Schoombee and Others v Minister of Police and Another (2680/204; 992/2015; 994/2015; 995/2015; 996/2015) [2019] ZAECGHC 94 (1 October 2019)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

IN THE CONSOLIDATED MATTERS BETWEEN:

ANDRE SCHOOMBEE Plaintiff

in Case No. 2680/2014

TOKOSHE JOHN ADAM Plaintiff

in Case No. 992/2015

MXOLISI MAXON YAWA Plaintiff

in Case No. 994/2015

NOZIBELE YVONNE MTYALI Plaintiff in Case No. 995/2015

OCTAVIA BAMBILAWU-MONNAWABOKONE Plaintiff in Case No. 996/2015

and

THE MINISTER OF POLICE First

Defendant

CAPTAIN

LWANA Second

Defendant

JUDGMENT

RUGUNANAN, AJ:

[1] Each of the plaintiffs have instituted actions in which they claim damages from the defendants. The claim by Ms Octavia Bambilawu arose from her malicious, alternatively wrongful arrest, alternatively abduction from her place of employment at the Senqu Municipality, Lady Grey and her subsequent interrogation and detention by the second defendant on 1 July 2013 - all of which which endured until the early hours of 2 July 2013.

[2] The damages claimed by Ms Bambilawu are in respect of:

deprivation of freedom

R1 000 000. 00

violation of constitutional rights

R100 000. 00

contumelia

R300 000. 00

discomfort, anxiety, distress and mental trauma

R300 000. 00

Medical expenses

R84 000. 00

[3] The claims of Mr Tokoshe Adam, Mr Mxolisi Yawa and Mr Andre Schoombee in respect of their wrongful arrest, detention and malicious prosecution by the second defendant, arose from an incident that occurred on 2 July 2013 at the offices of the Senqu Municipality. Following their arrest, Messrs Adam, Yawa and Schoombee were each detained overnight in the police cells at Lady Grey until 3 July 2013 when they were released on bail at approximately 16h00. At the instance of the second defendant, each of them were falsely charged with assault, obstructing a police officer in the performance of his

duties and / or “interference”, consequent to which they stood trial in the regional court, Lady Frere until the Director of Public Prosecutions stopped their prosecution on 8 March 2018. The actions instituted by each of the plaintiffs were consolidated by order of this court on 17 January 2017. Included in the consolidation order was the action instituted by Ms Nozibele Mtyali. Except for the question of costs, her claims for wrongful / malicious arrest, malicious proceedings, legal expenses, contumelia, humiliation, anxiety and distress became settled in the globular amount of R163 000 (barring costs, this settlement was incorporated in an order of this court on 26 April 2019).

[4] The damages being claimed by the plaintiffs Adam, Schoombee and Yawa are set out as follows:

Adam:

Malicious alternatively wrongful arrest,

deprivation of freedom, violation of

constitutional rights, contumelia, humiliation,

anxiety, distress and mental trauma

R250 000. 00

Malicious alternatively wrongful detention,

Malicious proceedings

R150 000. 00

Legal expenses

R236 442. 08

Assault

R150 000. 00

Schoombee:

Malicious proceedings: contumelia

R100 000. 00

Humiliation, anxiety, distress and mental trauma

R50 000. 00

Medical expenses

R44 871. 00

Yawa:

Assault: general damages and contumelia

R150 000. 00

Legal expenses

R236 442. 08

[5] Among all the plaintiffs Bambilawu, Mtyali, Adam, Yawa and Schoombee, was a further plaintiff, Ms Palesa Bushula. She was arrested by the second defendant on 2 July 2013. She was detained overnight, initially in the police cells at Lady Grey and subsequently in hospital after she developed respiratory complications prompted by cold weather and compounded by conditions in the police cell. On 3 July 2013 at approximately 16h00 she was released on bail. At the instance of the second defendant she too was prosecuted with the plaintiffs Adam, Yawa and Schoombee on false charges of assault, resisting arrest and / or “interference”.

