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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

 

                                                             APPEAL CASE NO: CIV APP MG23/24

                                         MAGISTRATE COURT CASE NO :397/20022

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

 

RAPULA  MOGOROSI                                        APPELLANT

 

AND

 

THE MINISTER OF POLICE                               FIRST RESPONDENT

 

NATIONAL COMMISSIONER OF SAPS            SECOND RESPONDENT

 

PROVINCIAL COMMISSIONER OF                   THIRD RESPONDENT

SAPS-NW

 

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 20 March   2024 at 14h00.

ORDER

 

1.            The appeal is upheld.

 

2.            The judgment of the court a quo is set aside and substituted with the following order:

 

“Judgment is granted in favour of the plaintiff.”

 

3.            The defendant is ordered to pay the sum of R 100.000.00 (one hundred thousand rand) in respect of his wrongful arrest and detention.

 

4.            Interest on the abovementioned amount of R100.000.00 will run at the prescribed rate a tempore morae from the date of summons until date of final payment.

 

5.             The defendant is ordered to pay costs, including the costs of this appeal, on Scale B.

JUDGMENT

 

REDDY J (HENDRICKS JP CONCURRING)

 

         Introduction

 

[1]        This is an appeal against a judgment by the Magistrate for the District of Mogwase (the court a quo) handed down on 22 March 2024. The court a quo dismissed an action for default judgment brought by the plaintiff, against the defendants in terms of Rule 32 of the Magistrates’ Court Rules, (the Rules) The appeal is unopposed. For purposes of concision, the parties will be referred to by the appellations as cited in the court a quo.

 

         Background facts

 

[2]        The factual background relevant to the consideration of this matter is as follows. On 28 September 2022, the plaintiff issued summons against the Minister of Police and the National Commissioner as well as the Provincial Commissioner of the South African Police Services, North West Province, (collectively referred to as the defendants), for pecuniary damages in the sum of R 200. 000.00 arising from his unlawful arrest and detention that took place on 1 November 2020 at Mmatserre Village.

 

[3]        The defendants’ special plea of non-compliance with S3(1) of the Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002, was condoned by an order of court dated 20 April 2023. Significantly, the defendants pleaded over that the arrest and detention of the plaintiff was denied, and the plaintiff was put to the proof thereof.

 

[4]       On 14 February 2024 the action was correctly enrolled for trial. There was no appearance for the defendants. Mr Motshabi indicated that the plaintiff was to proceed by way of Rule 32(2).   

 

[5]       The only evidence that was presented was that of the plaintiff. I proceed to set this out.  On Sunday 1 November 2020, whilst watching television, members of the South African Police Services, (the SAPS) arrived at the place of abode of the plaintiff. The wife of the plaintiff allowed these members to enter. On entry, the plaintiff identified Constable Ntsabele, (Ntsabele) who was in the company of a colleague. The plaintiff was informed that his mother-in-law had called the SAPS at Mogwase. Consequently, a directive was issued that the plaintiff had to be ‘fetched’.  He did not offer any resistance. Uncuffed, he got into back of the police van as instructed.

 

[6]        At the time of his arrest, the plaintiff was with his two minor children, one who was two (2) years old and the other one between five (5) and six (6) years old who, enquires about his friendship with the police. Moreover, the plaintiff’s neighbours witnessed him getting into the police van.

 

[7]        On arrival at the Mogwase Police Station, the plaintiff was left in the company of an unknown police officer who held the rank of Warrant Officer. After the lapse of about thirty (30) minutes, the brother of the plaintiff arrived. Ntsabele returned and questioned the plaintiff as to what formed his presence at the Mogwase Police Station. At about 20:00 Ntsabele left.

 

[8]        At about 21h05, Ntsabele returned and informed the plaintiff that further investigation had been conducted. Towards this end, a statement of the plaintiff’s wife had been secured.  Furthermore, Ntsabele disclosed that there had been a complaint of intimidation. The plaintiff was then arrested on a charge of intimidation. No rights in terms of section s35 of the Constitution of 1996 were explained. On inquiring of the failure to explain same, Ntsabele elucidated that the plaintiff’s rights would be explained on Monday.

