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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 022/2006

PARTIES: GABRIEL FREEMAN

AND

1. THE MINISTER OF SAFETY & SECURITY

2. THE MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS

REFERENCE NUMBERS –

• Registrar: 760/05

DATE HEARD: 27 FEBRUARY 2006

DATE DELIVERED: 03 MARCH 2006

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

• for the State/Applicant(s)Appellant(s): MG SWANEPOEL

• for the accused/respondent(s): A BEYLEVELD

Instructing attorneys:

• Applicant(s)/Appellant(s): SWARTS ATTORNEYS

• Respondent(s): STATE ATTORNEYS PORT ELIZABETH

Possibly reportable on quantum

In the High Court of South Africa

(South Eastern Cape Local Division) Case No 760/2005

Delivered:

In the matter between

GABRIEL FREEMAN Plaintiff

and

1.THE MINISTER OF SAFETY AND SECURITY First Defendant

2.THE MINISTER OF JUSTICE AND

CONSTITUTIONAL AFFAIRS Second Defendant

SUMMARY: Wrongful arrest and imprisonment – detention for 21 days in humiliating circumstances – R250 000-00 awarded as damages.

JUDGMENT

JONES J:

[1] On 30 August 2004 the plaintiff was arrested in Port Elizabeth during the course of a city-wide crime prevention action by the South African Police Services. His arrest was without warrant and without lawful justification. He was detained in police cells and thereafter in prison for a period of 21 days. The further detention was also without lawful justification. In the result the plaintiff claimed damages from the first defendant in the sum of R15 000-00 for wrongful arrest, and damages from both defendants in the sum of R315 000-00 for wrongful imprisonment. The first defendant has accepted liability for all damages suffered by the plaintiff, and has placed in issue only the quantum of damages. As a result, the second defendant has fallen out of the picture and no orders are sought by or against him.

[2] The parties have prepared a stated case in terms of rule 33 which sets out the facts relevant to the quantum of damages. The plaintiff is a 28 year old unmarried man of Timothy Valley, a suburb of Port Elizabeth. He was 25 years old at the time of his arrest and detention. He was employed at a sports bar where he earned R3 500-00 per month. On 30 August 2004 the South African Polices Services carried out a crime prevention exercise called Operation “Bite” in the Port Elizabeth area. In the course of this exercise the plaintiff was arrested by members of the police acting in the course and scope of their employment. He was arrested in public without a warrant and without lawful cause or justification. He was then taken to the Humewood Police Station and detained in the cells there. The police were particularly busy during Operation “Bite”. The police cells were full to overflowing with persons arrested for committing offences. Many of the detainees in the plaintiff’s cell were not only criminals. There were drunk, disorderly and thoroughly unhygienic in their behaviour. At the police station the plaintiff was formally notified of his rights. He protested his innocence, but to no avail. On 2 September 2004 he and others were conveyed in an overcrowded police vehicle to the holding cells at the magistrates’ courts, where conditions were described as chaotic. In the cell he was threatened by a number of ‘gangsters’ and searched by other prisoners for items to steal. He appeared in court, his case was remanded, and he was transferred to St Albans Prison as an awaiting trial prisoner. There, he was made to strip and subjected to a humiliating body search. He was then kept in an overcrowded cell - it was designed for 18 prisoners but it contained about 40 – where other prisoners subjected him to abuse. He was searched for money and cigarettes, and physically manhandled and smacked when nothing of value was found. He was also threatened by members of the notorious prison gangs 26, 27 and 28. He was kept in these conditions, which he found degrading and humiliating, from 2 September 2004 to 20 September 2004. He was deprived of his liberty for a total period of 21 days. The stated case acknowledges that this amounted to an injury to his right to bodily freedom, his right to a good name, and his right to dignity, and that he was deprived of the constitutional rights and liberties to which he is entitled as a South African citizen.