[6] On 18 November 2016, the action instituted by the plaintiff Bushula proceeded to trial in this Court before Beshe J on issues of both merits and quantum. In a judgment by Beshe J delivered on 24 October 2017, Bushula was awarded damages as follows:

Wrongful arrest and detention R250 000. 00

Malicious prosecution

R100 000. 00

Assault

R50 000. 00

Theft (cellphone)

R4 000. 0

[7] An application for leave to appeal against the judgment by Beshe J (on grounds limited to the “termination of the criminal proceedings” and the quantum of damages) was dismissed by Beshe J on 25 June 2019.[1]

[8] Reverting to the matters consolidated, on 24 April 2019 and at the commencement of the trial, the first defendant conceded liability on the merits for each of the claims by the plaintiffs Bambilawu, Mtyali, Adam, Yawa and Schoombee. The second defendant made no appearance. As a result of the concession, this judgment deals with the quantum issue for assessing the damages claimed by each plaintiff (except Mtyali). On 5 July 2019, when proceedings resumed for submissions on quantum, Mr Boswell who appeared for the first defendant,[2] fairly and properly conceded the defendant’s liability for: (i) R84 000 in respect of medical expenses incurred by the plaintiff Bambilawu; and (ii) R236 442. 08 in respect of pro rata legal expenses incurred by the plaintiffs Adam, Yawa and Schoombee.

[9] Of note is that the claims for the plaintiffs Adam, Yawa and Schoombee in respect of arrest, detention, and malicious proceedings are identical to those of the plaintiff Bushula. The judgment by Beshe J sets out, as a starting point, the circumstances in which the plaintiffs’ claims arose. The analyses of the merits of the claim/s by the plaintiff Bushula served as an indicator that forecasted the outcome on the merits of the claims in the consolidated matters; as such, the concession by the first defendant was inevitable. For this reason it is considered unnecessary to recapitulate herein the full spectrum of each plaintiff’s testimony where it traverses the merits other than to extrapolate from the evidence the material considered relevant in arriving at an award of damages for each of them.

[10] Emerging from the evidence read together with the pleadings [3] are the following facts common to the plaintiffs Adam, Yawa and Schoombee.

[11] All were arrested at the instance of the second defendant on 2 July 2013 at approximately 15h00 or shortly thereafter and detained until approximately 16h00 on 3 July 2013 after appearing before a magistrate. The police cells in which they were detained were filthy and unhygienic. The toilet was non-functional, there was no running water and the place unbearably reeked of excrement and urine. The cells had an open courtyard uncovered by a roof. It was winter and plaintiffs were exposed to the elements and to freezing cold conditions. Schoombee and Adams were placed in the same cell, and Yawa in another. The plaintiffs were denied exercising their

Constitutional rights as arrested persons and each were subjected to accept, several hours after being detained, a “Notice of Rights In Terms Of The Constitution” which inaccurately and fraudulently recorded the time of handing over to each plaintiff. The second defendant adopted an obstructive attitude towards bail and sought to persuade the prosecutor that an amount of R10 000

should be fixed for each plaintiff. Adam and Yawa were each granted bail of R1 000. Moreover they were subjected to stringent

conditions that precluded them from returning to their workplaces at the municipality. The charges against each plaintiff were

provisionally withdrawn and reinstated, this at the instance of the second defendant after he threatened the senior prosecutor Ms Rhona Scheun with arrest for obstruction of justice.[4] In the period 3 July 2013 to 8 March 2018 [5] (both dates inclusive), the plaintiffs were obliged to appear in the district court and subsequently in the regional court on some 25 occasions in defending the false charges against them. In that period, two applications were made to the High Court for the

preservation of evidence recorded in a cellphone employed by the plaintiff Bushula to film the arrest of Yawa which took place in his office at the municipality. Each of the plaintiffs Adam, Yawa and Schoombee acknowledged his indebtedness to the municipality to repay R236 442. 08 being a pro-rata portion of the total expense incurred by the municipality in funding the defence of the criminal prosecution against the plaintiffs. In this regard, the evidence by the plaintiffs’ attorney of record, Mr Henry Van Breda, was not contested.

[12] Having presented an abridgment of facts common to the plaintiffs Adam, Yawa and Schoombee, what follows hereunder is a summary of the testimony given by each of them, commencing with Ms Bambilawu.