  

[9]        The plaintiff was then taken to the cells, where he spent two nights. The following day after his arrest the plaintiff’s fingerprints and photographs were taken. Moreover, the plaintiff was advised that he would make his first appearance at court on Tuesday, 3 November 2020.

 

[10]      In the cells there were sixteen (16) detainees. The latrine was not working. The plaintiff slept on the floor with a dirty blanket.  A request by the plaintiff to make contact with his attorney was refused. The refusal of same was founded on the fact that there was a Covid -19 pandemic. 

 

[11]      In respect of sustenance, breakfast comprised of two slices of bread with tea that did not contain milk. For lunch, two slices of bread and beans were served.  The last meal of the day consisted of samp and tin beef.

 

 [12]     At about 10h00 on Tuesday morning, the plaintiff was taken to court. Whilst in the holding cells, the name of the plaintiff was called out. On responding to this call, the plaintiff was informed that he was being released and that he should go home. He did not make a formal appearance in a court. No reason was advanced to explicate the reason for his release.  After consultation with his attorney, the plaintiff was informed that the investigating officer had not enrolled his matter. 

 

[13]      As so far as his personal circumstances are concerned the plaintiff presented the following. At the time of his arrest, he was forty-nine (49) years old, married with four (4) minor children. He was employed as a Senior Indigent Officer at Thabazimbi Local Municipality. His core function is the managing of the subsidies for indigent households. The plaintiff holds a diploma in Public Management, a Certificate in Municipal Management Leadership and a Management Course Certificate. Additionally at that time he was pursuing his second year in legal studies. His arrest in the presence of his neighbours left an enduring stigma.

 

[14]      The fact that he had been arrested had to be disclosed to his employer as his incarceration caused him to be absent from work. This resulted in him being viewed as a ‘dark criminal’. Finally, at the at the time of his arrest the plaintiff was holding the position of a Coordinator of the Election for the Local Government elections of 2021. Notwithstanding protestations of his innocence, the arrest and detention impugned his dignity, effected his reputation and traumatised him.

 

        The finding by the court a quo

 

[15]   On 22 March 2024, the court a quo dismissed the plaintiff’s claim. To best appreciate the reasoning that underscored this finding, I extrapolate from the relevant portions of the judgment which reads:

 

             “ …..

           19. It is clear from plaintiff’s evidence that plaintiff was arrested without a warrant of arrest by the police officers. The Notice of rights is sufficient proof that he was arrested.

 

           20. The word “may” gives the arrestor an option to exercise the discretion to arrest or not. See section 40(1) of the Criminal  Procedure Act. The police officer acted on a complaint of intimidation (DV) against the plaintiff.

 

           21. The plaintiff in his testimony alleges that the police informed him that they were there to see him after they got a call from his mother in law

           - Which means the mother in law was the complainant but the plaintiff does not explain what the complaint was all about or whether the police explained to him about the complaint.

           -  See Section 1(1) Domestic Violence Act, Definition and interpretation:-    in this Act, unless the context indicates otherwise- “ Domestic Violence “ means-

          (e) Intimidation

       Where such harms, or inspires the reasonable belief that harm may be caused to the complainant.

 

           22.  He alleges that he was not told about his rights at home.

- During his testimony plaintiff alleged that he was arrested around 18h45 and the Notice of rights stated 20h00. That support his testimony that he was not told about his rights at home.

 

             23. Further that at police station he was told about intimidations only.

-  The Notice of Rights stated that he has been detained for intimidation in bracken (DV), which in my opinion the abbreviation meant Domestic Violence. The plaintiff did not testify whether there is a protection order against him or not. He left the court wondering about that issue.

 

24.  On paragraph four and five of plaintiff particulars of claim he did not state charges against him or whether he was charged or not any offence.

           - The Defendant in plea on paragraph 3.3 stated the following: -

“ The Defendant is not liable to pay the plaintiff any amount of money, since  there are no  legal premises established by the plaintiff for its claim against the Defendant.”

