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HIGH COURT OF SOUTH AFRICA

NORTH GAUTENG PRETORIA

 

Case No.: 21008/04

Date: 31 August 2009

 

Mofokeng Mpaesinah..................................................................................................................Plaintiff

 

And

 

Minister of Safety and Security.......................................................... ............................... .Defendant

 

JUDGMENT

SAPIRE, AJ:

 

The plaintiff has sued the defendant who is the representative of the government, for damages in an amount of R5 900 000, 00 for wrongful arrest and detention. The amount is of course fantastic and bears no relation to amounts which have been awarded in like cases the past.

During the course of the trial the defendant admitted that the arrest was unlawful. The only question left for decision was the amount of damages to be awarded.

An important factor in assessing damages is the length of the detention which followed on the unlawful arrest. The arrest took place on the 13^th of August 2003. Plaintiff’s first appearance in court was on the 15^th of August. She was then remanded in custody. No thought was then given as to whether her arrest had been lawful. She was not released on bail until the 1^st of September 2003.

For the defendant it was argued, with reference to Isaacs vs The Minister van Wet en Orde, [1996] 1 All SA 343A that once the plaintiff was remanded in custody by order of the magistrate the detention was no longer unlawful. It follows so the argument ran that the length of detention for which the plaintiff was to be compensated was only the short period following her arrest until her appearance in court.

This argument overlooks the fact that a consequence of an unlawful arrest is that the victim will be in custody until released by order of court either on bail or on a finding of not guilty. The fact that the detention becomes lawful in the sense that the terms of the remand authorises the authorities to continue the detention of the person concerned does not detract from the fact that such continued detention is a foreseeable and natural consequence of the initial unlawful arrest.

The award which I will make in this matter is on the basis that the plaintiff was in detention following on the unlawful arrest, for a period of 20 days.

The plaintiff described the conditions of her detention and painted a dismal picture of the detention cells in which she was held.

She also described the uncouth circumstances of her arrest. She was awoken somewhere around 1 o’ clock in the morning and both versions had to deal with the arresting officer while in a state of undress covered only by a revealing nightie. Before being taken into custody she was given an opportunity to get dressed. There was really no reason for the arrest to be effected at that time or atall..

It is also clear that the reasons for her arrest were stated if at all without any detail so as to enable her to answer the allegations. The charges which were put to her on her appearance at court alleged that she was alone and personally involved in an armed robbery and the discharge of a fire-arm. There was in fact no evidence to support these charges and at best for the defendant the arresting officer indicated that in his opinion she was connected with the commission of the offence. The information on which this was based was what was said to be double hearsay in that the persons who gave him the information obtained it from other persons whom the police officers had not yet interviewed.

In making an award on damages in this case I am guided by the judgment in The Minister of Safety and Security v Seymour, 2006 (6) SA 320 (SCA). The factors to be taken into consideration were examined at some length by Nugent JA who delivered the judgment. He pointed out that awards made in previous cases could be a useful guide to what other courts have considered to be appropriate but have no higher value. Awards in each case have to be evaluated on the special facts there pertaining.

In this case the manner in which the arrest was affected is important and the protracted detention in unsavoury conditions plays an important part.

There is nothing special about the social status of the plaintiff which affects the compensation to which she is entitled. Her shock humiliation suffering and inconvenience cannot be overstated. The period of her detention, (19 days) is considerably longer than that which Seymour (the plaintiff in the last cited case) had to undergo. For this reason the award will be substantially higher. An amount of R150 000 appears to be fair.

There will be judgment in favour of the Plaintiff for

 

1.                     Payment by the Defendant to the plaintiff of R150 000

2.                     Interest on that amount calculated at 15.5% per annum from date hereof to date of payment

3.                     Costs of the suit

 

SAPIRE, AJ:

 

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