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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1944/09

DATE: 26 SEPTEMBER 2013

In the matter between:

THATO SIMEON NTOKO...................................................................................1ST Plaintiff

SAMUEL KOLOI SELEBOGO..........................................................................2ND Plaintiff

And

MINISTER OF POLICE..................................................................................1st Defendant

CONSTABLE KGOSIMANG PHILLIP TLHOLATLUNG........................2nd Defendant

KGOELE J

DATE OF HEARING : 14 AUGUST 2013

DATE OF JUDGMENT : 26 SEPTEMBER 2013

FOR THE PLAINTIFF : Adv. W.A.F. Strydom

FOR THE RESPONDENT : Adv. M.H. Masilo

JUDGMENT

KGOELE J:

A. INTRODUCTION

[1] The first and second plaintiffs claim damages from the first and second respondents emanating from an arrest in terms of the Stock Theft Act 57 of 1959. At the commencement of the hearing the parties indicated that the second defendant who was the arresting officer is deceased. First defendant conceded to the merits of the matter in as far as the unlawful arrest and detention are concerned. The plaintiffs also abandoned their claim of assault. As a result the matter proceeded only on the quantum of damages suffered by the two plaintiffs as a result of such unlawful arrest and detention.

B. SUMMARY OF THE EVIDENCE

[2] The first plaintiff, Thato Simeon Ntoko testified as follows: At the time of the arrest on the 15 December 2007 he was 16 years of age and he did inform the deceased (second defendant) that he was a minor. It was during the school holidays and he was helping the second plaintiff, who is his uncle, by looking after his goats at the cattle posts. He was arrested at the time he was helping another gentleman who came riding a horse to separate his sheep from the ones he was looking after. According to him he was arrested on a Saturday. He was not handcuffed but was loaded at the back of the van which travelled for about +- 10kms from the point of arrest to Morokweng Police Station. The deceased was with the members of the local Community Policing Forum when he arrested him. At the police station he was locked up alone in a cell for three days. He was given food, water and toilet. Although he was kept alone in the cell, people who were passing by kept on asking him what he was doing in the cells being so young. This did not go well with him.

[3] It was only after a social worker came to see him on the 18 December 2007 that he was released under the care of his mother. The first time he appeared in court was on Wednesday the 19 December 2007. He had to come to court thereafter on several occasions and the matter was postponed every time he appeared until it was withdrawn in 2009. He used his own transport to go to court and sometimes, used the police vehicle.

[4] According to him the arrest affected him in various ways. Firstly, the experience did not go well with him because he was labelled as a thief by other people in the village. Secondly, his friends, other children including teachers at the school kept on asking him why he was arrested. Thirdly, the arrest led to him failing Grade 12 which he was studying at that time. The reasons for not passing Grade 12 being that:-

(i) He was deeply hurt by this and his concentration during studies was affected;

(ii) He kept on attending court which resulted in him missing lessons on each day he attended court.

[5] He further testified that he is currently working at Assmang Black Rock Mine in Hotazel as a production team worker. He has been working there for about one year six months. It emerged during cross-examination that after failing Grade 12 he did not go back to school or repeat Grade 12 because they could not be allowed to repeat. He then worked as a security officer for different companies as he was not satisfied with the salary. The arrest became an issue every time he was looking for employment because he had to explain to prospective employers that he was once arrested but the case was withdrawn. This did not only affect him emotionally but also affected his chances of being employed at some instances. He lastly testified that before the arrest he was an exceptional student who did not fail any grade.

[6] He indicated that he claims an amount of R300 000-00 for his reputation, his future which was affected by the fact that he failed Grade 12, the unlawful arrest and detention when he was a minor.

[7] The second plaintiff, Mr Samuel Koloi Selebogo testified that he is the uncle to the first plaintiff. He was arrested on the 15 December 2007 at Morokweng Police Station whilst he was enquiring about the reason why his nephew was arrested. He was taken to court for his first appearance on the 19 December 2007, where-after he was remanded in custody. From the day of his arrest he spent thirty one days in custody, during which period he appeared in court more than ten times. He was released on the 15 January 2008 after his legal representative applied for bail for him.

[8] He testified further that he is married and conducts his farming operations. He earns R20 000-00 per annum. He has no formal education. He has cattle, goats, donkeys and horses in his farming operations. He was kept in a filthy cell with other 15 inmates. The other inmates took all his food he was given at the police station and did not give him anything. His wife regularly brought food for him but the other inmates also took half of it and gave him the other half to eat.

[9] According to him as a result of his arrest he suffered damages in that twelve (12) of his cattle went missing. Five (5) of his goats were found dead as there was no one taking care of his livestock. The case affected him adversely in that every time there is a complaint of stock theft in the village, the police come to him. Although he did not remember how many times he went to court up until the case was withdrawn, he indicated that he used his own transport in the form of taxis. On all those several occasions he paid R50-00 per return trip. His wife was also affected by him staying in the cells as she wanted to know why he was arrested. There was nobody that was taking care of his family. The other people at the village where he stays were also surprised why he was arrested.

[10] He lastly testified that he claims R150 000-00. This amount was later clarified by his legal counsel to be R500 000-00 during re-examination.

[11] The defendant did not testify nor call any witnesses on its behalf.