-  The court fully agrees with the said statement by the defendant. The arrestor, need to proof that the arrest and subsequent detention was justified in law.

- It is worth mentioning that the plaintiff needs to make a full disclosure when starting litigations to clear out any confusion.

- Also the leading of evidence in support of his claim does not shift the onus to the plaintiff in cases were arrest is proven. On this matter arrest was established by proving Notice of Rights. All that was required from plaintiff was full disclosure.

 

26. The defendants suspected that plaintiff committed an alleged intimidation (DV) on the complainant and reasonably believed that minimum information from the complainant. The defendants arrested plaintiff on the strength  that prima facie evidence.  See Mabona v Minister of Law & Order 1988 (2) SA 654 (SECLD) AT 658 E-H.

 

27. Section 40(1) (q) of the Criminal Procedure Act provides for domestic violence incident for police to arrest without the warrant, plaintiff and mother in law have relationship by affinity. See Section 1(1)(d) Domestic Violence Act.

 

28. Non enrolment of the matter does not mean it is the end of the case against the plaintiff and does not amount to acquittal. Therefore, it cannot be argued that the police acted with malice, without reasonable and probable cause.

 

29. I, therefore, do not find the plaintiff’s arrest and detention unlawful and no malice attributed to the defendants.

 

           RULING

 

            30. Default judgement is refused.

 

Grounds of appeal

 

[16]     The plaintiff assails the finding of the court a quo in that the court a quo materially misdirected itself by finding that the defendants discharged the onus of proving that the plaintiff’s warrantless arrest and detention was justified, notwithstanding the absence of an iota of evidence to justify same.  Resultantly, the plaintiff sought an order upholding the appeal on the merits and an order awarding quantum on the damages.

 

          An appellate courts’ discretion

 

[17]      It is a deep-rooted principle of our law that a trial court’s findings of fact are presumed to be correct in the absence of a clear and obvious error. This presumption is rebutted, by an appellant convincing a higher court that the trial court’s factual findings were plainly wrong. See: R v Dhlumayo & Another 1948 (2) SA 677(A) at 705 -706, Sanlam Bpk v Biddulph 2004 (5) SA 586 (SCA) paragraph [5]; Roux v Hattingh 2012 (6) 428 (SCA) paragraph [12].

 

         Discussion

 

[18]     The Magistrate committed several errors in law and fact. His judgment is replete with conjecture and assumptions. The correct application of Rule 32(2) would have skirted same. Notwithstanding this, the Magistrate correctly found that he was seized with a default judgment. Bearing this in mind, it would be apposite to consider the relevant part of Rule 32(2) which reads:

 

         ‘If a defendant…does not so appear, a judgment (not exceeding the relief claimed) may be given against him or her with costs, after consideration of such evidence, either oral or by affidavit, as the court deems necessary’. (my emphasis)

 

[19]     In regard to the use of the word “may”, D E van Loggerenberg in Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa, 10th ed, vol 2: The Rules, p 32-3, postulates the following:

 

‘The court may, in certain circumstances, be obliged to hear evidence in order to enable it to exercise its discretion in a proper manner.  Thus, for example, if the claim is for an unliquidated amount of money, the court cannot exercise a proper discretion in the absence of evidence in regard to the quantum of the plaintiff’s claim.  If the plaintiff’s claim is for the amount of a penalty in a contract, the court would be entitled to hear evidence, in terms of the provisions of the Conventional Penalties Act 15 of 1962, in order to determine whether or not the penalty is disproportionate to the ‘prejudice’ suffered by the plaintiff’.

 

[20]     The Magistrate conflated the fundamental principles that were at play. The plaintiff’s cause of action was that he was unlawfully arrested and detained. There was no appearance for the defendants. To my mind, the plaintiff should have succeeded on the merits by the application of Rule 32(2). What should have followed was evidence on the unliquidated portion of the cause of action.

