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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES: TOMMY PETERSON PLAINTIFF

and

THE MINISTER OF SAFETY AND SECURITY DEFENDANT

• Registrar: 1173/2008

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 1-2/9/09

DATE DELIVERED: 23/9/09

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s): Mr S. Cole

• for the Respondent(s):

Instructing attorneys:

• Appellant(s): Du Preez, Potgieter and Trichardt of Somerset East and Wheeldon, Rushmere and Cole, Grahamstown

• Respondent(s): Mr M. Wolmarans of N.N. Dullabh and Co, Grahamstown

CASE INFORMATION -

• Nature of proceedings :Damages

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO: 1173/2008

DATE HEARD: 1-2/9/09

DATE DELIVERED: 23/9/09

NOT REPORTABLE

In the matter between:

TOMMY PETERSON PLAINTIFF

and

THE MINISTER OF SAFETY AND SECURITY DEFENDANT

The plaintiff’s home was entered by a group of policemen. He was assaulted by having pepper spray sprayed into his face and by being punched in the face. He was arrested and dragged from his home in only a pair of shorts. When he arrived at the police station he was assaulted again before being placed in a cell. He was arrested at about 20h00 and released at about 04h00. He claimed damages for unlawful arrest and detention and for the assaults on him. The policeman who effected the arrest and committed the assaults conceded the truth of the plaintiff’s version. On that version, the arrest and detention were unlawful as were the assaults. The defendant was accordingly liable for the plaintiff’s damages. In respect of the unlawful arrest and detention, R60 000.00 was awarded while an amount of R120 000.00 was awarded in respect of the assaults. The Registrar was requested to furnish copies of the judgment to the National Commissioner of the South African Police Service and the Provincial Commissioner of the South African Police Service for the Eastern Cape.

JUDGMENT

PLASKET J

[1] This case concerns the gross abuse of the fundamental rights of the plaintiff at the hands of a Sergeant S.L. Septoe of the South African Police Service (the SAPS) and a number of his colleagues, all of whom were stationed at Somerset East. It should go without saying that members of the SAPS are, like any other person in the country and irrespective of how powerful they may be, subject to the laws of the land and may not take the law into their own hands. That is a basic component of the rule of law, which is one of the founding values of our Constitution.¹

[2] When Sergeant Septoe testified, he conceded under cross-examination that his version of events was a pack of lies and that I must accept the plaintiff’s version as true. That version was given by the plaintiff, his partner, Rachel Michaels and an independent witness, Thembile Konze. It concerns the events of Sunday 25 November 2007.

[A] THE FACTS

[3] During the morning of 25 November 2007, the plaintiff and two friends indulged in a drinking session at his house. They were later joined by his next door neighbour, the father of Sergeant Septoe. At a point, Septoe senior became aggressive and slapped one of the plaintiff’s friends with the stump of his amputated arm. The plaintiff tried to calm the situation and, in the course of trying to control Septoe senior, he accidentally cut him with a knife, causing a small wound. Septoe senior accepted that this was an accident. The men continued to drink. Septoe senior left for a while but returned later. He apologised for the earlier incident and continued to drink with the plaintiff and his friends.

[4] Later, the plaintiff’s guests left and his partner, Ms Michaels, returned. He left the house to buy more alcohol. He and Ms Michaels consumed it and then went to bed. This was after 19h00 but before 20h00. The plaintiff had undressed and wore only a pair of shorts.

[5] He and Ms Michaels heard a loud noise which turned out to be the front door being forced open. A number of policemen, including Sergeant Septoe, entered their bedroom. Sergeant Septoe said that he had come to arrest the plaintiff for stabbing his father. The plaintiff told him that it had been an accident. When the plaintiff stood up, Sergeant Septoe grabbed him, punched him in the face and sprayed pepper spray into his face. When Ms Michaels said that he should leave the plaintiff alone, he sprayed pepper spray into her face too. (She instituted proceedings against the present defendant in the Magistrate’s Court, Somerset East in relation to this incident and was awarded R32 000.00 in damages.)

[6] With the help of his colleagues Sergeant Septoe dragged the plaintiff out of the house to his police van parked outside. As a number of police vans had arrived to arrest the plaintiff, this had drawn a crowd. As a result, a number of people who were gathered in the street witnessed the plaintiff being dragged from his home and placed in the police van clad only in his shorts.

[7] The plaintiff was taken to the police station. When he was behind the counter in the Charge Office, Sergeant Septoe assaulted him again by punching him in the face, kicking him on the jaw and hitting him on the back a number of times with a baton or stick. He ordered the plaintiff to clean up blood from his nose that was on the floor but the plaintiff refused.

