs.

[25] During plaintiff's detention the police had the cells painted. The fumes from the paint made him dizzy and added to his already

stressful experience.

[26] The police accused him of lying when he told them he had type 2 diabetes for which he required insulin twice daily. The police also ignored his family's pleas for medical assistance for him when they were allowed to visit him for the first time on the Monday afternoon after his arrest the previous Friday and noticed that he was coughing up blood. It was only after his aunt telephoned someone she knew in the police service that he was taken to the Chiawelo clinic where an injection was administered and he was supplied with insulin.

[27] These facts, which are undisputed, show that the plaintiffs most basic human rights as provided for in Constitution of the Republic of South Africa 1996 were violated, including the right to dignity. Section 12(1) of the Constitution provides that -

'Everyone has the right to freedom and security of the person, which includes the right-

(a) not to be deprived of freedom arbitrarily or without just cause;

…

(e) not to be treated or punished in a cruel, inhuman or degrading way.'

[29] Section 35 of the Constitution provides:

‘Arrested, detained and accused persons

(1) ...

(2) Everyone who is detained . . . has the right -

(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

(f) to communicate with, and be visited by, that person's­

(i) spouse or partner;

(ii) next of kin;

…’.

[29] It is trite law that in the assessment of damages for unlawful arrest and detention, the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his injured feelings[3]. Courts are not extravagant in compensating the loss arising from unlawful arrest and detention. There is no fixed formula for the assessment of damages for non­ patrimonial loss. It is assessed ex aequo et bono[4] (according to what is just and good).

[30] Factors a court takes into account in assessing damages include the claimant's age, health, circumstances of the arrest, nature and duration of the arrest, the plaintiff's social and professional standing, whether he or she was arrested for an improper motive or as a result of malice, awards made in previous cases, publication of the arrest and plaintiff's income[5].

[31] Plaintiff was 33 years old when he was arrested. He was a gardener and earned an average income of R400 per week. As news of his arrest and detention spread his former customers avoided him, he says, as they were afraid he was a rapist. He had to sell both his lawnmowers in an attempt to survive. As at November 2016 when he signed the damages affidavit he was still unemployed but does not elaborate further such as whether he attempted to find employment. He is supported by his elderly mother. Plaintiff says he suffered severe stress and depression.

[32] I have carefully considered the matter and have had regard to previous awards, which, as I said, can only serve as a rough guide I am of the view that an amount of R350 000 would be an appropriate award in the circumstances of this case.

[33] The first defendant is ordered to pay the plaintiff an amount of R350 000 (Three Hundred and Fifty Thousand Rands) together with interest at the prescribed legal rate e tempore morae and costs of suit on the party and party scale.

_____

RANCHOD J

JUDGE

OF THE HIGH COURT

Appearances:

Counsel on behalf of Applicant: Adv. C Cothill

Instructed by: Spruyt, Lamprecht & Du Preez Attorneys

Counsel on behalf of Respondent: No appearance

Date heard: 13 April 2017

Date delivered: 28 September 2017

[1] Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017) para 13 - 'The two periods of detention - the period until first appearance in court and the period from first appearance until ultimate release, must be considered separately.'

[1] Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017) para

13 -

'The two periods of detention - the period until first appearance in court and the period from first appearance until ultimate release, must be considered separately.'

[2] Minister of Safety and Security v Magagula (supra) para 15.

[3] Minister of Safety and Security v Tyulu 2009(5) 85 (SCA).

[4] Seria v Minister of Safety and Security and Others 2005(5) SA 130 (CPD).

[5] Minister of Safety and Security v Seymour 2006(6) SA 320 (SCA); Tyulu (supra); Quin Ping v Akani EgoIit/a Goldreef City Casino

2000(4) SA 68 (W); Minister of Safety and Security v Scott 20 14 (6) SA 1 (SCA).