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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 23759/03

In the matter between:

HIGGO, EDWARD CHRISTIAAN Plaintiff

and

MINISTER OF SAFETY AND SECURITY First Defendant

CAPTAIN AVONTUUR Second Defendant

CAPTAIN MBEKA Third Defendant

J U D G M E N T

MOSHIDI, J:

[1] The plaintiff sues the defendants jointly and severally, the one paying the other to be absolved, for damages as a result of his arrest and detention on 2 October 2002. His cause of action is set out in the particulars of claim as follows:

“1. The plaintiff is Edward Christiaan Higgo, an adult businessman with principal place of business at 6 Graham Road, Alberton.

2. The first defendant is the Minister of Safety and Security, cited in his official capacity as such, responsible for conduct and affairs of the South African Police Services and its members, c/o The State Attorney: Johannesburg, 10^th Floor, North State Building, corner Kruis and Market Streets, Johannesburg.

2. The second defendant is Captain Avontuur, a member of the South African Police Services and stationed at the Brackendowns Police Station in the district of Alberton.

2. The third defendant is Captain Mbeka, a member of the South African Police Services and stationed at the Brackendowns Police Station in the district of Alberton.

2. The fourth defendant is Sybrandt Pienaar, an adult businessman with place of business in Koringhof Street, Meadowdale, Germiston.

CLAIM 1

(AGAINST THE FIRST, SECOND, THIRD AND FOURTH DEFENDANTS)

6. On 2 October 2002 and at Alberton, the plaintiff was arrested without a warrant of arrest at the request, insistence and instance of the fourth defendant by the second and third defendants and/or other members of the South African Police Service.

7. The second and third defendants and/or the other members of the South African Police Service were acting within the course and scope of their employment with the South African Police Service.

8. The plaintiff was thereafter detained at the Katlehong police cells and the Boksburg Prison respectively for six days at the instance of the second and the third defendants and various other members of the South Africa Police Services whose names and ranks are unknown to the plaintiff.

9. As a result of the aforegoing, the plaintiff suffered loss in the amount of R642 100,62, made up as follows:-

1. General damages:-

Contumelia R200 000,00

2. Special damages:-

9.2.1 Past loss of income R138 493,60

9.2.2 Future loss of income R280 000,00

9.2.3 Medical expenses R 1 977,62

9.2.4 Legal expenses R21 829,40”

[2] The fourth defendant Sybrandt Pienaar (Pienaar) is not part of these proceedings. The plaintiff did not proceed against Pienaar in respect of Claim 2.

[3] The sole issue for adjudication in the present action is the plaintiff’s quantum of damages following an earlier and separate action in which Blieden J found as follows:

“(1): It is declared that the arrest of the plaintiff on the 2^nd of October 2002 was unlawful, as was his subsequent detention up to and including 7 October 2002;

(2): The three defendants are ordered to pay the plaintiff’s costs of suit jointly and severally;

(3): The quantum of damages is postponed sine die.”

[4] The plaintiff was born on 15 March 1955. He was about 47 years at the time of the incident and about 52 years during the trial. At the time of the incident on 2 October 2002 the plaintiff was a businessman and sole member of a business known as Stage 1 Project Management CC with its principal place of trade at 6 Graham Street, Alberton (the plaintiff’s home). The close corporation was registered on 12 April 2000, the principal business being the marketing of tarpaulins and related products. However, the plaintiff, a divorcee with four children from a previous marriage, did not receive any income from Stage 1 Project Management CC at the time of his arrest. He derived his income from another close corporation called Eddie Higgo and Associates CC established in 1994 and of which he was the sole member. This close corporation was an advertising concern whose marketing, sales and quotations and invoicing was performed by the plaintiff personally from his home. Pienaar was also personally involved in Stage 1 Project Management CC through his entity PVC Weld CC situated at 24 Ellis Street, Alrode South (the burgled premises). I deal later with the income which plaintiff claims he received from Eddie Higgo and Associates CC.