 

[21]   In Alba Gas & Welding East Rand (Pty) Ltd v Closwa Biltong (Pty)   Ltd (A3054/2015) [2015] ZAGPJHC 276 (21 October 2015), Chaitram AJ advanced the following proposition on the application of Rule 32(2):

 

[15] The Rule, however, certainly neither requires nor envisages that the plaintiff proves his cause of action.  The nature and terms of the dispute are a matter between the parties. It is not for the court to take up the cudgels of either party’s case.  One of the main purposes of a trial is to adjudicate-over and finalise disputes between the parties.  By being in default of this exercise, the defendant renounces his right to create a dispute.  His pleaded dispute, accordingly, falls away and the plaintiff’s claim becomes undisputed.  A litigant is, generally, not required to prove an undisputed claim, except merely to justify his/her relief in respect of mainly illiquid claims where the court is called-upon to assess the fairness and reasonableness of the relief, and to ensure that other legal pre-requisites applicable to the action have been fulfilled.  There can be no question that a plaintiff ought, generally, to succeed on the merits of his/her claim without the need to lead evidence in support of it.

 

[16] It must be appreciated that a plaintiff has undertaken the burdensome legal journey to trial in search of his/her perceived elusive justice.  In the absence of the defendant at the trial, the plaintiff ought not to be subjected to further unnecessary hurdles to overcome.

 

[17] Plaintiff’s counsel was correct to submit that the Rule must be applied in the same manner as that of Rule 12(7), namely undefended actions where the court has a discretion to call for further evidence in relation to the plaintiff’s claim.  Further evidence in such undefended actions are generally limited to the substantiation of illiquid claims, and compliance with legal pre-requisites, and not to the proof of a plaintiff’s cause of action. 

 

[22]     Notwithstanding, the manner of the invocation of Rule 32(2), the facta probantia as presented by the plaintiff remained unassailable. That being so, it is inexplicable as to the source of these various assumptions that the Magistrate incorporated into his judgment. The Magistrate was limited to the particulars of claim which founded the plaintiff’s cause of action (the facta probanda), and the undisputed viva voce evidence of the plaintiff (the facta probantia). Conjunctively, this constituted the plaintiff’s cause of action.

 

[23]     The term “cause of action” was defined in McKenzie v Farmers’ Co-operative Meat Industries Ltd  1922 AD 16 at 23 as:

 

“…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."

 

[24] In  Evins v Shield Insurance Co Ltd 1980 [2] SA 814 A at 825G it was said that:

“cause of action “… is ordinarily used to describe the factual basis, the set of material facts, that begets the plaintiff's legal right of action.”

 

[25]     It stands to reason that there would be legal sense in differentiating between facta probanda and facta probantia. In the final analysis, it engenders logic that material facts only be pleaded, which the plaintiff adhered to. See: Makgae v Sentraboer [Kooperatief] Bpk supra at 244C-H. Facta probanda should be distinguished from “pieces of evidence” [facta probantia] required to prove the true facta probanda. See:  King's Transport v Viljoen  1954 (1) SA 133 (K) at 138 – 139].  As was remarked in Dusheiko v Milburn  1964 (4) SA 648 (A) at 658A:

 

        "I venture to think that most difficulties will in practice be resolved if, in applying the definition stated in McKenzie v Farmers' Co-operative Meat Industries Ltd (supra) to any given case, it is borne in mind that the definition relates only to 'material facts', and if at the same time due regard be paid to the distinction between the facta probanda and the facta probantia."

 

[26]     Ex facie the record, the Magistrate misdirected himself. Accordingly, his order of dismissal of the plaintiff’s action must be set aside and substituted with an appropriate order. In the premises, the appeal must be upheld. 

