Onwuchekwa v Minister of Police and Another (58581/11) [2015] ZAGPPHC 919 (28 August 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 58581/11

Date: 28 AUGUST 2015

In the matter between:

UNCHE ONWUCHEKWA................................................................................................APPLICANT

And

MINISTER OF POLICE........................................................................................1ST RESPONDENT

CAPTAIN M GORDON........................................................................................2ND RESPONDENT

JUDGMENT

NOWOSENTZ L AJ

[1] The plaintiff a major male instituted action for damages in the sum of R1 800 000, 00 against the defendants for unlawful arrest and detention. The action was defended but the merits were conceded by the defendant on which was incorporated in an Order of Court dated 31 October 2014 that defendant pay 100% of the plaintiffs proven or agreed damages. The matter was postponed and preceded only on the issue of quantum by way of argument. Although the arresting officer, Captain Gordon was cited as second defendant, the plaintiff confined his claim to the first defendant, the Minister of Police ('hereafter the defendant').

[2] The parties were ad idem regarding the circumstances of his arrest and detention. On 12 September 2009 the plaintiff was arrested by Captain Gordon, a member of South African Police Services (SAPS) in Emalahlene (Witbank) on a charge of contravention of section 41 (1) (a) read with section 1, 9(4) of the Immigration Act, no 13 of 2002 viz illegally entering and remaining in the Republic of South Africa without a valid or legal permit or authorization to enter or remain in the Republic of South Africa.

[3] During the course of his arrest on the same day, he furnished Captain Gordon with his passport and temporary residence permit which were valid. He was taken into custody and kept in the Witbank Police cells at all material times until his release on 26 October 2009 the charges against him were withdrawn.

He first appeared in the Witbank Magistrates Court on 14 September 2009. The case was remanded until 22 September 2009 and finally 26 October 2009. He was detained for 44 days. Despite being in possession of the plaintiffs valid documents the police failed to inform the prosecutor of this fact during his first court appearance and despite enquiries made by the prosecutor to SAPS. No reasonable grounds to suspect the commission of an offence by the plaintiff were advanced by the defendant at all. Nor was any explanation given for the prolonged detention of the plaintiff. There was no evidence of him being ill- treated or assaulted during his detention.

[4] The plaintiff is a Nigerian national who had lawfully entered the Republic of South Africa in 2006 and resided in Emalahlene. At the time of his arrest he was 35 years old. From the documents before me which were not in dispute, it emerges that the Plaintiff was a drug counselor and had competed several courses in Christian ministry. He has spoken widely at secondary schools, Tshwane University of Technology, churches and youth groups on drug rehabilitation, spiritual reconstruction and life skill courses. There were several certificates of commendation from such institutions over a period two years before his arrest. A newspaper article was published about him in the local press. He was a well-known and highly regarded member of the community in Emalahlene.

[5] The plaintiff is entitled to general damages for unlawful arrest, loss of freedom and impairment of dignity. Much has been said by our courts on the guiding principles in evaluating and assessing the quantum of damages. The trial judge has a large discretion in awarding general damages ex aequo et bono. The observations made by Nugent JA in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at 325 -326 can be paraphrased thus: Money is but a crude solatium - there is no empirical measure for loss: The historic comparison with previous awards must be done with circumspection and each case ultimately must depend on its own merits. The Constitution has not enhanced the inherent value of liberty, which has been constant, although systematically undermined. Rather it ensures that those incursions upon it will not recur.The fiscus (public purse) has many other needs to address. Comparisons with awards in other cases are not more than a useful guide as cases are seldom similar. There is a reluctance of our courts to make extravagant awards. Kwenda The award must be fair to both sides. (See Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 D).

