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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                                           CASE NO.: 993/2015

In the matter between:

MINISTER OF POLICE                                                                First Applicant

CAPTAIN LWANA                                                                        Second Applicant

And

PALESA LERATO BUSHULA                                                       Respondent

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

BESHE J:

[1]        This is an application for leave to appeal against part of my judgment on the matter which was delivered on the 24 October 2017. Leave is also sought to appeal against the awards I made in respect of respondent’s (plaintiff a quo) claims. 

[2]        My decision is assailed on the basis that I erred in finding that the respondent succeeded in proving her claim of malicious prosecution against the applicants, more specifically, finding that proceedings had terminated in her favour. Further that I erred as regards the excessive quantum awarded for: wrongful arrest and detention, malicious prosecution, assault as well as by awarding costs on a High Court Scale.

[3]        My rationale for finding that the fourth leg or requirement for a malicious prosecution claim was met by the respondent was essentially the following:

The charges in respect of which the respondent was standing trial in the Regional Court were different from the ones that were previously withdrawn against her albeit provisionally so. I pointed this out at paragraph [91] of my judgment where I also stated the following:

There is no longer a charge of resisting arrest. The alternative charge defeating the ends of justice is different, the assault is no longer described as one committed with the intention to cause grievous bodily harm.

There is no longer an allegation that second applicant was held on his neck with his jacket. I was therefore satisfied that the prosecution in respect of which second applicant set the law in motion failed an found that all the requirements for a claim for malicious prosecution had been met by the respondent.

[4]        Having heard argument on the application for leave to appeal and before I could render my judgment, I was approached by the parties who wanted to make / file further submissions regarding a new development in the matter.    

[5]        It is common cause that the new development concerned the fate of the criminal charges against the respondent. The respondent was desirous of placing evidence regarding this development before me before I could make a decision about the application for leave to appeal.

[6]        Those submissions are finally at hand. The applicants are opposed to the admission of such evidence.

[7]        This evidence is in the form of communique from the Director of Public Prosecutions, Eastern Cape, confirming his decision to stop the prosecution against four accused persons, one of whom is the respondent, a decision was made on the same date as the hearing of the application for leave to appeal. So, clearly at the time of trial the prosecution (current at time) had not been stopped. So, had the stopping of prosecution occurred during the course of the trial but that fact was for some reason not made known to the court, or not communicated to the respondent, it would no doubt be deserved consideration for purposes of this application.[1] In my view, the evidence (DPP’s letter) is not material and not admissible for purposes of this application. Especially that this is not an application by the respondent to introduce new evidence or place further evidence before court. Be that as it may, I am still of the view that based on the evidence before me (during the trial) the prosecution in respect of which second applicant set the law in motion failed or concluded in respondent’s favour.  

[8]        As regards the quantum of damages I awarded in respect of the different heads, I do not think the appeal would have a prospect of success in this regard either. In awarding the damages I was alive to the dictum in Minister of Safety and Security v Tyulu[2] namely:

“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 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 para 17; Rudolph & others v Minister of Safety and Security & Another 2009 (5) SA 94 (SCA) [(2009] ZASCA 39) paras 26-29).”

In my view, this applies with equal force to the other heads under which I awarded respondent compensation / solatium for the damages she suffered. In awarding the damages I recognized the extent of the damage / injury inflicted on the respondent, in circumstances where the infractions in question were perpetuated by a member of SAPS, in full view of his colleagues who mostly turned a blind eye to what second applicant was doing. In glare of respondent’s colleagues and members of the public. The pain and suffering she endured. The humiliation. The vindictiveness displayed by second applicant. The conditions under which she was detained. So the quantum of damages was assessed with due regard to the peculiar facts of this case.

[9]        As regards costs, I do not understand why it is contended I should have awarded costs on an award for ± R400 000.00 on an original claim for ± R800 000.00, to be on the Magistrates’ Court Scale.

[10]      In my opinion, the appeal does not have any prospects of success.

[11]     The application for leave to appeal is dismissed with costs.                 

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NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants   :          Adv: BL Boswell      

Instructed by             :         NN DULLABH ATTORNEYS

                                                5 Bertram Street

                                                GRAHAMSTOWN

                                                Tel.: 046 – 622 6696

                                                Ref.: Mr Wolmarans

For the Respondent            :           Adv: RP Quinn SC

Instructed by             :          NETTELTONS ATTORNEYS

                                              118A High Street

                                               GRAHAMSTOWN

                                               Tel.: 046 – 622 7149

                                               Ref.: Mr Marabini

Date Delivered                     :           25 June 2019

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