Segacwi v Minister of Justice and Another (88/2008) [2010] ZANWHC 51 (16 September 2010)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 88/2008

In the matter between:

MOTHUSIOTSILE OCTOVIUS SEGACWI …...................................................PLAINTIFF

and

MINISTER OF JUSTICE …....................................................................1ST DEFENDANT

MINISTER OF CORRECTIONAL SERVICES …...................................2ND DEFENDANT

____________________________________________________________________________

JUDGEMENT

MPSHE AJ.

A. INTRODUCTION

[1] This is an action claiming damages for unlawful detention. The plaintiff seeks damages in the amount of R4 000 000.00 (four million rand).

B. BACKGROUND

[2] On 19 September 2002, the plaintiff and one Kgabisho Phineas Letlhogeloa appeared in the Regional Court, Taung.

[3] Both were charged with stock theft. Both were convicted as charged and sentenced to eight years imprisonment each.

[4] The plaintiff served the term of imprisonment at the Christiana and Lichtenburg Correctional Centres. The plaintiff was finally released on 15 November 2005.

[5] In the meantime, before release, the plaintiff’s co-accused filed an appeal in this Court. The said appeal was then heard on 13 August 2004. The plaintiff was not a party to the appeal.

[6] The sentence of eight years was then altered to six years imprisonment, two years thereof suspended on relevant conditions with

regard to the appellant.

[7] The Court then extended the success of the appeal to the plaintiff. However, a period of three years was conditionally suspended in favour of the appellant. In effect the plaintiff was then to serve only three years imprisonment.

[8] The plaintiff became aware of the success of the appeal only on 14 November 2005. The Court is not aware of any reasons for such late notification in terms of the plaintiff. One way is to ascribe this to a departmental bungle on the part of the defendants.

[9] The plaintiff testified and thereafter closed its case. There was no corroborative evidence led.

[10] The defendants then applied for absolution from the instance. This was denied.

[11] The defendants then tendered viva voce evidence of one Ian Christiaan Bester. He testified in his official capacity as an employee of the Department of Correctional Services. This concluded the evidence of the defendants.

C. EVALUATION OF THE EVIDENCE LED

[12] The plaintiff, a 38 years old male person, whose highest academic qualification is standard 5 (grade 7), testified as follows.

[13] That he was convicted and sentenced on a charge of stock theft on 19 September 2002 and was sentenced to effective eight years

imprisonment.

[14] That he was accused 2 in the criminal trial, whilst Phineas Letlhogeloa was accused 1.

[15] That he started serving the sentence in Pudumong, then Christiana then Mafikeng and finally Lichtenburg Correctional Centres.

[16] That his counsel, Mr Nel, came to see him on 11 November 2005 and he was then released on 15 November 2005 without been given reasons as to his release.

[17] That in total, he was in detention for a period of three years, one month and twenty eight days (3yrs, 1 month and 28 days).

[18] That he was summoned to the parole board around October 2005, whereat he was told as to how to behave upon release from custody.

[19] Mr Senatle, counsel for both respondents, revealed under cross-examination that the plaintiff did not and could not testify to the unlawful detention. This happened despite the allegations in the particulars of claim to the summons, at paragraph 13 thereof. This paragraph, for completeness sake, alleges one year and eight months as unlawful detention.

[20] The plaintiff stated in reply that he was unlawfully detained for three years and one month, then one year eight months, and pressed further the answer was one year. He finally conceded that he actually does not know the period of unlawful detention. That this period was computerised and conveyed to him by his counsel, Mr Nel.

[21] Still under cross-examination, he replied that he cannot comment or respond to the submission that he was lawfully detained until 15 November 2005. The plaintiff testified in a satisfactory and honest manner. His credibility is not questionable. It is indeed so that he got confused around the period of the alleged unlawful detention. I find it difficult if not impossible to let this temper negatively with his credibility. Given his academic qualifications and the fact that he was wholly dependant on his legal representative for the calculations, I find him a credible witness.

