Sibeko v Minister of Police (02554/2014) [2021] ZAGPJHC 702 (19 November 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 02554/2014

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

In the matter between:

SIBEKO SIPHO SIMON

Plaintiff

and

MINISTER OF POLICE

Defendant

JUDGMENT

Delivered: By transmission to the parties via email and uploading onto Case Lines the Judgment is deemed to be delivered. The date for hand-down

is deemed to be 19 November 2021.

SENYATSI J:

[1] This is a claim for wrongful arrest and detention by members of the South African Police.

[2] The merits of the case were finalised by Dreyer AJ on 12 May 2020 in terms of which the Defendant was found to be liable. The quantum on general damages was postponed sine die and is now the subject of this judgment.

[3] The Plaintiff is Simon Sipho Sibeko, an unemployed, 63-year-old, adult male who resides in Orlando West, Soweto, Gauteng Province.

[4] The Defendant is the Minister of Police who is cited in official capacity as the Minister responsible for the conduct and affairs of the South African Police.

[5] The Plaintiff testified that on or about 7 February 2011 he was arrested at Chris Hani Baragwanath Hospital, Soweto Gauteng. He states that while admitted and receiving medical care, he was maliciously arrested or alternatively arrested without a warrant by members of the South African Police Services (“SAPS”) and was charged with armed robbery. When the arrest occurred the police were acting in the course and scope of their employment within the Defendant.

[6] The Plaintiff was detained on 7 February 2011 and held in custody until 4 March 2011 at Chris Baragwanath Hospital, Soweto and/or at Orlando Police Station.

[7] He appeared in the Johannesburg Magistrate Court on 4 March 2011 and charges preferred against him were withdrawn.

[8] The Plaintiff contends that he suffered damages and implores upon this Court to order the Defendant to pay him the claimed sum of R1 million.

[9] In his testimony, the Plaintiff denied his involvement in the alleged robbery and maintained that he was wrongfully arrested. His version is that he went to Chris Hani Baragwanath Hospital (“Baragwanath”)

on 23 January 2011 for treatment of an injury he sustained on his left hand on 22 January 2011. The hospital medical staff wanted to admit him for further treatment but he declined as he had to attend to the funeral of his partner’s sister’s son on 23 January 2011. He was ordered to return on 7 February 2011 for a follow up treatment.

[10] On 7 February 2011, he left his home at around 7h30 for the second medical consultation at Baragwaneth. After further examinations the medical team decided to admit him as an in-patient.

[11] He was admitted in ward 9 which he described as an open ward, full of other patients. He estimated that there were about 30 patients at the time and as the ward was fully occupied, he was admitted in what he referred to as an overflow room within the ward.

[12] At around 19h00 he was confronted by four police officers two of whom were in police uniform and the other two in private (civilian) clothing whilst in the ward. The police had not sought permission from the nurse before they entered the ward. The nurse confronted them about it, and they briefly left with her before returning to interview him. He recalled giving the officers his contact telephone number.

[13] Later on, that same evening, the police officers returned and questioned him whether he knew a person named Mr Lungi Sisulu, to which he responded positively as Mr Sisulu was his friend. After the admission he was arrested and chained to the hospital bed. Part of the shackles were tied to the ankle on one of his leg and another to the hospital bed. He was arrested by two detectives who were dressed in private clothing. He was left behind with two uniformed police officers who were on guard to ensure he did not escape and that was the beginning of his trauma.

[14] He was in hospital for 3 weeks and police officers were on guard for the duration of his hospital stay. He was under the constant guard of the police officers who rotated according to shifts to guard him. They always sat next to him in the ward in full view of all patients, medical staff and visitors.

[15] The plaintiff further testified how he was deprived of privacy and dignity. He detailed how if he needed to relieve himself or have a shower, he would be unchained from the hospital bed made to carry the shackle part of which was always on his leg ankle. He was not allowed to close the toilet door when he relieved himself. He was also not permitted to have a shower behind a closed door, and he expressed how completely traumatic the experience was for him.

[16] The general demeanour of the police officers was not acceptable. The plaintiff testified that they were rude and often treated him in a degrading and demeaning manner. He felt humiliated and dehumanised by the whole experience.

[17] In spite of the unfavourable treatment he insisted that he was not involved in the alleged robbery. When questioned about the effects of his arrest on him and his family, the plaintiff stated that he was 53 years of age at the time of his arrest and his partner and 15-year-old son who often visited him at the hospital also witnessed the degrading manner in which he was being treated.

[18] His cellular phone was confiscated by the police during his arrest and his wife had to bring him, another phone. He further detailed how his son was traumatised by seeing him chained to the hospital bed under police guard. He could not recall the exact date of his discharge from hospital.