[8] Sergeant Septoe then pushed him to the cells but on the way he kicked the plaintiff in the back. He locked him in a cell with three other men. The plaintiff said that he felt cold as he was still clad in only his shorts. (Ms Michaels testified that she took clothes to the police station for him a while later. When he was released, he was wearing these clothes.) The plaintiff was forced to sleep on a slab of concrete without a mattress and without blankets.

[9] At about 04h00 on Monday 26 November 2007, the plaintiff was released. He was served with a notice to appear in court on a charge of being drunk and disorderly. Reference is made in the notice to Act 10 of 2003. This is the Usury Amendment Act which has nothing to do with being drunk and disorderly. The conduct which was alleged to have constituted this crime was that ‘upon or about the 25^th day of November 2007 in the year 2007 and at (or near) Berg Street, Somerset East in the said district you did wrongfully and unlawfully been drunk in a public street namely in the district of Somerset East’. Not surprisingly, given this gobbledigook, when the plaintiff spoke to the public prosecutor the charge was withdrawn.

[10] On his release, the plaintiff walked home. On the same day he later went to the Andries Vosloo Hospital where he was examined and medication was prescribed for him. He also had colour photographs taken of his injuries that day. These photographs were handed in as exhibit ‘A’.

[11] The J88 form completed by the Dr L.L.P. Bayeni, who examined the plaintiff on 26 November 2007 at 14h00, reflects a wound on the upper left side of the head that was bruised and tender as well as a wound on the upper left jaw that was described as tender. What were described as ‘widespread tram-like abrasions’ of varying sizes were found on the plaintiff’s back from the shoulder blades down to the buttocks. These injuries, as well as the wound on the upper left side of the plaintiff’s head, are also evident in the photographs that were handed in. These injuries, said Dr Bayeni, were consistent with the plaintiff’s version that he was struck with a stick-like object. He prescribed painkillers and sleeping pills for the plaintiff. When the plaintiff was asked about the degree of pain he had experienced, he said that the pain was very severe for a few days but that it then began to abate, although he remained in pain for a few weeks. When he had finished the medication given to him by Dr Bayeni he got more painkillers from the local clinic.

[B] THE UNLAWFULNESS OF THE PLAINTIFF’S ARREST, DETENTION AND THE ASSAULTS UPON HIM

[12] On the plaintiff’s version -- which I accept and which was conceded by Sergeant Septoe to be true -- Sergent Septoe had no lawful authority to enter the home of the plaintiff and no lawful power to arrest him: no crime was committed in his presence², on the basis of only a telephonic report from his sister he could not have formed a reasonable suspicion that the plaintiff had committed a Schedule 1 offence³ and no other provision of s 40(1) of the Criminal Procedure Act 51 of 1977 is of any possible application -- and none is relied upon by Sergeant Septoe -- to justify the arrest of the plaintiff. There was certainly no basis for a reasonable suspicion that the plaintiff had been drunk and disorderly in a public street. Clearly, the proffering of that charge against the plaintiff was done in bad faith by the policemen concerned, who must have been acting in concert with Sergeant Septoe – and thus aiding and abetting his disgraceful and unlawful conduct. It is therefore clear that the arrest and subsequent detention of the plaintiff was unlawful.

[13] There is similarly no justification for the assaults upon the plaintiff: if the first assault was administered in order to effect his arrest, it was unlawful because the arrest was, itself, unlawful. If it was administered in order to overcome resistance to the arrest on the part of the plaintiff it was unlawful because the plaintiff, being subjected to an unlawful arrest, was entitled to resist. The second assault – at the police station – also cannot be justified and is unlawful.

[14] It was admitted that Sergeant Septoe acted at all material times in the course and scope of his employment as a policeman. In the result, the defendant is liable for the damages suffered by the plaintiff as a result of both the unlawful arrest and detention and the unlawful assaults on him. I turn now to the issue of quantum.

[C] QUANTUM: ARREST AND DETENTION

[15] The correct approach to the assessment of damages for unlawful arrest and detention was summarised by Erasmus J in Ntshingana v Minister of Safety and Security and another,⁴ as follows:

‘The satisfaction in damages to which plaintiff is entitled falls to be considered on the basis of the extent and nature of the violation of his personality (corpus, fama and dignitas). As no fixed or sliding scale exists for the computation of such damages, the Court is required to make an estimate ex aequo et bono. The authors of Visser and Potgieter’s Law of Damages 2^nd ed, 475 have extracted from our case law factors which can play a role in the exercise:

“The circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or ‘malice’ on the part of the defendant; the harsh conduct of the defendants; the duration and nature (eg solitary confinement) of the deprivation of liberty; the status, standing, age and health of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendants; awards in previous comparable cases; the fact that in addition to physical freedom, other personality interests such as honour and good name have been infringed; the high value of the right to physical liberty; the effect of inflation; and the fact that the actio injuriarum also has a punitive function.”

