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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

                                                                                   CASE NO.: CIV/APP/MG14/19

 

In the matter between

JAN HENDRIK ADRIAAN NAGEL                                                            Appellant

and

THE MINISTER OF POLICE                                                                        Respondent

 

CIVIL APPEAL

 

GURA J & NONCEMBU AJ

 

 JUDGMENT

 

NONCEMBU AJ

 

Introduction

[1]     In a claim for unlawful arrest and detention heard by the magistrate in Potchefstroom on 26 March 2019, judgment on the merits was granted by default in favour of the appellant. The respondent had failed to appear in court on the agreed upon trial date. On the same date the appellant led evidence on quantum and was awarded general damages in the amount of R30 000 by the magistrate.

 

[2]     The appellant is now appealing against the said quantum award on the grounds that the magistrate misdirected himself in coming to the said award, citing various reasons which I shall deal with later in this judgment. He is also appealing against the cost order made by the magistrate, contending that the magistrate erred in not finding the respondent liable for costs on an attorney and client scale, and in not awarding counsel’s fees in terms of rule 33(8) of the Magistrate’s Court Rules.

 

[3]     Both parties filed written heads of argument and the matter is being dealt with on the papers only.

 

Background to the matter

[4]     The appellant was employed as a manager at House and Home. His employer lodged a complaint of theft against him. Following upon the said complaint, he was invited to attend an interview at the detective’s offices at Potchefstroom Police station on the 22 November 2016. On his arrival at the police station, around 9h30 am he was arrested, charged and detained in the police cells. He was kept there overnight and taken to court the following morning where he was further detained at the court cells. Around 12h30 pm he was released without appearing in court as the prosecutor had declined to prosecute him.

 

[5]     The conditions he was kept under at the police station were very bad and unhygienic. He was detained in a small cell with 13 other detainees, all sharing one toilet which was in a dirty condition. He slept on a thin gym-mat type mattress with no blanket to cover himself with. He was pushed and searched by fellow detainees upon entering the cell and was so frightened that he stayed awake the entire night. 

 

[6]     This incident left him so traumatized that he was afraid of going near a police station afterwards, even when he himself was a victim of crime. After his release he instituted a claim for damages in the amount R100 000 against the respondent, which claim included, inter alia, contumelia, deprivation of his freedom and severe emotional and psychological stress.

 

[7]     In an ex tempore judgment delivered on the 26 March 2019 the magistrate awarded the appellant damages in the amount of R30 000, which he found to be an appropriate amount as solatium for the injury suffered. In coming to the said amount he considered previous awards made by magistrates in his district as well as settlement agreements by parties in the said district; which he said were around R20 000 per day. He therefore felt justified in increasing the amount to R30 000 for detention of approximately one day. He also referred to various decided cases by the High Courts and the Supreme Court of Appeal. On this aspect I shall revert later in the judgment.

 

The Legal position

[8]     The general rule is that a court of appeal will not interfere with the trial court’s finding unless a material misdirection has occurred. In Protea Assurance Co Ltd v Lamb,[1] cited with authority in Minister of safety and Security v Seymour,[2] Potgieter JA said the following in this regard:

‘It is settled law that the trial judge has a large discretion to award what he in the circumstances considers to be a fair and adequate compensation to the injured party for these sequalae of his injuries. Further, this court will not interfere unless there is a “substantial variation” or as it is sometimes called a “striking disparity” between what the trial Court awards and what this Court considers ought to have been awarded.’[3]

 

[9]     The above-mentioned principles are equally applicable in the present matter.

 

[10]   In his Notice of Appeal, the appellant contended that the magistrate materially erred and misdirected himself in assessing the quantum; alternatively did not exercise his discretion judicially: was influenced by wrong principles by referring to previous matters of the court a quo (district) taken on appeal by plaintiff’s attorney; by referring to previously settled matters by plaintiff’s attorney in the same court (district); and by not considering previous awards in decided cases, thus ignoring the stare decisis principle and negating the applicable law argued in Court on behalf of the plaintiff.

 

[11]   It is trite that a person’s liberty is one of the most cherished and guarded constitutional rights. Various courts have pronounced on the importance of ensuring that the rights contained in the Bill of Rights are respected, protected, promoted and fulfilled at all times (subject to the limitation in section 36 of the Constitution); not only by the courts, but by the State as well as the Executive.[4] Section 12 (1) (a) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) provides that everyone has the right to freedom which includes the right not to be deprived of freedom arbitrarily or without just cause.

 

[12]   This section of the Constitution provides both substantive and procedural protection. This dual protection contained herein was articulated as follows in the case of Bernstein and Others v Bester and Others NNO[5]:

‘In my view, freedom has two interrelated constitutional aspects: the first is a procedural aspect which requires that no one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution. The other Constitutional aspect of freedom lies in a recognition that, in certain circumstances, even where fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable.’

