Phambili Wasteman (Pty) Ltd v Member of the Executive Council Gauteng Health and Others (2007/1029) [2007] ZAGPHC 363 (2 March 2007)

IN THE SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: 242/05

DATE:2007/06/04

REPORTABLE

(In the electronic reports only)

In the matter between

MICHAEL MOLETE....................................................................Plaintiff

and

MINISTER OF SAFETY AND SECURITY.......................First Defendant

& ANOTHER ….........................................................Second Defendant

_________________________________________________________

J U D G M E N T

WILLIS J:

[1] The plaintiff has claimed damages as follows: (i) for first illegal arrest and detention, R100 000; (ii) for first assault, R120 000; (iii) for second assault, R50 000; (iv) for second illegal arrest and detention (which lasted from 4 April 2003 to 7 April 2003), R120 000; (v) for malicious prosecution, R50 000, together with interest on the aforesaid sums at the rate of 15,5 per cent per annum from the date of judgment to date of payment, and costs.

[2] The claim arises from assaults which took place on 3 and 4 April 2003, and an arrest and charge of the plaintiff on 4 April 2003.

[3] Counsel for the defendants has conceded the merits in favour of the plaintiff. All that remains to be determined is the question of quantum.

[4] The only person to testify in this matter was the plaintiff himself. He was born on 25 September 1979, and is a security guard. His level of education is standard 8. He is registered security guard, and at the time of the incident, was employed by Wozani Security in that capacity, namely as a security guard.

[5] On 2 April 2003, as part of his official duties as an employee of Wozani Security, he, together with other security guards were sent to secure a government building on the so-called "far east bank" on Alexandra township.

[6] It would appear that they were sent there to resist invasion by unlawful occupiers. Indeed, the evidence of the plaintiff is to the effect that unlawful occupiers did arrive.

[7] For reasons that are not clear, the police arrived, and shortly after midnight on 2 April 2003. In other words, this occurred in the small hours of the morning of 3 April 2003. The plaintiff, together with others, was told that he was to be arrested. He resisted arrest, and he protested at the unlawfulness of his proposed arrest.

[8] The plaintiff was assaulted. The assault took the form of his being slapped with open hands, and hit with fists until he fell on the ground. He fell to the ground and was assaulted by having received kicks. He was dragged through a fence, and one of the police pulled out a firearm and threatened to kill the plaintiff if he did not cooperate.The plaintiff testified that he was most

afraid when this had happened, and that, in the result, he then submitted to the unlawful arrest.

[9] He was put in a police van, which travelled at high speed along speed bumps in the road. Some ten minutes after he had been place in the police van, the bump occasioned by the police van travelling over a speed hump, seemed to have forced the door of the

police van open. The plaintiff fell out of the vehicle, onto the ground.

[10] He went to the clinic at Alexandra township. By agreement between the parties, the report of a Dr Latika, who examined him on the morning of 3 April 2003, was handed in as an exhibit. In the report it is recorded that the plaintiff had suffered from a soft tissue injury, and that he had abrasions to his upper lip.

[11] Thereafter the plaintiff went to lodge a complaint at the police station, but was informed by the police that he should come back the next day. He did return the next day and was kept waiting. It would appear was, rather rudely, not attended to.

[12] Eventually, the plaintiff came across the constable who had been responsible, in the main, for the assaults upon him on 3 April. This constable informed him that he would be under arrest and also proceeded to assault him by "clapping" him in the face. Presumably what was intended to be conveyed was that he was slapped in the face.

[13] The document in which the plaintiff recorded his complaint was torn up in his face, in a clearly contemptuous manner. The plaintiff was then charged with discharging a firearm, and "disturbing" a police official. The plaintiff was held in custody from 4 April 2003 (which was a Friday), until the Monday, 7 April 2003. He was released on bail late in the afternoon of that Monday, after his employer paid the R500 bail. The charges were eventually withdrawn, and the prosecution did not proceed.

[14] While he was in custody, the plaintiff was refused the opportunity to telephone home, and it was only on the Saturday when a different police officer "of Indian decent" allowed him to make a call to his family. When the plaintiff's brother arrived at the police station to pay a visit, this visit was disallowed.

[15] This is an appalling and distasteful litany of events. My views have been expressed in a matter which went on appeal, as the following Minister of Safety and Security v Seymore 2006 (6) SA 320 (SCA). In that judgment I not only expressed views as to the seriousness of this kind of conduct, but also as to what I considered to be an appropriate award.

[16] The Supreme Court of Appeal disagreed with me, and clearly one must take one's cue from them in matters such as this. We have a recognised hierarchy of courts in this country, and accordingly I cannot ignore this judgment, which in my view is of considerable importance. It has recently been reported.

[17] The plaintiff's counsel has, in a written argument, reduced the claim to R247 000, with there being separate claims under different heads for the various incidents. I indicated to counsel for the plaintiff that in the Seymore case I had expressed the view that it seemed standard practice in a matter such as this, to award a lump sum or globular award, and that this was one aspect of my judgment with which the SCA did not disagree.

[18] If I understood Mr van der Walt, who appeared for the plaintiff, correctly, he accepted that a lump sum globular award would be appropriate in this matter. In my view the concession was fairly made, because there was a clear linkage between the various

incidents, with a particular individual having played a prominent role. Counsel for the defendants also agreed that a lump sum globular award would be appropriate, and submitted that a figure of R50 000 would be apposite.

[19] Having regard to all the facts of this case, and in particular having regard to the quantum considered by the court to be appropriate in the Seymore case, I am of the view that a fair award in this particular matter will be R65 000.

[20] Judgment is given in favour of the plaintiff against the defendants. The following is the order of the court:

1. The defendants are jointly and severally liable, the one paying the other to be absolved, to pay the plaintiff R65 000 as and for damages arising from the events which took place from 3 to 7 April 2003.

2. The defendants are jointly and severally liable, the one paying the other to be absolved, to pay interest on the aforesaid sum of R65 000 calculated at 15.5per cent per annum from 20 days after the date of this judgment, to date of payment.

3. The defendants are jointly and severally liable, the one paying the other to be absolved, to pay the costs of this action on the high court scale.

FOR THE PLAINTIFF: Mr J L van der Walt (Attorney)

FOR THE DEFENDANT: Mr Lekabe

DATE OF HEARING: 4 June 2007

DATE OF JUDGMENT: 4 June 2007