BAMBILAWU

[13] Ms Bambilawu is a married woman, aged 30 and a parent of two minor children. In 2013 she was unmarried and was employed as a personal assistant to the municipal manager, the plaintiff Yawa. On 1 July 2013 the second defendant arrived at her workplace together with a female Constable Duma. The second defendant told her to accompany him. Nothing was said about where he intended taking her, other than that it had to with an investigation involving corruption in the municipality and that he did not need anybody’s permission to take her from her workplace. Ms Bambilawu was not given the opportunity to gather any of her personal effects but retrieved a cellphone. She concealed it in her jacket. While exiting the building she informed the HR manager in Afrikaans that she was being taken but the second defendant interjected and directed her to speak English.

[14] She was ushered into a vehicle driven by the second defendant. While seated on the backseat she realised that the child locks of the rear doors were engaged. Constable Duma received a call on her cellphone and she overheard her telling the caller that she was on her way to Sterkspruit. It appeared that the caller enquired about the whereabouts of Ms Bambilawu. Constable Duma said that she did not know. Constable Duma received a second call and told the caller that neither she nor the second defendant knew where Ms Bambilawu was. Ms Bambilawu became “very anxious and worried”.

[15] She also noticed that the vehicle proceeded in the direction of Bloemfontein and not Sterkspruit as indicated earlier by Constable Duma. She found a newspaper on the backseat. While pretending to read it she sent a text with her nickname “Hope” to her colleague Ms Bushula. The latter called back and the second defendant realised that she had a cellphone on her person. She answered the call and informed Ms Bushula that she was on her way to see Chris who was unwell. Chris is Ms Bushula’s father who lives in Bloemfontein. This disclosure was indicative of her whereabouts for the day.

[16] As the journey progressed, the second defendant informed Ms Bambilawu that he was taking her to Bloemfontein because he wanted to meet with her mother. At the meeting with Ms Bambilawu’s mother, the second defendant required details of the latter’s business relationship with the municipality relating to the provision of accommodation of the municipal manager Mr Yawa. He also wanted to know if she knew about a sexual relationship between Ms Bambilawu and Mr Yawa. The meeting terminated abruptly and the two police officers left Bloemfontein together with Ms Bambilawu. They returned to Lady Grey at about 11 o’clock that night. Ms Bambilawu was taken to the police station where the second defendant questioned her and pressurised her into admitting to a sexual relationship with Mr Yawa. She was informed that a case had been opened “against the municipality” whereafter she was taken home by the second defendant at about midnight.

[17] On 2 July 2013 Ms Bambilawu returned to work but left early because she needed to see a doctor. She returned to work on 19 August 2013. In the period prior to her return there were media reports about her relationship with Mr Yawa. Her relationship with her partner, to whom she was engaged to be married suffered considerable strain. During that period she consulted a psychologist, a psychiatrist and a social worker. She was admitted to Hillandale hospital for 3 weeks where she was treated with anti-depressants and sleeping pills. She remained dependent on medication until December 2013. Her medical aid was exhausted and she incurred medical expenses amounting to R84 000.

SCHOOMBEE

[18] The circumstances necessitating Mr Schoombee’s presence at the municipality are not in dispute. These are contained in the

transcript of the evidence in the Bushula trial and by agreement between the parties his testimony should be read as if incorporated

in these proceedings.[6] In brief, Mr Schoombee is 52 years of age. He is married and has children. He is a resident of East London and is an attorney of more than 20 years’ standing, specialising in criminal law.

[19] On 2 July 2013 while travelling from Bloemfontein with his wife, he was contacted telephonically and diverted his journey to present himself at the municipality to assist in resolving the impasse with the second defendant who did not proffer an adequate explanation for his presence at the municipality nor was he prepared to identify himself to Ms Bushula and to the plaintiff Yawa.

[20] Following the arrest of the plaintiff Yawa in the circumstances set out below, Mr Schoombee immediately set about making arrangements to secure the release of Mr Yawa on bail. While in discussion with the local magistrate he was approached by two policemen who explained that they were sent by the second defendant who requested his presence at the police station to explain the reason for Yawa’s arrest. Mr Schoombee was escorted to the police station by the plaintiff Adam and a Mr Wonga.