 

[13]   In Minister of Police v Du Plessis[6] the Supreme Court of Appeal of the Republic of South Africa held as follows:

‘Our new constitutional order, conscious of our oppressive past, was designed to curb intrusions upon personal liberty which have always even in the dark days of apartheid been judicially valued, and to ensure that excesses of the past would not recur. The right of liberty is inextricably linked to human dignity. Section 1 of the Constitution proclaims as founding values human dignity, the advancement of human rights and freedom. Put simply, we as society place a premium on the right of liberty.’

 

[14]   The magistrate referred to the affected rights of the appellant in his judgment; which include the right to freedom, the right not to be arbitrarily deprived of such freedom and the right to dignity. However, it does not seem like he was able to comprehend the importance of these rights and the seriousness attached to their infringement by both the Constitution and the Courts. I say this because his ex tempore judgment and the reasons furnished therefore in terms of rule 51 (1) of the Magistrate’s Court Rules [7] are silent on this aspect.

[15]   No doubt an award for damages is but only a solatium for the injured personality rights, for the injury caused can in itself never be restored. The following can be listed as governing principles in making awards in these matters: [8]

(a) Money can never be more than a crude solatium for the deprivation of what in truth can never be restored. There is no empirical measure for the loss.

(b) The trial judge has a wide discretion to award what the judge considers to be fair and adequate compensation to the injured party.

(c) The assessment of damages with reference to previous awards is fraught with difficulty. The facts of a particular case need to be considered as a whole and few cases are directly comparable.

(d) They are, however, a useful guide to what other courts have considered to be appropriate but they have no higher value than that.

 

[16]   Taking note of the above mentioned guiding principles, I am of the view that the magistrate misdirected himself on various aspects in considering an appropriate award in the present matter. Although he made reference to various decided cases in his ex tempore judgment, this was simply based on a mechanical calculation of the number of days /hours in detention vis a vis the amount awarded, with no consideration of the peculiar facts in each case. This is exactly what the SCA in Seymour (supra) was cautioning about when it said that such an assessment is fraught with difficulties.

 

[17]   In his reasons furnished in terms of section 51 (1) of the CPA the only consideration that appears as his basis for the award made is the previous awards made by him and his colleagues in his district, as well as previous settlement agreements entered into by parties in the district. It is trite that Magistrates’ Courts do not create precedents. Nowhere in his reasons is there any mention of any decided cases by the Superior Courts. He was referred to various decided cases by counsel for the appellant in court, with facts to guide in respect of each case, including one from this Division[9]. It seems however, that these were simply ignored, despite him having demanded to be furnished with hard copies thereof.

 

[18]   A further misdirection on his part became apparent when he was addressed by counsel on the number of hours spent in detention by the appellant. When counsel contended that the appellant had been detained from 9h30 until 12h30 the next day, totaling approximately 27 hours, he was very quick to point out that counsel should not be ‘technical’.

 

[19]   To make his point he indicated that the Appellate Division had made it very clear that the Minister of Police was only liable until the time a person was taken to court, and that whatever happened at court could not be put at the Minister’s door. He pointed out that the appellant was taken to court between 7h00 and 8h00 am, and that the court ordinarily would have commenced at 9h00 and appellant would have appeared by 10h30 at the earliest. According to him the fact that his case was only dealt with around 12h30 could therefore not be placed at the “respondent’s doorstep” (my emphasis).

 

[20]   This is a clear misinterpretation of the law as it then was (I say this because that is no longer the position currently,  but I will not deal with that issue now as it does not arise in the present matter).[10] My view here is that the reference to the Appellate Division was to the De Klerk 2018[11] matter by the Supreme Court Appeal (‘SCA’), wherein the SCA, making reference to its previous decision in Sekhoto[12], said the following:

‘I am of the view that the appellant was unlawfully detained for not more than two hours. The evidence shows that he arrived at the Sandton police station after eight in the morning and that by ten am he had appeared in court and had been remanded in custody. I am of the view that what happened in court and thereafter cannot be placed before the doorstep of the respondent…In my view the police cannot be held liable for the further detention, even if the arrest is found to have been unlawful. What is critical is that, the justice department would be responsible and liable for the further detention because of its failure to observe the constitutional rights of a detained person.’ (my emphasis).

[21]   In both the Sekhoto and De Klerk matters the SCA was referring to a further detention sanctioned by a magistrate in court when it said that could not be placed at the ‘doorstep of the police’. In the present matter the appellant was taken to court and detained at the police cells until his release when the prosecutor declined to prosecute him. He never appeared before a magistrate and as such was at all material times in police custody until his release at around 12h30. The question of his further detention at the court’s instance therefore never arose. I am therefore satisfied that he was detained at the instance of the police for approximately 27 hours as contended in his amended particulars of claim, and in his evidence in court.