[5] In June 2001, the plaintiff, representing Stage 1 Project Management CC, and Pienaar, on behalf of PVC Weld CC, entered into a joint venture. The purpose of the joint venture was, inter alia, to derive profit from the conversion of truck tarpaulins into chicken house covers, cricket pitch covers and banners. The plaintiff, through Stage 1 Project Management invested an amount in excess of R85 000,00 as well as certain machinery in the joint venture. Any profit would be shared equally with PVC Weld CC. Since the joint venture did not yield any profits, it was agreed in March 2002 to dissolve the venture as a going concern and that all the plaintiff’s contributions were to vest in a loan account in the joint venture. In August 2001 the venture purchased certain equipment consisting of welding machines, industrial sewing machines and materials which were financed by the plaintiff. However, in 2002 onwards, the joint venture continued to perform at a loss and various creditors knocked on its doors, threatening to attach the equipment described above. The relationship between plaintiff and Pienaar also deteriorated. On 28 September 2002, and after persuading the Sheriff of the Court not to attach, plaintiff removed from the burgled premises the equipment aforementioned including certain assets belonging to the joint venture, as security for the amounts and contributions owing by the joint venture to him and Stage 1 Project Management CC. The removal of the equipment immediately prompted Pienaar to lay housebreaking and theft charges against the plaintiff at the Brackendowns Police Station on 1 October 2002. As a result, the plaintiff was arrested on 2 October 2002, as described in more detail below.

[6] In his statement made to the Brackendowns Police on 2 October 2002, the plaintiff not only sketched the above details which led to Pienaar commencing criminal charges against him, but he also mentioned that he had access to the burgled premises at all material times through keys thereof which he kept, and that he removed the alleged stolen equipment and other items of the joint venture purely as security for monies owed to him by the joint venture. Indeed on his arrest, and in his statement above, he offered his full cooperation to the police to release the equipment upon certain guarantees being furnished by Pienaar. He denied any wrongfulness or unlawfulness in removing the equipment in the manner in which he did.

[7] In declaring as unlawful the arrest of the plaintiff on 2 October 2002 and his subsequent detention up to and including 7 October 2002, Blieden J accepted as credible the evidence of the plaintiff and his attorney Mr William Clark (Clark). The evidence is summarised as follows:

7.1 At 08h30 on 2^nd October 2002 three police officers, all dressed in civilian clothes accompanied by Pienaar, arrived at the plaintiff’s home. The three were the second and the third defendants and Insp Phoshoko (Phoshoko). They banged on the gate to attract attention. They were given the keys to the gate by the plaintiff’s secretary. Slightly later, on hearing further commotion at the gate, the plaintiff went to the gate to investigate. He could see that the police were armed. He asked them to identify themselves. After several requests, the third defendant produced his police identity card. The police told the plaintiff that they were from the Brackendowns Police Station and investigating a case of housebreaking and theft at the instance of Pienaar. However, the plaintiff on telephonic advice from Clark, refused the police entry without a search warrant or warrant of arrest which the police did not possess at that stage. Clark later arrived and consulted with the plaintiff. Whilst additional police officers had arrived at the gate, the second defendant and possibly also the third defendant left, ostensibly in order to have a warrant of arrest issued.

7.2 The plaintiff and Clark, in consultation with Phoshoko, voluntarily proceeded to the Brackendowns Police Station in their own vehicle. Phoshoko apparently treated the plaintiff and Clark in a human manner by providing them with a desk in a separate office where Clark resumed writing out plaintiff’s statement as detailed above. The plaintiff’s statement was sworn to at noon on 2 October 2002.

7.3 However, a short time before that, the second defendant who, as shown later, was hell-bent to have the plaintiff arrested and detained, arrived and announced that he was going to arrest and detain the plaintiff. He displayed to the plaintiff and Clark a piece of paper which he claimed was a warrant of arrest but he did not give it to either of them.