[21] Upon their arrival at the police station he was approached by the second defendant who informed him that he was placed under arrest. The second defendant was accompanied by approximately 10 policeman all of whom were armed. On seeking clarification as to the reason for his arrest, the second defendant condescendingly said to him that he should know his rights. He was allowed to make a phone call and contacted an attorney from East London. A large crowd had gathered outside the police station and he heard shouting and screaming and in that sense learnt that Ms Bushula and the plaintiff Adam were arrested. He was detained and experienced the conditions set out above. He was denied the opportunity to properly exercise his constitutional right to consult with his legal representative and was forced to scream instructions through the bars of the holding cell in which he was detained. He had no physical contact with his wife and was unable to directly inform her of his situation other than to communicate through the legal representative who visited him.

[22] The second defendant’s conduct relevant to the bail proceedings was obstructive. The docket was not timeously brought to court and the second defendant proposed a ridiculous amount of R10 000 for bail. Mr Schoombee was released on warning without conditions.

[23] The events following the arrest and detention and prosecution had a profound effect on Mr Schoombee. After his release he was unable to return to work for approximately 4 or 5 days. He had difficulty functioning in a professional capacity; he turned work away and avoided interacting professionally with his colleagues. His lack of productivity in practice as an attorney caused him to suffer loss of income for an undefined amount. Due to the development of an excessive drinking habit, his relationship with his wife was placed under strain with a threat of divorce; he felt humiliated by reports in the newspaper and over the radio, suffered nightmares, was prescribed anti-anxiety medication and consulted two psychologists.

[24] This brings me to the content of a report by clinical psychologist Mr Ian Meyer. The report dated 22 July 2015 was filed in accordance with uniform rule 36(9)(a) and (b) and was admitted into evidence without the necessity for formal proof. During argument Mr Boswell indicated that the first defendant would not be averse to an order in respect of the cost of the report and the qualifying expenses, if any, of Mr Meyer. On the quantum issue, the following excerpts from the report are pertinent:

“… The plaintiff presented with an acute stress disorder in the immediate period post trauma which was subsequently diagnosed as PTSD.”

[7]

“Over a period of two years since the plaintiff was arrested in July 2013, he has been recurrently re-traumatised as a result of needing to appear in court and/or participate in the preparation for his criminal trial, which has taken its toll on his personal mental state and affected his ability to function effectively within his social, marital, familial and vocational domains.” [8]

“One of the sequelae of the plaintiff’s allegedly unlawful arrest has been a profound disappointment in his attitude towards the legal system and its apparent disregard for due process, which has been a sacrosanct concept and cornerstone of legal practice for the plaintiff throughout his professional career.” [9]

YAWA

[25] Mr Yawa is 46 years of age; he is married and has three children. He holds a Masters degree in public administration and has devoted his life and built a career in the public service sector. Since 2001 he has been municipal manager at the Senqu Municipality in Lady Grey. During his tenure the municipality achieved five unqualified audits and five clean audits and was rated the second best municipality in the country.

[26] He was arrested in his office in the presence of politicians and senior managers of the municipality who report to him. Also present were the plaintiffs Yawa, Schoombee and Bushula (who filmed the arrest on her cellphone), several policemen who accompanied the second defendant, the speaker of the council, the chief whip of the council, and the mayor. The events that took place in Mr Yawa’s office were recorded by a CCTV camera. The recorded footage was replayed during the trial in this court.

[27] After the arrest, Mr Yawa was partially handcuffed and paraded through the municipal office to the main entrance. He was refused discreet use of a side door to avoid embarrassment. Municipal employees and members of the public were present as he emerged from the premises. He was humiliated upon noticing onlookers with cell phones taking video footage or photographs of him which he believed would be circulated on social media. He was escorted by police van to the police station where his spectacles were confiscated. He was unable to see clearly without them.