Neethling’s Law of Personality op cit, 130-1 adds the following factors:

“The circumstances surrounding the deprivation of liberty; its duration; and the presence or absence of an apology or satisfactory explanation. Naturally, satisfaction is increased if additional personality interests such as dignity and good name are involved.”

It is not necessary to burden this judgment with the references of the authority upon which the learned authors rely. It is perhaps necessary to note that not all the factors listed are present in the instant matter; that those that are present do not all have the same weight; that the list is not exhaustive; and that although the lists serve as a useful guide, they are not prescriptive.’

[16] At common law the unlawful deprivation of liberty, with its accompanying infringement of the right to human dignity as well, has always been regarded as a particularly grave wrong. Van Rensburg J said as much in Ochse v King Williams Town Municipality⁵ when he observed that the ‘right of an individual to personal freedom is a right which has always been jealously guarded by our courts and our law has always regarded the deprivation of personal liberty as a serious injury’. In Thandani v Minister of Law and Order⁶ he stated that in ‘considering quantum 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’.

[17] Now the rights to freedom⁷ -- including the right not to be ‘deprived of freedom arbitrarily or without just cause’⁸ -- and to human dignity,⁹ are fundamental rights entrenched in the Bill of Rights. The State is required to ‘respect, protect, promote and fulfil’ them as well as all other fundamental rights.¹⁰ They are also two of the founding values upon which the South African constitutional state is built.¹¹ Whether the constitutionalisation of these rights has had a bearing on the quantum of damages awarded when they have been infringed was dealt with in Minister of Safety and Security v Seymour¹² in which Nugent JA, speaking specifically of the right to freedom, made the point that ‘[t]he real import of the Constitution has not been to enhance the inherent value of liberty, which has been constant, albeit that it was systematically undermined, but rather to ensure that those incursions upon it will not recur’.

[18] In Olgar v Minister of Safety and Security,¹³ Jones J, in assessing damages for an unlawful arrest and detention held:

‘In modern South Africa a just award for damages 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.’

[19] I have considered the amounts awarded in cases such as Seymour, Seria v Minister of Safety and Security and others,¹⁴ Rudolph and others v Minister of Safety and Security and another,¹⁵ Smith and another v Minister of Safety and Security¹⁶ and Olgar v Minister of Safety and Security,¹⁷ as well as the cases mentioned in those matters. I am mindful of the fact that the ‘assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty’ and that they should serve as no more than a ‘useful guide to what other courts have considered to be appropriate’.¹⁸

[20] Bearing that in mind, I proceed to consider the factors relating to the nature and seriousness of the infringement of the plaintiff’s rights and the effect on him. The plaintiff is a seasonal fruit picker who works from time to time in the fruit orchards of the Boland. He was, when he was arrested, in the privacy of his own home. He was assaulted and dragged from his home clad only in a pair of shorts. This impairment of his dignity was compounded by the fact that people had gathered outside of his house and they witnessed his indignity as he was, in this state of undress, placed in a police van and driven away. At the police station, his humiliation continued and he was placed in a cell. Although it is not clear when precisely he was provided with the clothes that Ms Michaels brought for him, he spent some time in his shorts and nothing more. He was not provided with a blanket or a mattress and was forced to sleep on a hard concrete slab. He was released at 04h00, having spent about eight hours in custody. He was then required to walk home. In my view, when these factors are weighed, together with the malicious, highhanded, arrogant and brutal conduct of Sergeant Septoe, an award of R60 000.00 is justified.

[D] QUANTUM: THE ASSAULTS

[21] In determining quantum for general damages, I am called upon to exercise a broad discretion to award what I consider to be fair and adequate compensation. In so doing, I must: consider a broad spectrum of facts and circumstances connected to the plaintiff and the injuries suffered by him, including their nature, permanence, severity and impact on his life; take into account the tendency for awards now to be higher than they once were, as a result of changing values in our society, improvements in the standard of living and the fact that awards have traditionally been lower in this country than in many others; and allow myself to be guided by the broad patterns of awards made by courts in the past.¹⁹

[22] The approach to be taken when comparing awards made in similar cases has been restated by Brand JA, in De Jongh v Du Pisanie NO,²⁰ as follows:

‘Die benadering wat van oudsher deur hierdie hof gevolg word, is egter juis andersom … .Volgens hierdie benadering is die beginsel juis dat die vasstelling van nie-patrimoniële skade in die diskresie van die hof is. By die uitoefening van die hof se diskresie is vergelyking met toekennings in vorige sake ‘n nuttige hulpmiddel omdat dit darem vir die hof die breë parameters oftewel ‘n patroon aandui waarbinne sy toekenning tuisgebring moet word. Dit is ook ‘n nodige riglyn omdat konsekwentheid in toekennings ‘n inherente vereiste van billikheid is. Nietemin bly dit steeds ‘n riglyn. Dit vervang nie die hof se diskresie met ‘n letterknegtige gebondenheid aan die aangepaste waarde van vorige toekennings nie.’