7.4 What is more relevant to the plaintiff’s present claim for damages is that once plaintiff’s statement was completed and handed to the police officers on duty at the charge office, the second and third defendants left the police station unannounced for the day in order to attend a police sports day in Germiston. This development clearly frustrated any attempts by Clark and the plaintiff to apply for bail in the event of the plaintiff being formally charged as second defendant was the investigating officer in the charges laid by Pienaar. Indeed numerous attempts by Clark to reach the second defendant on his cellphone were unsuccessful as the second defendant’s cellphone had been switched off.

5. As there was no detective officers available at the Brackendowns Police Station, at about 12h45 that same day, Clark telephoned the Head of the Brackendowns Police Station, Supt Gesteen on his cellphone. He suggested that Clark and the plaintiff proceed to the Katlehong Police Station where he would arrange for another officer to charge the plaintiff. Clark and the plaintiff followed a police sergeant in his van to the Katlehong Police Station with the express purpose of the plaintiff being formally charged there. However, on arrival there was no police officer available to do so.

5. To make matters worse, when eventually contacted on his cellphone that afternoon, the third defendant informed Clark that the plaintiff would not be charged until a second suspect in the matter had been arrested and that the “stolen goods” were produced by the plaintiff. However, the plaintiff was not prepared to accede to what was clearly extortion on the part of the police defendants. By this stage it was clear that the police officers regarded the plaintiff as having been arrested.

5. During the course of the same afternoon, Clark attempted to contact, and in some cases succeeded in telephonically contacting various officials including the senior public prosecutor of the Alberton Magistrate’s Court. However, all such efforts did not result in the plaintiff being charged that they (2 October 2002) and he had to spend the night in detention at the Katlehong Police Station cells.

5. In this Court the plaintiff testified that he was taken to the Katlehong police cells as there were no holding cells at the Brackendowns Police Station. At the Katlehong Police Station, which is situated in Katlehong Township, he was first bodily searched in a rather sarcastical manner by the inspector on duty because of his age and skin colour, he said. He was thereafter placed in a cell of about 17 inmates exclusively of black colour and speaking to themselves in black languages which he did not understand. He felt extremely insecure and concerned as he was decently dressed, having been to see a client earlier that day. He was never arrested before and did not expect to be arrested on that day. He feared that he could be sexually molested by the inmates. As a successful businessman, known as the “doctor” in the advertising industry, he could not adjust to the environment in the cells and observed each hour go by. There were as many mattresses and blankets as the inmates. He laid on his back in a corner for protection with his shoes on. There was an hourly head count and search. The blankets and mattresses were dilapidated and smelly. There was no food or sanitary facilities or toilet paper. There was a hole in the outside wall of the cell. Although he tried to control his emotions, he was, however, worried about his health as he suffered from high blood pressure and high cholesterol for which he did not have his daily medication, as he was denied a telephone to secure his medication. He slept in the hope of seeing Clark the next day.

5. The following morning (3 October 2002), the plaintiff testified that he was taken from the cells at about 09h00 by police officers and the second defendant sarcastically asked whether he enjoyed his stay in the cells. The plaintiff did not react.

5. The plaintiff was taken to the Alberton Magistrate’s Court in a police vehicle. On the way, he was told that the Katlehong police cells were no better than the Boksburg Prison cells unless he “played ball” in which event he would be released on bail. Once at the Alberton Magistrate’s Court, he understood that “playing ball” meant him revealing the “stolen goods” and the whereabouts of his accomplice.

5. He was kept in the holding cells at the court whilst Clark was negotiating bail with the police, including the second defendant, and the public prosecutor. In the holding cells, the toilet was blocked and the inmates were urinating into the washing basin. One inmate attempted to escape. At that stage the plaintiff had been without food or his medication from about 12 midday the previous day. Prior to his court appearance, the plaintiff had again offered to cooperate with the police, in particular the third defendant in showing them the “stolen goods” at an identified warehouse as well as furnishing the cellphone number of the second suspect, Michael Slade, his business partner. Whilst the third defendant accepted as satisfactory the plaintiff’s cooperation in order for the police not to oppose bail, the second defendant, as the investigating officer, opposed any granting of bail. The matter was eventually postponed to 7 October 2002 for a formal bail application in spite of Clark’s vociferous opposition thereto and the plaintiff’s favourable and compelling personal circumstances entitling him to be released on bail for what appeared to be a civil dispute between plaintiff and Pienaar.

