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Reportable:                                               YES / NO

Circulate to Judges:                                 YES / NO

Circulate to Magistrates:                        YES / NO

Circulate to Regional Magistrates:       YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

                                                                                       CASE NO: 1334/15

In the matter between:

JOHANNES MOKGETHWA GABANATLHAKE                                  Plaintiff

And

MINISTER OF POLICE                                                                    Defendant

JUDGMENT

DJAJE J

[1] The Plaintiff instituted an action for three claims of damages against the Defendant, claim one is for unlawful arrest and detention in the amount of R300 000-00, claim two for assault in the amount of R200 000-00 and claim three for R4 000-00 being the value of the confiscated meat from the Plaintiff upon his arrest. Plaintiff abandoned claim three and only proceeded with claim one and two.   The Defendant conceded the merits 100% in favour of the Plaintiff in both claims. The only issue for determination was quantum.

Background

[2] The stated case is that Plaintiff is a fifty four year old farmer, married with seven children. He only studied up to grade three. He was arrested at his house in the presence of his cousin and felt humiliated by the arrest. He was detained for seventy three hours in a cold cell with no less than ten inmates. He did not feel safe and there was no privacy for using the toilet in the cell. The toilet was not clean and blocked. He only had one blanket full of lies to sleep on with no mattress. There was not enough food. As a result of the arrest he felt worthless and have a low self-esteem. He is now seen by the community as a criminal and struggles to do farming business. His family and children are teased about him being a criminal.

[3] In relation to the assault by the members of the South African Police Services he suffered injuries on his head, face and knee. It took him three months to fully recover from the said injuries. Currently he still suffers from headaches.  

Issue

[4] As stated above in this judgment the only issue for determination is the quantum.

Submissions

[5] The submission for the Plaintiff was that he is entitled to compensation as he was deprived of his freedom for seventy three hours. Further that he was assaulted for no apparent reason by members of the police acting within their scope of employment with the Defendant. The submission for the Plaintiff was that in respect of claim one the fair amount to be awarded is two hundred thousand rand ( R200 000-00). In support of the amount to be paid counsel for the Plaintiff referred to a few judgments. In the judgment of Landman J in the matter of Emmanuel Tlhatlhaganyane, case no. 1661/09 date of judgment 14 January 2013 ( North West High Court) an amount of R140 000-00 was awarded to the Plaintiff who was arrested and detained for 19 hours. The Plaintiff in that case was a senior at the mine and was arrested in front of his subordinates. The award in Seane v Minister of Safety 2015 ZANWHC 75 was R64 000-00 for 24 hours. In a more recent case of Mathe v Minister of Police 2017 ZAGPJHC 133- 2017 (4) ALL SA 130 the award was R120 000-00 for detention of 37 hours.

[6] In relation to claim two of assault the submission was that an amount of one hundred thousand rand (R100 000-00) is appropriate. In support of this reference was made to the case of Peterson v Minister of Safety QOD 6 K6-1 where an amount of R120 000-00 was awarded for a wound on the upper left side of the head as a result of an assault by the police. An amount of R80 000-00 was made in the case of Bantu v Minister of Police [2014] ZAGPJHC 344 (21 November 2014) for bleeding nose, swollen eyes and chest pains.

[7] The Defendant’s submission was that what happened to the Plaintiff cannot be replaced by money. Therefore an amount of forty thousand rand (R40 000-00) is appropriate in this case. In support of the Defendant’s submission Counsel referred me to two cases. In the case of Minister of Safety v Simo 2007 (1) ALL SA 558 (SCA) where the Plaintiff was awarded R90 000-00 for five days detention. In Solomon v Visser & Another 1972 (2) SA 327 (C) a forty eight year old business man was awarded R4 000-00 for seven days detention. In both cases no reference made to the current value of the two awards.

[8] As far as the claim two is concerned the Defendant argued that the amount to be awarded should be included in that of the arrest and detention as it was done in the case of Ngema v Minuster of Police case no. 50811/2011 delivered on 24 May 2012. In that case the court awarded an amount of R40 000-00 for both detention and injuries of small haemorrhage of both eyes, tenderness on the neck and right lower chest, two small lacerations on the left hand and bruising on the right knee and leg.