[19] In addition the Plaintiff testified that he was often not allowed to go outside, unlike other patients, he remained chained to the hospital bed. During his stay at the hospital, he was visited by his wife and child whilst, chained to the bed. He fell humiliated by the experience.

[20] After he was discharged, he was chained on both legs with fire arms pointed at him by the two female police officers and marched into the back of a police van in full view of all the patients and the hospital staff. He confirmed to this court that he was given medication by the hospital staff.

[21] He testified about his journey to the Orlando Police Station, detailing how the van drove at a high speed having no regard to his physical condition at the time. He struggled to hold on to something and meanwhile the two female police officer continued to point their firearms at him. Upon his arrival his medication was taken away from him before he was sent to the holding cell.

[22] He spent two days at the police holding cells at the Orlando Police Station. He was only allowed to take his medication after reporting to a senior police officer that his medication had been taken away from him.

[23] He only appeared at the Johannesburg Magistrate Court on the third day. He found his co-accused whom he met for the first time at his court appearance. When the case was called he was told he could go home and he was never contacted by the police ever again.

[24] His evidence about his arrest experience was unchallenged. Counsel for the Defendant did not cross-examine the Plaintiff.

[25] The Plaintiff testified that he felt humiliated and that the experience of being arrested hurt him deeply.

[26] The Defendant did not call any witnesses in rebuttal of the Plaintiff’s version, regarding quantum. Both counsels were invited to provide written heads of arguments to assist the court on the determination of quantum to be awarded to the Plaintiff. The court is grateful for the assistance from both counsel.

[27] The personal liberty of a person has been recognised in our common law and it is now guaranteed protection in our Constitution. The Constitution is the supreme law of our Republic and recognises the human dignity, the achievement of equality and advancement of human rights and freedoms.[1] Furthermore the Constitution states that the Bill of Rights is a cornerstone of democracy in South Africa. The Bill of Rights enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.[2]

[28] The State must reflect, protect, promote and fulfil the rights in the Bill of Rights. The Rights in the Bill of Rights are subject to the limitations contained or referred to in Section 36, or elsewhere in the Bill.[3]

[29] The law is settled that an arrest of a person constitutes an interference with the liberty of the individual concerned and it is therefore fair and just to require that the person who is arrested or cause the arrest of another person should bear the onus of proving that his action was justified.[4] As the merits have been dealt with by another court, I will not dwell on this principle.

[30] The approach in determining what award should be made on the general damages one of the guidelines the court should follow is the awards for general damages made in previous cases. However, our courts have cautioned that each case must be decided on its own merits.

[31] In Minister of Safety and Security v Tyulu[5] the court held that 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. The court further held that it is crucial that serious attempts be made to ensure that the damages awarded are commensurate with injury inflicted. Our courts should be careful to ensure that the awards they make for such interactions 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.

[32] Our courts have been cognisant of the fact that it is impossible to determine an award of damages for this kind of claim on mathematical accuracy. It is also acknowledged by our courts that although previous awards made in similar circumstances, serve as guidance, the approach if slavishly followed can prove to be treacherous. As a result, the correct approach is to have regard to all the facts of each case and determine the quantum of damages on such facts.[6]

[33] By way of analysis of previous awards, the case of De Klerk v Minister of Police[7] may provide guidance. The plaintiff in that case was unlawfully arrested and detained for eight days despite the investigating

officer’s recommendation that bail be set at R1000. He was aware that the plaintiff would not be released on bail at his first appearance in court and such appearance was a mere formality in busy remand court. He was remanded within two hours of arriving at court, in custody. The court awarded damages in the sum of R300 000 in 2020.

[34] In Duma v Minister of Police and Another[8] the plaintiff sued for damages form the first defendant in the sum of R250 000 for unlawful arrest and a further R250 000 for her unlawful detention. She was unlawfully arrested for fraud and in fact she was the true owner of identity number issued in duplicate and was further detained for nine days when charges were withdrawn. She was awarded R300 000 in 2016 against the first defendant.

[35] In Van der Laarsee v Minister of Police and Another[9] the Plaintiff was arrested without a warrant and detained at Beit Bridge Police Station and thereafter at Musina Police Station for three days until he was released on bail. Charges against him were withdrawn and an award of R280 000 was made in his favour.

[36] It has been submitted on behalf of the Defendant that the reason the Plaintiff was arrested was because he was pointed out by one accused at the hospital as having been involved in the robbery. This submission is without merit as the Plaintiff’s evidence which was not challenged by the Defendant was that he was asked whether he knew Mr Lunge Sisulu and when he admitted that he knew him as a friend, he was placed under arrest. The Plaintiff stated that he met the accused for the first time since his arrest at court. There was no mention of him being pointed out by Mr Lungi Sisulu in his evidence in chief which remain the only version before this court.