[22] The defendants then tendered evidence of Ian Christiaan Berster, a senior officer at the Department of Correctional Services, stationed at the Lichtenburg Correctional Centre.

[23] He testified that he was the custodian of prisoners’ records.

[24] That the plaintiff was before the parole board on 22 March 2005. That he was not released on parole and that the plaintiff was to appear again on 31 March 2007.

[25] That before the plaintiff’s reappearance before the board, a further profile for reconsideration was to be tabled on 31 December 2006.

[26] That the centre did not receive any documentation for the release of the plaintiff before 15 December 2005.

[27] That there was a general amnesty on 30 May 2005.

[28] That the plaintiff was not unlawfully detained. This witness further revealed, under cross-examination, that the plaintiff served a further one month and twenty eight days more than the sentence imposed. It is not disputed that the original sentence was reduced to three years on appeal. I further make a finding that the second defendant was not aware of the amended sentence of three years until on 14 November 2005, resulting in the plaintiff’s release on 15 November 2005. This witness was credible in all respects.

D. ISSUES TO BE DETERMINED

[29] I have made a finding that the detention is not in dispute, that the second defendant received the appeal success notification very late on 14 November 2005. That the sentence of eight years imprisonment was reduced to six years, half of which was conditionally suspended.

[30] This Court is to decide on the lawfulness or otherwise of the detention of the plaintiff and the period thereof. If I find the detention to have been unlawful, the damages applicable in the circumstances will have to be determined.

E. THE LAW APPLICABLE

[31] It is trite that no person should be deprived of his/her right to freedom, save through the process of the law. Section 12(1)(a) of the Constitution provides:

“(1) 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.”

In the case of Zealand v Minister of Justice & Constitutional Development and Another [2008] ZACC 3; 2008 (4) SA 458 (CC) the following at paragraph 24, line 2, p. 468 is apposite:

“There is another, more important reason why this court should rule in the applicant’s favour. The constitution enshrines the right to freedom and security of person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom.”

See also Shoba v Minister of Justice 1982 (2) SA 554 (C). The plaintiff is subjected to the provisions of the Correctional Services Act 111 of 1998. I will refer to the relevant sections in due course.

F. MERITS

[32] The plaintiff was convicted and sentenced in the Regional Court on 19 September 2002 to eight years imprisonment.

[33] As a result of a successful appeal on sentence launched by the plaintiff’s co-accused, the sentence was reduced to three years imprisonment. The amended sentence took effect on 13 August 2004. Simple calculations indicate 18 September 2005 as the date of possible release after serving a period of three years imprisonment.

[34] The plaintiff was actually released from detention on 15 November 2005. It is clear that he should have been released one month twenty eight days earlier. Section 73(3) of the Correctional Services Act 111 of 1998 provides:

“A sentenced offender must be released from correctional centre and from any form of community corrections imposed in lieu of part of a sentence of incarceration when the term of incarceration imposed has expired.”

[35] I need not delve much on this, save that compliance with the provisions of this section is lacking. In the Zealand case supra at 477 paragraph 53, the following is apposite:

“I accordingly hold that the breach of s. 12(1)(9) is sufficient, in the circumstances of this case, to render the applicant’s detention unlawful for the purposes of a delictual claim for damages. That will be the most effective way to vindicate the applicant’s constitutional right. I expect that to be the case in most instances of unlawful detention.”

[36] Mr Senatle submitted that the plaintiff was not unlawfully detained. He finds support for this submission in section 73(1)(a) of the Correctional Services Act to this effect:

“A sentenced offender remains in correctional centre for the full period of sentence.”

I do not agree with this submission. It is uncontradicted that the plaintiff’s “. . . full period of sentence” ended on 17 September 2005 but was released on 15 November 2005.

[37] Mr Nel submitted that the plaintiff was entitled to parole. Further that had he, the plaintiff, been called to appear before the parole board he would have been released on 19 March 2004.