[28] Due to his bail conditions, Mr Yawa was unable to return to work for a month during a critical period when his input was required for the submission of municipal reports. His embarrassment caused him to become withdrawn from attending church and social events. His relationship with his children was affected; he could not muster the strength to explain to them the events which affected him. Upon returning to work he encountered difficulty when dealing with municipal employees. His embarrassment was engendered by perceptions that he no longer exerted the authority he once had. He was also subjected to investigation by a disciplinary board after the MEC directed the municipality to conduct a financial misconduct investigation. As a corollary to all this, he was obliged on various occasions to explain to the municipal Council why should not be dismissed, this in the wake of community protests and petitions calling for his removal from office as a corrupt individual. In this regard it bears mentioning that he was also charged with corruption (a charge unrelated to those in respect of which his claim for malicious proceedings is based). He was convicted of making a misrepresentation to the municipality about his entitlement to accommodation pending the municipality providing him with a house which it was obliged to do in terms of his employment contract. The appeal against that conviction is pending. His professional reputation and integrity has been tarnished. This has limited his prospects of seeking employment elsewhere in the local government sphere.

ADAM

[29] Mr Adam is 63 years of age and was at the time of events a resident of Lady Grey who was employed by the municipality as a driver for the executive mayor.[10] His initial encounter with the second defendant was when the latter together with several other police officials presented themselves in the reception area of the municipal offices. The second defendant wanted to see the municipal manager but did not state his reason therefor despite being asked to state the purpose of his visit.

[30] Mr Adam was present in the office of the plaintiff Yawa when the latter was arrested and ushered through to the front of the municipal offices. In his particulars of claim Mr Adam pleaded that he was assaulted by the second defendant when the latter was in the process of arresting the municipal manager. Although the alleged assault was conceded by the first defendant because the CCTV footage revealed that the second defendant pushed around several people, among them Mr Adam, Mr Adam had a very vague memory of the alleged assault. After the plaintiff Yawa was arrested, Mr Adam escorted the mayor to the local police station where Yawa was taken.

[31] Mr Adam confirmed that the plaintiff Schoombee was arrested in his presence. Shortly thereafter he was also arrested by the second defendant whom he stated did not proffer a reason for the arrest. He was ushered into the police station by police officers who were armed with what he described as “those big firearms”. In the police station he overheard a police officer shouting out that he and the plaintiff Schoombee should not be detained in the same cell with the plaintiff Yawa. He could hear someone screaming in one of the neighbouring cells. He realised that it was Ms Bushula.

[32] The cold environment in the cell in which Mr Adam was detained with the plaintiff Schoombee did not bode very well for him and caused him to suffer pain and discomfort to his back where he had undergone recent surgery.

[33] The following day and after appearing before a magistrate he was released on bail of R1 000 with conditions. Initially the second defendant proposed bail of R10 000 which Mr Adam could not afford. Being precluded from returning to work by operation of his bail conditions, Mr Adam spent much of his time at home. The house in which he lived is in the same street as the municipality. He would hear passers by shouting out that he and the others were thieves with the resounding echo of “pay back the money”. In 2016 he felt obliged to relocate to Herschel which is approximately 20 kilometres away from Lady Frere.

QUANTIFICATION

[34] The plaintiffs’ claims for arrest and detention, (and the claim by Bambilawu for abduction), resort under the actio iniuriarum which is a general action relating to infringements of personality rights.[11] Quantifying general damages involves the exercise of a broad discretion by a court to award what it considers to be fair and adequate compensation.[12] In Minister of Safety & Security v Tyulu[13] the approach to quantifying damages in matters such as the present has been laid down to be as follows:[14]

“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 (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) 325 paragraph 17 [also reported at [2007] 1 All SA 558 (SCA)-Ed]; Rudolph & Others v Minister of Safety & Security and Others (380/2008) [2009] ZASCA 39 (31 March 2009) (paragraphs 26-29) reported at [2009] 3 All SA 323 (SCA)-Ed].”

[35] The non-pecuniary damage caused by malicious prosecution consists mainly in the impairment of a plaintiff’s good name, and feelings of dignity.[15] Damages are assessed ex aqueo et bono and are influenced, inter alia, by the period during which the charge hung over the plaintiff’s head, the defendant’s persistence in the charge, the

defendant’s malice, and that the plaintiff has a right to be compensated for personal insult, indignity and humiliation.