[37] Our court have listed factors relevant when a determination of the appropriate awards is to be made in unlawful arrest and detention claims. In Rahim v Minister of Home Affairs[10] the court held that the following factors should be considered in the award for damages for deprivation of liberty, namely:

(a) the circumstances under which the deprivation of liberty took place which would include the fact that the arrest was not arbitrary but was preceded by brutality and torture by the arresting officer;

(b) the conduct of the defendants the arresting officer continued to attempt to influence the prosecutor after the unlawful arrest to ensure the applicants would remain in detention despite knowing that such arrest was unlawful;

(c) the nature and duration of deprivation.

I am of the respectful view that the Plaintiff was subjected to a serious humiliation without reason and that he deserves to be

compensated for such serious infraction.

[38] It has been submitted on behalf of the Defendant that the three weeks spent in hospital for treatment of injuries was not due to any fault of the arresting officers as the injuries were not because of police conduct. I am not in agreement with this submission. The Plaintiff was arrested whilst receiving treatment at hospital. To all intent and purposes, he was in custody. He was chained to the hospital bed, guarded by fully armed police officers who rotated their guarding duties on shifts. To argue that the detention was not for three weeks at the hospital is to ignore the obvious facts.

[39] He was denied personal liberty and was treated with disdain. He was not afforded any respect as a human being. In fact, the Plaintiff is fortunate not to have serious health complications owing to the experience. The police officers did not even afford him the courtesy of privacy when relieving himself or having a shower. It is not difficult to assess how the plaintiff felt by such humiliation in a public hospital in full view of other patients, hospital staff and his wife and son who regularly visited him. Just because a person is a suspect in a crime does not render him less human in the eyes of the law.

[40] To argue on behalf of the Defendant that the Plaintiff’s detention would be regarded as only three days, is in my respectful view, trivialising the seriousness of depriving a person of his liberty. All humans are equal before the law irrespective of their social standing, gender, culture or their religious beliefs. When an assessment of the award is determined by courts, it matters not whether a person is employed or not. No price tag can be placed on personal liberty. The aggrieved persons ought to receive equal treatment before the law. I am of the view that the submission that for determination of the award, only three days should be considered which are after the Plaintiff was discharged from hospital has no merit and should be rejected.

[41] The submission made on behalf of the Defendant fails to take into account that the Plaintiff was perceived to be a robber by other patients, medical staff and of course his family. He has valid reason to feel aggrieved due to his demeaning arrest at the hospital.

[42] The submission was also made on behalf of the Defendant that the appropriate award should be R80 000. I am not in agreement with this contention. The contention fails to have regard to the factual matrix of how the arrest was effected and malicious treatment meted out to the Plaintiff. Being denied the right to privacy especially when one is not in good health is in my view, a serious infraction. The Plaintiff was not even allowed to walk outside of his ward like other patients. This is just one of the degrading ways he was treated and one wonders how he psychologically coped with such trauma knowing

that he was innocent. Allowing a human being to have a shower while chained and being forced to carry the chain with one hand and

showering in full view of police officers on guard in a public hospital is an experience that is too hurtful for any human being.

[43] Having considered the evidence, the approach to be followed in determining the appropriate award, I make the award as set out below:

ORDER

[44] The following order is made:

(a) The Defendant is ordered to pay the Plaintiff the sum of R550 000

(b) The Defendant is ordered to pay interest at the rate of 15.5% per ; annum from the date of this order until date of payment

(c) The Defendant is ordered to pay costs including counsel’s fees.

SENYATSI ML

Judge of the High Court of South Africa

Gauteng Local Division, Johannesburg

REPRESENTATION

Date of hearing: 26 July 2021

Date of Judgment: 19 November 2021

Applicants Counsel: Adv T Tshabalala

Instructed by: Houghton Harper Inc.

Respondent’s Counsel: Adv N Nharmuravate

Instructed by: The State Attorney

[1] See section 1(a) of the Constitution of the Republic of South Africa Act No 108 of 1996 (“The Constitution”)

[2] See section 7(1) of the Constitution

[3] See section 7(2) and (3) of the Constitution

[4] See Minister of Law and Order v Hurley [1986] ZASCA 53, 1986 (3) SA 568 (A)

[5] 2009(5) SA 85 (SCA) at para 26

[6] See Minster of Safety and Security v Seymour 2006 167 SA 320 (SCA) 325 at para 17

[7] (CTT 95/18) [2009] ZACC 32

[8] [2016] ZAGPPHC 426 ([2016] JDR 1102 (GP))

[9] 2013 JDR 2432 (GNP)

[10] [2015] ZASCA 92; 2015 (A) 433 (SCA)