5. In this Court, the plaintiff testified how he was conveyed, squeezed in a police truck to the Boksburg Prison where he arrived at about 16h30 on 3 October 2002. He was placed in a cell of about 36 inmates which normally accommodated about 18 prisoners. One of the inmates slapped him in the face for no apparent reason. The cell was not only overcrowded but also unhygienic. The conditions were, according to the plaintiff, worse than the Katlehong police cells. It then dawned on the plaintiff that the second defendant was in fact correct in his earlier threats and had succeeded in carrying out his objective. The inmates slept on mattresses. Three of the inmates demanded the plaintiff’s neck chain but the plaintiff resisted. He testified that he felt insecure and tense. He slept without food and his medication.

5. On the morning of 4 October 2002 the plaintiff was taken out of the cells for medical examination which excluded blood pressure or cholesterol tests. The plaintiff decided not to complain to the medical staff because of their negative attitude. Neither did he ask for medication for the same reason. The plaintiff also admitted that he chose not to eat prison food until he went back to court on 7 October 2002. He testified that the food was of extremely poor quality and not conducive to his health condition. He was conveniently out of the cell during meal times. He recalled that at the Katlehong cells he declined the food as the bread was extremely dry and stale and the eggs hardboiled, and inserted in his bread was a cigarette stub.

5. In the Boksburg Prison he also declined to eat the lunch meals which consisted of mealiepap and fatty pork which was contra-indicated for his health condition. The inmates smoked dagga and other drugs were freely available. In answer to questions from the court, the plaintiff testified that at the time, he had no family in Gauteng as all his family was in Cape Town, including his mother. His girlfriend too, did not visit him in prison in order to bring him food or his much needed medication for the duration of his incarceration. The routine in prison was pretty much the same. The inmates were taken out for exercises in the mornings. After lunch and at about 14h00, they were locked up until about 06h00 the next morning with the interval head counts. The plaintiff was saved from any assault or initiation by prison gangs (e.g. the 26 gang) as he befriended what he called “the general of one gang”. His condition worsened as he continued not to eat out of choice and without his medication. He had no toothbrush and did not take a bath for fear of attracting sexual molestation from the inmates. The plaintiff conceded that he could have obtained his medication or acceptable food from the prison tuck-shop or health section.

5. It is common cause that the plaintiff appeared in the Alberton Magistrate’s Court on 7 October 2002. He was released on bail. The matter was postponed to 24 October 2002. On the latter date, the charges were withdrawn against him by the State. The plaintiff therefore spent five nights in detention.

5. On his release from prison on 7 October 2002 the plaintiff testified that he was traumatised, belittled and humiliated. His self-esteem and concentration levels were low. He had some worrying marks on his body caused by lice and flea bites. The plaintiff was examined by Dr I D Campbell, not his regular general practitioner, on 7 October 2002. Dr Campbell made the following findings: “… He is emotionally distressed. Clothing dirty. Three x Bites on Back are on chest compatible with flea, lice or other Bites. He was without his Blood pressure and cholesterol pills but luckily his Blood pressure is still under control. No physical injuries observed.” Dr Campbell’s report was not challenged. Dr Campbell advised the plaintiff to consult with his regular family practitioner, Dr L H Brits.

5. The plaintiff testified that after his arrest from prison, he developed an alcoholic problem, depression, sleeplessness, and he could no longer work extended hours in his business. On 19 November 2002 he saw Dr Brits in Alberton. According to a letter from Dr Brits which is found on page 16 of Annexure “D” of the plaintiff’s bundle on quantum documents, the plaintiff displayed the following symptoms: grinding of teeth, insomnia, agitation, emotional lability and increased smoking. Dr Brits prescribed certain medication, including Stillnox (for sleeplessness); Norflex and Orelox for pain in the eardrum and medication for depression. The plaintiff testified that he took the Stillnox for about 18 months and the depression medication for 8 months.