[36] During argument Mr Quinn SC submitted that each plaintiff deserves a substantial award for damages because of the second defendant’s heavy handed conduct and abuse of his powers. The arrest and detention and the events flowing therefrom had a profound effect on the plaintiffs Yawa and Schoombee, and in the case of Adams he was obliged to relocate. They were subjected to a malicious prosecution that extended over several years, undoubtedly with attendant anxiety, frustration and inconvenience in their lives. The plaintiff Bambilawu was traumatised by her abduction particularly when she discovered the doors of the vehicle in which she travelled were locked and upon overhearing Constable Duma pleading ignorance of her whereabouts. She was admitted to a psychiatric hospital and returned to work several weeks later. Mr Quinn submitted that the Bushula case was factually on all fours with the present cases and the award by Beshe J may serve as a useful guideline for assessing damages.

[37] Mr Boswell on the other hand, cautioned against making excessive awards. In his heads of argument he referred to inflation adjusted awards in numerous previous cases.[16] I have taken these into account while being heedful that they merely serve as a rough guide, it being anxiomatic that no two cases are exactly the same. In the case of the plaintiff Yawa, Mr Boswell submitted that much of his embarrassment did not flow directly from his arrest and detention but rather from his corruption charge. Furthermore, the only assault apart from being manhandled by the use of the handcuff, was the scuffling that took place in the office in relation to which incident Mr Yawa testified that it was a bit rough but that no physical injury was sustained. On this premise Mr Boswell submitted that a minimal amount of damages should be awarded for the assault. In the same vein he contended that a minimal amount should be awarded in favour of the plaintiff Adam. For the remainder, Mr Boswell raised no serious issue with the evidence by the plaintiffs Schoombee and Bambilawu.

[38] I take note of the submissions by both counsel as also the fact that the plaintiffs are respectable individuals who made a good impression on me. I am cognisant that the award in the Bushula matter was individualised and modelled on her personal experience of her arrest and detention and the sequelae that followed. I am not necessarily obliged to follow suit by quantifying the plaintiffs’ damages to achieve the same threshold in Bushula.

[39] All I have before me is the evidence of the plaintiffs. I must do the best I can to ensure that they are given just compensation without pouring “largesse from the horn of plenty” at the defendants’ expense even if the ultimate result is an informed guess.[17] My own observation is that the plaintiffs’ claims are divided into sub-heads and comprise of very substantial amounts.[18] I was not referred to any comparable cases where awards within that reach were justified. For this reason, I am of the view that it would serve no purpose to award separate amounts under each head for each of the plaintiffs. To do so would be at the risk of duplication and overcompensation. Because a trial court has a large discretion to award what it considers to be fair and just, I prefer to award globular amounts as reflected in the order set out below.

COSTS

[40] The trial of the consolidated actions was set down for 23 April 2019 but did not proceed on that day. The matter stood down for the following day 24 April 2019. On the latter date liability on the merits was conceded and the actions proceeded to trial on the quantum issue and ran until 26 April 2019. On 5 July 2019 this court heard argument on the quantification of damages. On that day the defendant

made a tender (accepted by the plaintiffs) for payment of the wasted costs of 23 April 2019 on a scale as between party and party. In the light of such acceptance, nothing needs to be said about the circumstances that precluded the trial from proceeding on 23 April 2019.

[41] Save for the agreement, Mr Quinn contended that costs in the cause be awarded on a scale as between attorney and client. He drew on the fact the prosecution of the plaintiffs was protracted over an extended period of years, and that the merits of their claims were belatedly conceded on the first day of trial (24 April 2019) after essentially similar facts on the same causes of action were determined by Beshe J on 24 October 2017. On this aspect evidence was led from Attorney Van Breda regarding correspondence directed to the defendants’ attorneys urging that the cost of pre-trial preparation on the merits could be avoided if the merits were conceded in advance.