[3] I am grateful to Mr Swanepoel for the plaintiff and to Mr Beyleveld for the defendant for their helpful arguments and the realistic submissions they have made on the quantum of damages. They have referred me to Minister of Justice v Hofmeyr [1993] ZASCA 40; 1993 (3) SA 131 (A); Minister of Correctional Services v Tobani 2003 (5) SA 126 (E); Seria v Minister of Safety and Security and others 2005 (5) SA 130 (C), [2005] 2 All SA 614 (C); Stoltz v Minister of Safety and Security, (unreported, SECLD Case No 2114/2004, 25 January 2005); Ntshingana v Minister of Safety and Security and Minister of Justice (unreported, ECD Case No 1639/2001, 14 October 2003); and Seymour v Minister of Safety and Security (unreported, WLD Case No 26508/2001, 16 February 2005), and to the summary of factors which may play a role set out in Visser and Potgieter, The Law of Damages 2^nd ed 472/5. Counsel for the plaintiff submitted that in the light of the principles and the awards in the cases referred to, the circumstances of this case justify an award of between R250 000-00 and R315 000-00. Counsel for the defendant suggested a figure of R250 000-00.

[4] The judgment of Meer J in Seria v Minister of Safety and Security and others supra contains a useful summary of the approach of the courts in modern times to the quantum of awards of compensation in cases like this. The learned judge is reported as follows at 149J – 151B:

‘There is no fixed formula for the assessment of damages for non-patrimonial loss. It is recognised that a court has the power to estimate an amount ex aequo et bono and consequently enjoys a wide discretion with fairness as the dominant norm. In Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) Holmes J stated at 287E - F:

'I have only to add that the Court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense.'

Amounts previously awarded in comparable cases provide a general indication of what is fair and appropriate compensation. In Hulley v Cox 1923 AD 234 at 246 Innes CJ commented that 'a comparison with other cases can never be decisive; but it is instructive'. Previous awards are updated to current value, invariably employing the consumer price index.

. . .

It has been acknowledged that awards by South African courts have tended to be lower than those in most countries. Visser and Potgieter comment that

'(a)t present voices are raised in favour of the view that courts should place a high premium on personality interests and that this attitude should be reflected in the quantum of satisfaction'.¹

In Liu Quin Ping (supra²) Claasen J at 86D - F aptly states:

'Deprivation of one's liberty is always a serious matter. This contention is reflected in the fact that our Constitution has entrenched the freedom and security of the person as part of the Bill of Rights. Section 12 of the Constitution of the Republic of South Africa Act 108 of 1996 states the following:

''(1) Everyone has the right to freedom and security of the person, which includes the right -

(a) not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial.''

In a constitutional dispensation where our Bill of Rights rules and regulates the affairs of men, it would seem to me to follow that an infringement of such an entrenched right protected by the Constitution may very well attract a larger measure of damages than under a system where citizens were not accustomed to the protection of entrenched rights.'

Courts, I believe are tasked with the duty of upholding the rights to liberty, safety and dignity of the individual and in so doing have a responsibility to accord an appropriate and proper value thereto, especially in the light of the extent to which these rights were devalued, indeed negated, in the brutal past of this country.’

I agree that the awards of the courts should reflect the value which our society places on rights to liberty and dignity and the seriousness of exposing a person to humiliation, degradation and diminution of his or her sense of personal worth, insofar as it is possible to do so in monetary terms. This is so in all cases, even where, as here, the infraction is not aggravated by malice or personal vindictiveness towards the plaintiff. Applying the approach in Seria’s case and having regard to the awards in the cases to which I have been referred as a general guide, I believe that the facts of this case as outlined in the stated case merit a globular award of R250 000-00 for the invasion of the plaintiff’s rights.

[5] I make the following order:

1. The first defendant is ordered to pay R250 000-00 to the plaintiff as and for damages, with interest thereon at the prescribed rate from 14 days of the date of judgment to the date of payment.

2. The first defendant is ordered to pay the plaintiff’s taxed party and party costs of suit, including the costs of the exception to the first defendant’s plea dated 24 October 2005, with interest thereon at the prescribed rate from 14 days of the date of allocatur or the date of agreement on costs to the date of payment.

RJW JONES

Judge of the High Court

28 February 2006

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