[38] Based on non-appearance before the parole board, he submitted that the period of unlawful detention is one year eight months. He further argued that the period is three years. I find no basis for this submission. It would seem that Mr Nel is moving from the premise that appearance before the parole board in accordance with section 75 of the Correctional Services Act guarantees release.

[39] This is a misdirection in that the parole board has a discretion. Section 75(1)(a) uses the word “may” and not “shall”.

[40] The plaintiff did appear before the parole board on 22 March 2005, but was not granted parole. This demonstrates the discretion the board has. I find no basis for the submission by counsel for the plaintiff that had the plaintiff appeared before the board, the plaintiff would have been released. I cannot make a finding that the plaintiff would have been released without sufficient evidence to that effect.

G. ONUS

[41] It is trite that the defendants bears the onus to disprove the unlawfulness of the detention. In Minister of Law & Order and Another v Dempsey 1988 (3) SA 19 (A) at 38B the following is stated:

“I accept, of course, that the onus to justify an arrest is on the party who alleges that it was lawfully made and since an arrest can only be justified on the basis of statutory authority, that the onus can only be discharged by showing that it was made within the ambit of the relevant statute.”

The same conclusion is arrived at in the Minister of Safety & Security v Du Plessis 2010 (1) SACR 49 ECG as follows:

“As it is our law places the onus on the arrester and not on the person detained.”

See also Minister van Wet en Orde v Matshaba 1990 (1) SA 280 (A) at 284; and Zealand supra at 468D paragraph 25.

[42] The defendants did not discharge this onus. No evidence was tendered to justify the further detention of one month twenty eight days (1 month 28 days).

H. QUANTUM

[43] Having found that the plaintiff was unlawfully detained, I now have to consider the appropriate damages.

[44] The plaintiff claims delictual damages emanating from the unlawful detention. I need only mention that the unlawful detention

established a breach of the Constitution. This constitutional breach, I am satisfied, qualifies awarding of damages.

[45] The awarding of delictual damages lies in the judicial discretion of the court. In embarking on this exercise of determining fair and adequate compensation, use is made of previous cases. In Minister of Safety & Security v Seymour 2006 (6) SA 320 (A) at 324F the following is apposite:

“The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate, but they have no higher value than that.”

[46] I had access to numerous cases by way of comparison. I paid special attention to cases of, inter alia, Hofmeyer v Minister of Justice & Another 1992 (3) SA 108 CPA; Shoba v Minister van Justisie 1982 (2) 554 (CPA); and the Zealand case supra. The case of Zealand can be said to be very close if not similar to the current case.

[47] The plaintiff did not present evidence before me pertaining to the treatment and/or living conditions in prison. I have no evidence indicating or suggesting any form of inhumane treatment. I have no evidence of any financial loss suffered during the said unlawful detention. The only information before me is that the plaintiff is 38 years of age, unmarried and acquired grade 7 academic qualification.

[48] Given the period of unlawful detention and in the absence of any evidence in the determination of damages, I rule that an amount of R2 000.00 (two thousand rand) per day is fair and adequate in the circumstances.

[49] I consequently order as follows:

a) The defendants are ordered to pay the plaintiff an amount of R116 000.00 (one hundred and sixteen thousand rand) damages jointly and severally, the one paying the other to be absolved;

b) Interest at the rate of 15.5% per annum from the date of judgement to the date of payment; and

c) The defendants to pay costs.

__________________

M.J. MPSHE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 AUGUST 2010

DATE OF JUDGMENT : 16 SEPTEMBER 2010

COUNSEL FOR PLAINTIFF : ADV I.J. NEL

COUNSEL FOR DEFENDANTS : DR S. SENATLE

ATTORNEYS FOR PLAINTIFF : GERHARD MAREE ATTORNEYS

(Instructed by ANDRE POTGIETER ATTORNEYS)

ATTORNEYS FOR DEFENDANTS : STATE ATTORNEY