[42] Notwithstanding such evidence, precisely how the first defendant dealt with or reacted to such correspondence and / or the judgment is not known. What is a known fact is that the trial on quantum was conducted expediently. The merits were conceded on 24 April 2019 and throughout the conduct of the proceedings the defendant, as Mr Boswell correctly submitted, agreed to the admission of portions of evidence in the transcript in the Bushula trial. Mr Meyer was not required to testify on his report which was admitted into evidence by agreement. Moreover, the claim by the plaintiff Mtyali was settled without the need for leading evidence (the outstanding costs issue regarding her matter is incorporated in the order below). Furthermore none of the plaintiffs were subjected to unnecessary or lengthy cross-examination, all of which signifies overt efforts to curtail the duration of the proceedings. I have already alluded to the very substantial amounts under the various heads of damages being claimed by each plaintiff. When faced with claims of the magnitude such as the present, the words of Trollip JA in the Shatz Investments case [19] are particularly apposite:

“But generally, in regard to that complaint and others by plaintiff about the manner in which the trial was conducted on defendant’s behalf, one should bear in mind that usually a wide latitude should be afforded a defendant in presenting his defence, especially when he is confronted with a substantial claim for damages. In such a case, I think the defendant is usually entitled ‘to put his back against the wall and to fight from any available point of advantage’ (cf Kekewich J in Blank v Footman, Pretty & Co 39 Ch D 678 at p. 685 quoted with approval in Nel v Nel 1943 AD 280 at p. 288).”

[43] I appreciate that those remarks might relate to a defendant who was successful on some but not all defences. However, in principle it does not matter if all defences advanced fail. Something more is required before a punitive costs order is made.

[44] In the result the following order issues:

[44.1] Judgment is granted for the plaintiff Andre Schoombee as follows:

(a) R230 000 for his arrest and detention, including deprivation of

liberty, contumelia, anxiety and mental distress;

(b) R90 000 for his malicious prosecution;

(c) R236 442. 08 for legal expenses.

[44.2] Judgment is granted for the plaintiff Tokoshe John Adam as follows:

(d) R210 000 for his arrest and detention including deprivation of

(a) R2 000 for his assault;

[44.3] Judgment is granted in favour of the plaintiff Mxolisi Maxon Yawa as follows:

(e) R220 000 for his arrest and detention including deprivation of

(a) R90 000 for his malicious prosecution;

(b) R5 000 for his assault;

[44.4] Judgment is granted in favour of the plaintiff Octavia Bambilawu Monnawabokone as follows:

(a) R180 000 for her abduction including deprivation of liberty,

contumelia, anxiety and mental distress;

(b) R84 000 for medical expenses.

[44.5] The first and second defendants are ordered to pay:

(a) interest on the awarded damages at the prevailing legal rate from date of judgment to date of payment;

(b) costs of suit on a scale as between party and party, such costs to include,

(i) those incurred by the plaintiff Nozibele Yvonne Mtyali; and

(ii) the costs attendant on the preparation of the report and the qualifying expenses, if any, of Mr Ian Meyer,

together with interest thereon at the prevailing legal rate from date of allocator to date of payment;

[44.6] The orders in paragraphs [44.1]; [44.2]; [44.3]; [44.4] and [44.5] in favour of each plaintiff shall be joint and several against the first and second defendants, the one paying the other to be absolved.

________

S.

RUGUNANAN

ACTING

JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiffs:

Adv. R. Quinn SC

Instructerd by Netteltons Attorneys

Makhanda / Grahamstown

For the Respondent: Adv. B. Boswell

Instructed by N N Dullabh & Co.

Dates heard:

24, 25, 26 April and 5 July 2019

Date delivered:

1 October 2019

[1] The dismissal signified that Bushula succeeded in proving the element that the prosecution failed in relation to the malicious

prosecution claim

[2] The second defendant made no appearance

[3] And considered by Beshe J as well

[4] Ms Scheun’s evidence on this aspect appears in the transcript of proceedings in the Bushula trial before Beshe J and was by agreement regarded as evidence given in the consolidated proceedings. See Trial Bundle 3, Annexure C Part 1 pages 176-203