5. On the advice of Dr Brits, the plaintiff consulted with Dr M C van Tonder, a clinical psychologist, on 27 November 2002. The findings of Dr Van Tonder, after conducting the Million Inventory of Personality Styles (MIPS) tests, are rather significant. Although Dr Van Tonder found that the plaintiff did experience a significant level of emotional discomfort, he was of the opinion, however, that the plaintiff had a tendency of exaggerating “negative symptoms of himself, which need to be taken into consideration when interpreting the results of the tests … in an attempt to establish any personal injury sustained by the patient”. Dr Van Tonder was not called as a witness but his report forms part of the plaintiff’s bundle of papers, Annexure “A”. On the last page of his report, Dr Van Tonder observed as follows: “According to the MIPS results obtained on 27 November 2002 the testee’s subjective complaints of anxiety, anhedonism as well as reduced energy and motivation taking any initiative are substantiated. The test results do not however suggest that the former complaint can be solely accredited to a past traumatic event. The results suggest that the emotional discomfort currently experienced may be partially caused by personality traits that already existed prior to the traumatic event.”

5. The plaintiff testified that the several sessions he had with Dr Van Tonder did not benefit him from a psychological point of view as he still had flashbacks of the detention trauma when he encountered motor vehicles of SAPS or Metro cops. He consulted Dr Campbell for a second opinion. In cross-examination, when confronted with Dr Van Tonder’s assessment that he was exaggerating his symptoms, the plaintiff responded that he approached Dr Van Tonder for help, told him the truth, and that Dr Van Tonder was entitled to his opinion. He further testified in cross-examination that Dr Campbell was not aware of the diagnosis of his pre-existing condition but referred him to Dr Brits who had initially been unavailable. He said he survived in detention as he was happy to be released. Dr Brits told him that the eardrum infection was caused by the grinding of his teeth which in turn led to headache. After Dr Campbell he saw Dr Brits regularly to check his high blood pressure and cholesterol. He did not see a specialist in this regard. The plaintiff confirmed in cross-examination that whilst in detention he neither informed the prison authorities of his medical condition (high blood pressure and cholesterol), nor did he ask them for the applicable medication. It was his choice not to bath or to eat prison food which food was the same for all prisoners. He was aware that some prisoners who had cash bought food from the prison tuck-shop, however, he did not have cash as his arrest and subsequent detention were unexpected.

6. Dr G J Maree, a clinical psychologist in private practice, testified that he consulted with the plaintiff in November 2004 as well as at the commencement of this trial. He confirmed his report dated 1 December 2004 which appears on pages 8-15 of Exhibit “D”, plaintiff’s bundle on quantum. According to Dr Maree, the plaintiff presented symptoms of post-traumatic stress, in the form of insomnia, hyper alertness, recurrent nightmares about his time of detention in gaol, flashbacks, fright reaction when presented with stimuli related to his arrest and detention, short-term memory loss, and aggressive outbursts. Dr Maree conducted a structured clinical interview with the plaintiff as well as two sessions of psychotherapy. His evaluation was based on the Minnesota Multiple Personality Index-2 (MMPI-2) test, as well as the Million Clinical Multiaxial Inventory-III (MCMI-III) test. Dr Maree concluded that the plaintiff, a generally anxious and shy person, has suffered a post-traumatic stress disorder as a result of his arrest and detention. He went on to say that: “Mr Higgo seems to have suffered from diagnostical symptoms of his condition for at least 5 months after the incident, and still experience mild symptoms.” Further on, Dr Maree stated: “Mr Higgo seem to have recovered well, but still suffers from some symptoms of his disorder. He also portrays some symptoms of generalised anxiety disorder. He has a good prognosis and it is foreseen that he will function appropriately in the future.”