[22]   The magistrate clearly misdirected himself in considering the appropriate award in the circumstances of the present matter. I do appreciate his frustrations with the conduct of the police in dealing with these matters, seemingly arresting and detaining people at will with no consideration of their rights and without following the prescripts of the law. I am also mindful of the fact that we are dealing with public funds in these matters and that the aim is not to enrich the claimants. However, the premium placed on the constitutional rights protected also has to be manifest in the award made. This one can do by taking into account in their assessment, an award which somehow displays the importance of the rights infringed, whilst at the same not enriching the claimant at the defendant’s expense. 

[23]   This was properly put as follows in the case of Olgar v Minister of Safety and Security:[13]

‘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 degree of the affront to his dignity and his sense of personal worth. These considerations should be tempered with restraint and a proper regard to the value of money, to avoid the notion of an extravagant distribution of wealth from what Holmes J called ‘horn of plenty’, at the expense of the defendant’.

 

[24]   Considering the facts of the present matter which include: the circumstances and conditions under which the appellant was arrested and detained; his personal circumstances and the effect of the arrest and detention on him; the guidance provided by the various decided cases that this court was referred to, I am of the view that an interference with the award made by the court a quo is warranted. My view is that there is a striking disparity between what the magistrate awarded as damages compared to what ought to have been awarded in the present matter.

 

[25]   One of the decided cases the magistrate was referred to, which he clearly ignored, is that of Tlhaganyane v Minister of Safety and Security, a  decision of this Division.[14]In that matter the plaintiff who was the son of a minister in one of the prominent churches in the area was detained for 19 hours and was awarded an amount of R140 000 in damages in 2013. In the case of De Klerk v Minister of Police matter mentioned above,[15] a matter I find to have striking similarities to the present one, except that the injury suffered by the appellant in the 2 hours of his detention there is much less than what was suffered by the appellant in the present matter, the following scenario ensued.

 

[26]   The appellant (De Klerk) was called to the police station after a complaint of assault with intent to do grievous bodily harm was lodged against him. He proceeded to the police station where he was arrested, charged and taken to court immediately. He was never detained at the cells in the police station, and at court he was taken to court within an hour and he was further remanded in custody by the magistrate in court. The Court found the Minister of Police to be liable for his damages for up until his appearance in court where his further detention was ordered by the magistrate. The Court awarded him an amount of R30 000 in damages for the 2 hours of his detention.

 

[27]   If one considers that the appellant in the present matter was detained overnight in a police cell and at the court cells (approximately 27 hours), was awarded R30 000; and Mr De Klerk who was only detained for 2 hours at the court cells was also awarded the same amount in damages, it becomes very clear that there is a disparity between what was awarded and what ought to have been awarded in the present matter. It is my considered view that an interference with the award granted by the magistrate is warranted.

[28]   Counsel for the responded conceded in his heads of argument that the magistrate misdirected himself in considering an appropriate amount in the present matter. According to him however, the appellant should have been awarded an amount of R15 000 in damages as he was only detained for 3 hours. It is not clear to me where he got the 3 hours from as it is not in the evidence that was presented before the magistrate in the court a quo, nor is it contained in the appellant’s amended particulars of claim.

 

[29]   Considering all that has been stated above, I am of the view that an appropriate award which is fair and adequate compensation in the circumstances of the present matter would be an amount of R80 000.

 

[30]   With regards to the issue of costs I cannot find that the magistrate misdirected himself as contended. The issue of costs is one for the discretion of a Court. The magistrate exercised his discretion and awarded the appellant costs on a party and party scale, and these included counsel’s fees. That he did not order a punitive cost award as prayed for by the appellant was in his own discretion and this he explained in that the appellant was not put out of pocket by the non-attendance of the respondents in court on the trial date, as judgment by default was granted in his favour. I have no reason to find that his discretion was not exercised judicially in this regard.

 

Order

[31]   Therefore, the following orders are made:

(a) The appeal is upheld with costs;

(b) The decision of the court a quo is set aside and replaced with the following orders:

·     The appellant is awarded an amount of R80 000 in general damages for unlawful arrest and detention;

·      Interests on the said amount is ordered at the rate of 10,25 % per annum from the date of service of summons to date of final payment.

 

 

 

 

V P NONCEMBU

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

I concur

 

 

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

 

 

 

APPEARANCES

 

DATE OF HEARING                      :        09 OCTOBER 2020 (ON PAPER)

 

DATE OF JUDGMENT                  :        23 OCTOBER 2020

 

COUNSEL FOR APPELLANT      :        ADV. A C GOBETZ

 

COUNSEL FOR RESPONDENT  :        ADV. L C SEREMANE

 

 

 

ATTORNEYS

 

For the Appellant              :        Jan Ellis Attorneys

                                                                   C/O Loubser-Ellis Attorneys

                                                                   27 Provident Street

                                                                   MMABATHO

 

For the Respondent          :         State Attorney

                                                                   1^st Floor Mega City, East Gallery

                                                                   MMABATHO

 

 

 

 

 

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