C. THE LAW

[12] Jones J in Olgar v Minister of Safety and Security (18 December 2008 (Case No. 608/07) Eastern Cape) at paragraph 16 remarked as follows:-

“In modern South Africa a just award for damages for wrongful arrest and detention should express the importance of the constitutional right to individual freedom, and it should properly take into account the facts of the case, the personal circumstances of the victim, extent and the nature, and degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from that Holmes J called the ‘horn of plenty’, at the expense of the defendant”.

[13] Nugent JA in Minister of Safety and Security v Seymore 2006 (6) SA 320 (SCA) at page 326 paragraphs 17 and 20 expressed the following caution:-

“The assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular need to be looked at as a whole and few cases are directly comparable”.

and

“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 discernible 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”.

D. ANALYSIS

First plaintiff’s claim

[14] I did not find a comparable case in as far as damages claimed by a minor is concerned. I therefore took the following into consideration in coming to the amount of damages that are to be awarded in the case of the first plaintiff. He was arrested when he was still very young and at a very crucial time of his life, doing Grade 12. The circumstance under which he was arrested leaves much to be desired. He was arrested at the time he was helping his uncle during school holidays. The police being aware that he was a minor did not even bother to go to his parental place to report that he was being detained. They went to an extent of keeping him in custody well knowing that they can do that only in exceptional circumstances. The duration that they kept him in custody without the intervention of a probation officer / social worker and or parents is also inordinately long. The situation is exacerbated by the fact that on the next available court day the plaintiff was also not brought before the court. He suffered deprivation of personal liberty. The deprivation of personal liberty has consistently been regarded by our courts as a serious injury. He failed Grade 12 as a result of the arrest as his continued attendance of school was affected. He was also emotionally affected because of the arrest. His bright future has been to some extent affected by the arrest and also by the issue of explaining himself to the prospective employers even in future to clear the fact that he was previously arrested.

[15] Counsel for both the plaintiff and the defendant referred this court to some decisions for a comparative analysis in order to determine the award of damages. Although they were not dealing with a minor scenario, I have taken them into consideration in the analysis of this matter. The compendium of all of the decisions they referred to and numerous others not cited shows that there can be no rule of thumb. It depends entirely on the circumstances of each and every case. Therefore the circumstances of this matter informs me that an award of R200 000.00 in respect of the first plaintiff’s claim for unlawful arrest and detention from the 15 – 18 December 2007 would be appropriate.

Second Plaintiff’s claim

[16] The second plaintiff was 30 years old at the time of his arrest. He is a man with no formal education. He earns his living from farming with livestock. Although he said he was married, it became apparent during cross-examination that he was only living together with the woman whom he has children with but married her after the arrest. He was detained for a month. He was locked up with other 15 inmates. The inmates deprived him of his food that he was given by the prison authorities together with those that were brought by the wife. In my view, although he was not assaulted in the cells, his fundamental human rights were bridged by this unlawful arrest and detention. In addition, he also suffered loss of amenities of life.

[17] Although second plaintiff did not quantify how much he lost during the whole month whilst he was incarcerated, one cannot escape the fact that his income was affected by his absence. This fact is further substantiated by the fact that some of his stock went missing and some died as a result. There was no evidence that the plaintiff have a public profile. But this court will not close its eyes to the fact that the arrest affected his dignity. I accept what he told this court that every time when there is a stock theft case, he becomes the first police’s suspect. The circumstance under which he was arrested was also taken into consideration by this court in arriving at the amount of quantum to be awarded to him. Balancing all the consideration I had made above, I am of the view that an amount of R350 000-00 is fair and reasonable to be awarded to the second plaintiff for his unlawful arrest and detention.

[18] The defendant’s counsel did not have any objection that costs be awarded to the plaintiff’s in a High Court scale, but submitted that the interests of the amount to be awarded, contrary to what the plaintiff’s counsel had submitted, be calculated from the date of this judgment. According to him it is only in exceptional circumstances that the court can order the interest to run from the date of the summons. In my view, it is quite clear that the two plaintiffs were not brought before court within the required 48 hours period as required by the law. This is one of the many cases of this nature our courts are usually faced with. This clearly depicts a continued, persistent disregard of the laws of our country. In this case, the matter was subsequently withdrawn which is an indication that there was from the onset no prima facie case against the two plaintiffs, and most probably, no reasonable facts upon which the arrest and detention could have been made. The circumstances in which they were arrested, coupled with these considerations persuade me to agree with the submission by the plaintiff’s counsel that exceptional circumstances exist in this matter that justify or warrants this court to order that the interest should be calculated from the date of demand.

E. ORDER

[19] The following order is thus made:-

19.1 The first defendant is ordered to pay the first plaintiff damages for his unlawful arrest and detention in an amount of R200 000.00, together with interest thereon at a rate of 15.5% per annum as from the date of demand until date of payment.

19.2 The first defendant is ordered to pay the second plaintiff damages for his unlawful arrest and detention in an amount of R350 000.00, together with interest thereon at a rate of 15.5% per annum as from the date of the letter of demand until the date of payment.’

19.3 The first defendant is to pay the plaintiffs cost of suit.

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:

For the Plaintiff : Abel Bester Inc.

C/O Van Rooyen Tlhapi Wessels Inc.

9 Proctor Avenue Mafikeng

For Defendant : State Attorneys

Justice Chambers

44 Shippard Street

MAFIKENG

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