Law

[9] In the matter of Strydom v Minister of Safety and Security and Another (31353/2007) [2014] ZAFSHC 73 (28 May 2014) the following was stated:

“[12]    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. 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 quantum of damages on such facts.”

[10] In relation to deprivation of freedom the following was said in Takawira v Minister of Police (A3039/2011) [2013] ZAGPJHC 138 (11 June 2013):

“29.     A delictual claim for damages may also be brought in terms of Section 12(1) (a) of the Constitution. By definition such a claim is based on the unreasonable and unjustifiable infringement of an individual’s right not to be arbitrarily deprived of freedom or to be so deprived without just cause. See Zeeland v Minister of Justice and Constitutional Development & Another, [2008] ZACC 3[2008] ZACC 3; ; 2008 (4) SA 458 (CC), at paras 24, 25 and 35.…42. It is trite that an enquiry into unlawful detention (as with arrest) seeks to determine the extent to which the various affected rights of personality were impaired and their duration. The enquiry involves both a subjective element based on the emotional effect of the wrong committed to the plaintiff (such as the humiliation or anguish of suffering the injustice, the loss of self-esteem and self-respect) and an objective impairment based on the external effects of the wrong (such as loss of reputation in the eyes of others).”

[11] In assessing damages the purpose is not to enrich the Plaintiff but rather to offer him solatium for his injured dignity and loss of liberty. See Minister of Safety and Security and M Tyulu [327/08] [2009] ZASCA 55 (29 May 2009). An award for damages in respect of the Plaintiff’s injuria cannot be calculated with mechanical precision, recourse must be had for guidance in previous similar fact decisions.

[12] In Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at paragraph [20] it was stated that:

“[20]    Money can never be more than a crude solatium for the deprivation of what in truth can never be restored and there is no empirical measure for the loss. The awards I have referred to reflect no discernable pattern other than that our courts are not extravagant in compensating the loss. It needs also to be kept in mind when making such awards that there are many legitimate calls upon the public purse to ensure that other rights that are no less important also receive protection.”

[13] In Minister of Safety and Security v Kruger (183/01) [2011] ASCA 7 (8 March 2011) the court on appeal awarded an amount of R50 000-00 for unlawful arrest and detention of one day. The award in the matter of Minister of Safety and  Security v Seymour 2006 (6) SA 320 (SCA) was R90 000-00  for unlawful arrest and detention for 5 days.

Analysis

[14] In determining the quantum of damages I will consider the undisputed facts stated in relation to the arrest and detention of the Plaintiff. Further that he was assaulted by members of the police for no apparent reason. He sustained injuries and obtained medical attention. The Plaintiff as an adult family man was humiliated and is still suffering the effects of his arrest. He was away from his wife and seven children for three days. The conditions in the cell were not conducive and his rights to privacy were infringed. He had to bear the cold and sleep on the floor with only one blanket. On top of that he was injured and only received medical attention after he was released from detention.

[15] Having considered the circumstances of Plaintiff’s arrest and detention, his injuries as a result of the assault by the police , I am  of the view that an appropriate composite award for the Plaintiff’s claims is the amount of R280 000.00.

Costs

[16] It is trite that costs follow the result and as the Plaintiff is successful the Defendant is ordered to pay costs of suit.

Order

[17] Consequently, the following order is made:

1.   The Defendant is ordered to pay the Plaintiff’s damages in the amount of R280 000-00 with interest thereon at the rate of 15,5% per annum a tempore morae from the date of judgment to the date of payment;

2.   The Defendant is ordered to pay the costs of suit.

____________________

DJAJE J

JUDGE OF THE HIGH COURT

 

APPEARANCES

DATE OF HEARING                                        :        29 NOVEMBER 2017

DATE OF JUDGMENT                           :        21 DECEMBER 2017

         

COUNSEL FOR THE PLAINTFF            :        ADV. MAREE

COUNSEL FOR THE DEFENDANT       :        ADV. SOVITI-ZWEDALA

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