[23] After having stated that the ‘stygende tendens van toekennings in die onlangse verlede is, soos ek alreeds gesê het, duidelik waarneembaar’, Brand JA proceeded to warn against attempting to ‘factor in’ the tendency with mathematical precision. ‘Op die ou end’, he held, ‘is die tendens maar net nog ‘n oorweging wat die hof geregverdig is om in ag te neem wanneer hy, by die uitoefening van sy diskresie, na vorige toekennings, veral in ouer sake, as riglyn verwys.’²¹

[24] The plaintiff was born on 6 July 1974. He was thus, at the time of the assaults on him, 33 years of age. He worked, as I have indicated above, as a seasonal worker in the fruit orchards of the Boland. He is single although he has a permanent relation with his partner, Ms Michaels.

[25] The plaintiff was first assaulted in his own home, Sergeant Septoe and his colleagues having forcibly entered the house. In the initial assault, the plaintiff was punched in the face and had pepper spray sprayed in his face. No steps were taken, either at his home or at the police station, to decontaminate his face from the effects of the pepper spray. The plaintiff was then dragged from his house and taken to the police station. There he was assaulted again by Sergeant Septoe who punched him in the face, kicked him on the jaw and hit him on the back a number of times with a baton or stick. To compound the indignity being heaped upon the plaintiff, Sergeant Septoe ordered him to clean up his own blood from the floor. In the circumstances it must have taken some courage on the part of the plaintiff to refuse to do this. His torment at the hands of Sergeant Septoe had not ended. Sergeant Septoe, while pushing the plaintiff to the cells, kicked him in the back. The plaintiff received no medical attention from the police while he was in their care.

[26] The effect of the assaults on the plaintiff is plain to see in the photographs that were handed in. It was not surprising that he was given medication for the pain that he was suffering. It will be recalled that the J88 form shows a wound on the upper left side of the plaintiff’s head and a wound on the upper left jaw. The ‘widespread tram-like abrasions’ on the plaintiff’s back were evident, on the photographs, from the shoulder blades down to the buttocks. The plaintiff suffered severe pain for a few days. Even though the pain began to dissipate, he remained in pain for a few weeks, requiring him to obtain more painkillers from the local clinic. Despite that, there is no indication that the plaintiff has suffered any permanent injury. Not surprisingly, however, the plaintiff stated that he had lost confidence in the police, that he was not happy with the treatment that had been meted out to him and that he felt ‘hartseer’.

[27] In my view, the assaults upon the plaintiff were sustained and brutal. When the factors that I have outlined above are taken together, an award of R120 000.00 for general damages appears to me to be justified.

[28] One final matter must be dealt with before I make an order. The conduct of Sergeant Septoe cannot be tolerated in a society such as ours that is founded on the values, inter alia, of human dignity and the advancement of human rights and freedoms.²² Sergeant Septoe, by his actions, betrayed the Constitution and the trust that citizens are entitled to repose in a policeman, whose duty, after all, is to protect the weak and the vulnerable. He behaved like a thug and so, it would appear, did his colleagues who aided and abetted his disgraceful conduct. Policemen like these ought to be disciplined. I venture to suggest that they should have no place in the SAPS. I intend making an order in which I request the Registrar to provide the National Commissioner of the SAPS and the Provincial Commissioner of the SAPS for the Eastern Cape with copies of this judgment so that appropriate steps can be taken against Sergeant Septoe and his colleagues.

[E] THE ORDER

[29] The following order is made.

(a) Judgment is entered in favour of the plaintiff.

(b) The defendant is ordered to pay the plaintiff:

(i) R60 000.00 in respect of damages for unlawful arrest and detention;

(ii) R120 000.00 in respect of damages for the assaults upon him;

(iii) interest on the amount of R180 000.00 at the legal rate from a date 14 days after the date on which this judgment is handed down to the date of payment; and

(iv) costs of suit, such costs to include the qualifying expenses of Dr. L.L.P. Bayeni and the costs of the plaintiff’s photographs, exhibit ‘A’.

(c) The Registrar is requested to serve copies of this judgment, by registered mail, on the National Commissioner of the South African Police Service and on the Provincial Commissioner for the Eastern Cape Province of the South African Police Service.

_______________________

C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES:

For the plaintiff: Mr S. Cole instructed by Du Preez, Potgieter and Trichardt of Somerset East and Wheeldon, Rushmere and Cole, Grahamstown

For the defendant: Mr M. Wolmarans of N.N. Dullabh and Co, Grahamstown

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