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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST HIGH COURT, MAHIKENG

                                                                            Case No:  CIV/APP/MG/15/19

In the matter between:-

THABO SIMON MOHOLA                                                           APPELLANT

and

MINISTER OF POLICE                                                               RESPONDENT

Coram: Hendricks J et Stanton AJ

JUDGMENT ON APPEAL

Stanton AJ:

Introduction:-

[1]     The appellant, as the plaintiff in the court a quo, sued the respondent, as defendant, for damages. For the sake of convenience, the parties shall be referred to as plaintiff and defendant.

[2]     In his particulars of claim, the plaintiff claimed that his arrest and subsequent detention was unlawful and that he, as a consequence, sufferred damages in the global amount of one hundred thousand rand (R100 000.00), for:-

2.1     being deprived of his freedom;

2.2     contumelia;

2.3     severe emotional stress and psychological trauma;

2.4     the embarrassment suffered by keeping him in the cell, and being arrested in front of the public;

2.5     humiliation and discomfort by being detained in a police cell; and

2.6     legal expenses he had to incur to obtain his freedom from unlawful detention.

[3]     In its plea, the defendant admitted that the plaintiff was arrested without a warrant. Pursuant to an application by the plaintiff in terms of Rule 23(8) of the Magistrates’ Court Rules, the defendant’s plea was dismissed, with costs, on 20 August 2018.

[4]     The trial in respect of the quantum proceeded on 04 December 2018 and was concluded in the absence of the defendant.

[5]     The plaintiff testified that he was arrested at 21:00 on 30 July 2016 by two police officers at the Potchefstroom Hospital while being treated by a medical doctor. He was not handcuffed, but felt ashamed, powerless and humiliated. He was detained for approximately 18 hours in a foul-smelling and dirty cell with a blocked toilet. He was detained with two other individuals. He was 53 years old on the day of the arrest. He was released on warning at 17:00 on Sunday, 31 July 2016. After his first apperance in court, the clerk of the court informed him that the case against him had been withdrawn.

[6]     According to the plaintiff, he was not drunk when he was arrested, but the accident that led to his arrest was caused by another vehicle that collided with his employer’s vehicle. At the time of his arrest, the plaintiff was employed by Pick and Pay as a driver. His employment was subsequently terminated due to the fact that the plaintiff damaged his employer’s motor vehicle as well as other items.

 [7]    The learned magistrate, Mr AC Eckley, after considering the plaintiff’s evidence, awarded him compensation in the amount of eighteen thousand rand (R18 000.00). The award is calculated on the basis of one thousand rand (R1 000.00) per hour of the plaintiff’s unlawful detention.

[8]     The plaintiff filed an appeal in respect of the quantum of the award and submits that the court a quo erred in the following respects, namely:-

 8.1     in finding that the arrest was lawful, despite the failure of the defendant to present any evidence to discharge its onus in this regard; and

 8.2    in failing to apply its discretion judicially, and having being influenced by the wrong principles, in particular that:-

8.2.1 it incorrectly applied an hourly calculation in the determination of the award;

8.2.2  it failed to acknowledge that the deprivation of personal liberty is a serious injury;

8.2.3  it did not take cognisance of the awards made in similar cases;

8.2.4  there is a serious disparity between the award granted by the court a quo and the awards in silmilar cases;

8.2.5  it incorrectly applied case law, which differed materially from the facts in casu ; and

8.2.6  the amount of eighteen thousand rand (R18 000.00) was shocking and inappropriate and does not reflect the importance of the right to liberty.

[9]     Despite providing written reasons in terms of Rule 51(1), the learned magistrate filed an additional written response to the plaintiff’s grounds of appeal. In essence, the written response is an elaboration of the reasons that had already been provided.

Condonation application:-

[10]    The defendant filed an application requesting condonation for the late service and filing of its heads of argument in the appeal.

[11]    Mr JJ Gerber, on behalf of the plaintiff, argued that this Court should award a cost order in favour of the plaintiff to demonstrate its displeasure with the manner in which the defendant conducted the matter from the onset, including the late filing of the heads of argument.