[6] Plaintiffs counsel surveyed a number of cases. In Seymour (supra)damages for arrest and detention for five days was reduced on appeal from R500 000, 00 to R90 000, 00 (present value R180 000). In Mvu v Minister of Safety and Security & Another 2009 (6) SA 82 (GSJ) the plaintiff was arrested and detained for one day and R30 000, 00 was awarded (present value R42 000, 00). In Kwenda v Minister of Safety and Security (unreported) NGHC case no: 3667/09 dated 25 June 2010 the plaintiffs were arrested and detained for a weekend, R70 000,00 was awarded (present value R93 000,00). In Manase v Minister of Safety and Security 2003 (1) SA 567 (CK) a 65 year old businessman was unlawfully detained for 49 days and incarcerated at times with criminals. R90 000 was awarded

(present value R102 000). It was submitted on behalf of the plaintiff that the average present adjusted value of compensation per day in recent years is R58 000. Damages in such cases are not however computable on a daily tariff and the length of time of the detention is one of several factors assessed in evaluating the severity and consequences of the unlawful conduct.

[7] Noteworthy is the recent judgment of Emeka Christian Okonkwo v Minister of Home Affairs & 1 Others (unreported) ECLD Case no: EL 464/2012 ECD1164/2012 delivered on 30 June 2015. The plaintiff, a businessman, was wrongfully arrested and detained in East London for 75 days. His conditions of detention were unsanitary and harsh. He was humiliated. He was never brought to court and was never charged. He was awarded R750 000.

[8] The conduct of the second defendant in this case deserves censure and should be investigated. The plaintiff's rights were callously and needlessly violated. Section 12 of the Constitution provides for 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..." His right to be released from detention, if permitted in the interests of justice and subject to reasonable conditions is provided for in terms of Section 35 (l)(f) of the Constitution. The courts have on numerous occasions emphasised the seriousness of their violations and the duty to uphold the rights to safety, liberty and dignity of the individual. Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W) at 86 D - F; Seria v Minister of Safety and Security & Others 2005 (5) SA 130 (c) at 151.

[9] It is not in dispute that the plaintiff was resident in Witbank at least since 2006 and was known to the police. He was brought to court on at least two occasions when the police had the opportunity to inform the public prosecutor that he was in possession of valid documentation. The conclusion is inescapable that the second respondent deliberately withheld from the prosecutor that the plaintiff was in possession of valid immigration and residence documents in order to sabotage any possibility of him being released or obtaining bail. It is not known if the plaintiff was informed of his right of access to a legal practitioner in terms

of Section 35 (2) (b) of the Constitution. There was simply an avoidable and material miscarriage of justice.

[10] It is with growing apprehension that a steady stream of unlawful arrest and detention cases reach our courts. It is disconcerting that our Constitution does not enjoy the pre-eminence it commands, by law enforcement officers in such cases. It is troubling that this and the Okonkwo case both deal with the unlawful arrest and detention of foreign nationals. The emergence of xenophobia in our society in recent times is a social evil that cannot be tolerated. These cases are an ominous indication of what appears to be contagion of this xenophobia by some officials of the departments concerned in performing their public duties. Unless remedial action is taken at the highest level to correct and discipline those officials who place themselves above the law, the hard won freedoms and rule of law in South Africa is imperiled.

[11] The severity and extent of the Okonkwo case is greater that this case. Taking all the factors into account as well as the cases surveyed, an amount of damages in the sum of R600 000 is awarded. The Plaintiff requested interest to be payable from the date of service of summons despite the claim being unliquidated. This is permissible in terms of the Prescribed Rate of Interest Act 55 of 1975. See Kwenda (supra) at paragraph [23].

ORDER

The following order is made:

1.1. The First Defendant is ordered to pay the Plaintiff the amount of R600 000 which amount shall be paid to Jaap Venter Inc Trust Account, First National Bank, branch code no [2………] , account number [6………….].

1.2. Interest on this amount is payable by The First Defendant from the date of service of summons being 14 February 2012 at the rate of 15.5% per annum a tempore morae to date of payment.

1.3. The First Defendant shall pay the Plaintiffs taxed party and party or agreed costs including the costs of two counsel.

NOWOSENETZ L (AJ)

Heard on : 15 May 2015

For the Plaintiff/Applicant Advocate Du Plessis J (SC)

Instructed by Jaap Venter Attorneys

For the Defendant/Respondent Advocate Simon Mongolele

Instructed by State Attorney

Date of Judgment : 28 AUGUST 2015