[5] The date of acquittal on all charges

[6] See Trial Bundle 3, Annexure C Part 1 pages 2013-278

[7] Post traumatic stress disorder, Meyer, page 21

[8] Meyer, page 22

[9] Meyer, page 23

[10] Who was at the time the plaintiff Ms Mtyali

[11] De Klerk v Minister of Police 2018 (2) SACR 28 (SCA), paragraph [43]. The legal position in regard to the actio iniuriarum was considered in Minister of Police v Mbilini 1983 (3) SA 705 (AD), where Smuts AJA said at 715F-H: “It is trite law that one of the rights which is protected by the actio iniuriarum is the right to an unimpaired dignity. Dignity was defined by Melius de Villiers in 1899 in his well known work ‘The Roman and Roman Dutch Law of Injuries’ at 2425 as - ‘… that valued and serene condition in his social or individual life which is violated when he is, either publicly or privately subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, radical disesteem or contempt…Every person has an inborn right to the tranquil enjoyment of his peace of mind, secure against aggression upon his person, against the impairment of that character for moral and social work to which he may rightly lay claim and of that respect and esteem of his fellow men of which he is deserving, and against degrading and humiliating treatment; and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such a right.’ “

[12] Peterson v Minister of Safety & Security 2011 (6k6) QOD 1 (ECG) at paragraph [15]

[13] [2009] 4 All SA 38 (SCA) at paragraph [26]

[14] In Thandani v Minister of Law and Order 1991 (1) SA 702 (E) it was stated in respect to quantum that: “…sight must not be lost of the fact that the 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. Unlawful arrest and detention constitutes a serious inroad into the freedom and the rights of an individual." In Olgar v Minister of Safety & Security (ECD) Unreported Case No. 608/07 at paragraph [16], the need for prudence in assessing

damages for wrongful arrest and detention was stated as follows by Jones J: “In modern South Africa a just award for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, and the nature, extent and degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and a proper regard to the value of money to avoid the notion of an extravagant distribution of wealth from what Holmes J called the ‘horn of plenty’, at the expense of the defendant.”

[15] Visser & Potgieter, Law of Damages, Juta 2nd ed at page 475 paragraph 15.3.11

[16] Arrest and Detention: Stoltz v Minister of Safety and Security (Unreported SCELD 3114/2004) R211 000; Peterson v Minister of Safety and Security

(Corbett & Honey Vol VI, K6-1) R83 185; Thlaganyane v Minister of Safety and Security (North West High Court, Mafeking

2267/2012) R140 000; Nqweniso v Minister of Safety and Security (ECD 2267/2010) R106 000; Majaca v Minister of Safety and Security 2012 JDR 2384 (ECG) 1721/2012 R126 000; Van der Merwe v Minister of Safety and Security (Corbett & Honey Vol VI, K6-35) R120 000; Rowan v Minister of Safety and Security 2011 QOD 6 (K6-44) R63 000; Sandlo v Minister of Police (Corbett & Honey Vol VI, K6-138) R59 900; Mbotya v Minister of Police C&H Vol VI K6-143 R65 930; Letlalo v Minister of Police (28575/12) [2014] ZAGPJHC (28 March 2014) R110 000; Gobuamang v Minister of Police 2011 (6K6) QOD 85 (ZAGPJHC) R103 000; Minister of Safety and Security v Scott and Another 2014 QOD (7K6) 22 (SCA) R40 000; Prince v Minister of Safety and Security 2014 (7K6) QOD 56 (ECG)R30 000; Khumalo v Minister of Safety and Security 2015 (7K6) QOD 157 (KZD) R60 000; Kruger v Minister of Police 2016 (7K6) QOD 233 (GNP); Burford v Minister of Police (ECD) CA128/2015 R147 000); Assault: Groenewald v Ravenscroft 1978 (3) QOD 34 (C) punched in face and losing a tooth R23 000; Van Der Merwe v Minister of Safety and Security 2011 (6K6) QOD 34 (ECD) for a kick R5 000; Mhlambeli v Minister of Safety and Security 2012 (6K6) QOD 124 (ECG) for a punch in the face R12 000; Malicious Prosecution: M v Minister of Police (High Court Limpopo 1002/2012) R20 000; Minister of Safety and Security v Schubatch (437/2013) [2014]

ZASCA (216) (01 December 2014) R120 000 reduced to R10 000; Singatha v Minister of Police (284, 285/2012) [2015] ZAECBHC 19 (26 March 2015) R50 000.

[17] See Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 (DCLD) at page 287 D-E

[18] See the particulars of claim for each plaintiff

[19] Shatz Invrestments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (AD) at page 560 D-F, quoted with approval in Mia v Verimark Holdings (Pty) Ltd [2010] 1 All SA 280 (SCA) at page 289 f-g