[12]    In my view, the condonation application sufficiently and adequately sets out the reasons for the delay, which delay was not inordinate. I am also satisfied that the plaintiff was not prejudiced by the delay, which prejudice was in any event cured by the cost orders granted in favour of the plaintiff on 07 February 2020 and 29 May 2020.

[13]    The application for condonation is accordingly granted, without costs.

The merits of the appeal:

[14]    In Minister of Safety and Security v Tyulu,[1] the Supreme Court of Appeal emphasized that:-

“[25]     Although it is true that the detention was for a relatively short period, I am of the view that the length of time for which a person is detained after arrest is not the only factor to be considered in determining damages. All the surrounding circumstances deserve to be accorded proper consideration. It cannot be doubted that this arrest must have caused him serious shock with concomitant mental anguish and stress. 

[26]      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. I readily concede that 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 the quantum of damages on such facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) 325 paragraph 17 [also reported at  [2007] 1 All SA 558 (SCA) – Ed]; Rudolph and others v Minister of Safety and Security and others (380/2008) [2009] ZASCA 39 (31 March 2009) (paragraphs 26–29) reported at  [2009] 3 All SA 323 (SCA) – Ed].”

[15]    In Rahim and others v Minister of Home Affairs,[2] Navsa ADP reiterated that:-

“[27]   The deprivation of liberty is indeed a serious matter. In cases of non-patrimonial loss where damages are claimed the extent of damages cannot be assessed with mathematical precision. In such cases the exercise of a reasonable discretion by the court and broad general considerations play a decisive role in the process of quantification. This does not, of course, absolve a plaintiff of adducing evidence which will enable a court to make an appropriate and fair award. In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia, the following factors are relevant:

(i)       circumstances under which the deprivation of liberty took place;

(ii)      the conduct of the defendants; and

(iii)     the nature and duration of the deprivation.”

[16]    This Court also took cognisance of the judgment in the matter of Ngewenya v Minister of Police[3] where an amount of fifteen thousand rand (R15 000.00) per day was awarded to the plaintiff as reasonable damages in respect of his unlawful arrest and detention.

[17]    Despite the fact that the learned magistrate incorrectly allocated an amount for every hour that the plaintiff was incarcerated, I am satisfied that all the relevant circumstances, including the plaintiff’s age, the circumstances of his arrest, the nature and duration of the incarceration, awards made in comparable cases, and the fact that deprivation of liberty is a serious injury, were considered. In addition, the plaintiff’s claim did not include a claim for a loss of income.

[18]    I accordingly find that the award of R18 000.00 was fair and appropriate in the circumstances.

[19]     This Court agrees that the learned magistrate erred in finding that the arrest was lawful, which point was also conceded by the defendant in its heads of argument. Based on our findings in paragraph 17 hereof and in view of the fact that the plaintiff filed a joint claim for unlawful arrest and detention, in lieu of two separate claims, and, upholding the appeal on this aspect alone, would be inconsequential.

Costs:-

 [20]   We find no reason why the costs in this appeal should not follow the result, with the plaintiff paying the defendant’s costs. In the absence of any request or reason that the costs should be awarded on an attorney and client scale, a cost order on a party and party scale is appropriate.

Consequently, the following order is made:

 The appeal is dismissed with costs.

________________

A STANTON

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

I agree

________________

RD HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES:-

DATE OF HEARING                           :        05 JUNE 2020

DATE OF JUDGMENT                         :        15 JUNE 2020

COUNSEL FOR THE APPELLANT        :        Adv. JJ Gerber

COUNSEL FOR THE RESPONDENT    :        Adv. OC Legae

ATTORNEYS:-

For the Appellant                             :        Jan Ellis Attorneys

                                                                   C/O Loubser-Ellis Attorneys

                                                                   127 Provident Street

                                                                    First Floor, Office No. 10

                                                                   MMABATHO

For the Respondent                          :        The State Attorney

                                                                   First Floor, East Gate

                                                                   Mega City Complex

                                                                   Cnr Sekame & James Moroka Drive

                                                                   MMABATHO

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