 

[27]     I shift focus to the issue of quantum. The assessment of the amount of damages to award to a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff spent in detention. The duration of the detention is not the only factor that a court must consider in determining what would be a fair and reasonable compensation to award. Other factors that a court must take into account could include: (a) the circumstances under which the arrest and detention occurred; (b) the presence or absence of improper motive or malice on the part of the defendant; (c) the conduct of the defendant; (d) the duration and nature of the deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of an apology or satisfactory explanation of the events by the defendant; (g) awards in comparable cases; (h) publicity given to the arrest; (i) the simultaneous invasion of other personality and constitutional rights; and (j) the contributory action or inaction of the plaintiff. See: J M Potgieter, L Steynberg, and T B Floyd. (2012) Visser & Potgieter Law of Damages. 3rd ed at 545-548; H B Klopper (2017) Damages para 255-259.

 

[28]      In Minister of Safety and Security v Tyulu  [2009] ZASCA 55;  2009 (2) SACR 282 (SCA); [2009] 4 All 38 (SCA);  2009 (5) SA 85 (SCA) para 26, the following was proposed :

 

            ‘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. ’

 

[29]    Comparable cases and the awards made therein are nothing more than a useful guide to what courts may consider to be appropriate based on the facts before them, but they have no higher value than that. In the end, each case must be decided on its own exigencies because the facts of a particular case need to be looked at as a whole and a few cases are directly comparable. See: Minister of Safety and Security v Seymour  [2006] ZASCA 71;  [2007] 1 All SA 558 (SCA);  2006 (6) SA 320 (SCA) para 17, Rudolph and Others v Minister of Safety and Security and Others  [2009] ZASCA 39;  2009 (5) SA 94 (SCA);  2009 (2) SACR 271 (SCA);  [2009] 3 All SA 323 (SCA) para 26.

 

[30]      Potgieter JA cautioned in Protea Assurance Co. Ltd v Lamb 1971 (1) SA 530 (A) at 535H-536A-B.  

 

‘It should be emphasised, however, that this process of comparison does not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court’s general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.’  See also Minister of Safety and Security v Seymour  [2006] ZASCA 71; [2006] SCA 67 (RSA);  [2007] 1 All SA 558 (SCA) at para 17.

 

[31]     I now revert to the facts of the present case. For purposes of determining quantum, the relevant factors in this matter are the inhumane conditions under which the appellant was detained, being the condition of the police cell in which he was detained which was filthy; the blankets were dirty; and the latrine was not in working order.   Furthermore, the humiliation he endured at the time of his arrest, which was exacerbated by the presence of the occupants of the neighbouring apartments. He was also deprived of his liberty for three (3) days.

 

[32]      As previously indicated, the plaintiff’s compensation should be commensurate with the damages he suffered and be a reasonable amount. Considering all relevant factors, I am satisfied that a fair and reasonable amount in the circumstances is R 100.000.00.

 

[33]   In respect of costs, the plaintiff has been successful. The general principle is that costs are at the discretion of the court, and  there is no basis to deviate from the usual order, that costs follow the result.

 

         Order

 

[34] In the premises, I make the following order:

 

1.    The appeal is upheld.

 

2.   The judgment of the court a quo is set aside and substituted with the following order:

 

“Judgment is granted in favour of the plaintiff”.

 

3.      The defendant is ordered to pay the sum of R 100.000.00 (one hundred thousand rand) in respect of his wrongful arrest and detention.

 

4.        Interest on the abovementioned amount of R100.000.00 will run at the prescribed rate a tempore morae from the date of summons until date of final payment.

 

5.      The defendant is ordered to pay costs, including the costs of this appeal, on Scale B.

 

A REDDY

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

 

I agree

 

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURTOF SOUTH AFRICA,

NORTH WEST DIVISION MAHIKENG

 

 

APPEARANCES

                                   

Counsel for the Appellant   :           Mr N Motshabi

                       

Attorneys for the Applicant               Ntsamai Attorneys

                                                          No 17 Clarendon Street

                                                          Golf View

                                                          Mahikeng

 

Counsel for the Respondent            No appearance

 

Attorneys for the Respondent        State Attorney

                                                            1^st Floor East Gallery

                                                             Mega city complex

                                                             Mmabatho                                     

                                   

Judgment reserved:                          21 February 2025                   

 

Judgment handed down:                 20 March 2025             

 

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