5. In cross-examination, Dr Maree acknowledged readily that, whereas Dr Van Tonder saw the plaintiff about a month after the incident, he only saw the plaintiff about two years after the arrest and detention. He also acknowledges that he was not aware of Dr Van Tonder’s report. He noted that Dr Van Tonder was of the view that the plaintiff had the tendency to exaggerate his symptoms. Dr Maree was, however, of the opposite view. Dr Maree expressed the opinion that within a month of the incident, an interim diagnosis is made with later progression into post-traumatic stress disorder. As far as the prison conditions are concerned, Dr Maree conceded the possibility that the plaintiff exaggerated such conditions. As a clinical psychologist, Dr Maree could not express an opinion on whether the plaintiff, with high blood pressure and high cholesterol, could survive in detention without medication and food for five days. According to Dr Maree post-traumatic stress disorder is triggered by a specific traumatic event, and does not occur generally. Dr Maree was told by the plaintiff, which he accepted, that the plaintiff still experience flashbacks of the incident when he saw motor vehicles belonging to the SAPS and Metro cops.

5. In answer to questions by the court, Dr Maree testified that the thousands of inmates in overcrowded prisons could also be suffering from traumatic stress which could add to the problem. He encountered that the plaintiff was not a seasoned criminal who knew the criminal justice system and could adapt to it. The SAPS were arrogant in their treatment of the plaintiff. Further that the consumption of alcohol would not have an effect on post-traumatic stress disorder unless in cases of excessive consumption. Dr Maree was adamant in his view that his findings were not contradictory to the report of Dr Van Tonder. He recommended medication and psychotherapy for the plaintiff’s current symptoms.

5. In determining the issue of liability in favour of the plaintiff, Blieden J found that the evidence of Pienaar was not helpful at all and in fact was biased in favour of the defendants. Further, that the second and the third defendants were motivated purely by a wish to humiliate and intimidate the plaintiff as much as possible. Neither the second nor third defendants pursued the investigation of the matter in any way once the plaintiff had been released on bail, and their evidence was not only contradictory but also unsatisfactory. After listening to the evidence of the plaintiff in this trial, I am unable, with respect, to disagree with Blieden J that the conduct of the second and the third defendants can only be construed as mala fides on their part. In particular, I find that the detention of the plaintiff in the Katlehong police cells was purposely done to harass and humiliate him. Phoshoko was not called by the defendants in the trial before Blieden J as he was reported to be too ill to come to court.

[8] In this Court, the evidence of the plaintiff on his loss of earnings was indeed hugely problematic and, as a result, largely difficult to link to his arrest and subsequent detention. In argument, I drew the attention of plaintiff’s counsel to the difficulties I had in this regard. I deal with these difficulties instantly hereunder as contained in the evidence of the plaintiff and his cross-examination in regard thereto.

[9] In an affidavit deposed to by him in support of his bail application on 7 October 2002, the plaintiff stated that he was self-employed and the sole member of Stage 1 Design CC and Stage 1 Project Management CC, and had an income of R13 000,00 per month. The affidavit is part of the plaintiff’s bundle, on pages 58-62 of Exhibit “A”. However, when he testified, the plaintiff confirmed that he received no income from the entities mentioned in the affidavit above. He derived his income from the entity Eddie Higgo and Associates CC. It was also later argued on his behalf that the earnings of R13 000,00 per month mentioned above, was not a reliable yardstick. The plaintiff testified that the R13 000,00, which fluctuated occasionally, represented cash drawings from the close corporation over and above expenses such as credit card expenses paid by the close corporation.

[10] In support of his claim for loss of income, and his assertion that his business, conducted through Eddie Higgo and Associates CC, subsequently collapsed completely at the end of 2006 and as a result of his arrest and detention, the plaintiff relied on and testified on various documentation. The documentation include:

1. A monthly analysis of turnover of Eddie Higgo and Associates from 1 March 2000 – 30 October 2002 (hereinafter called “the turnover”);

2. Various ledger printouts of Eddie Higgo and Associates for the period 1 March 2000 – 28 February 2005 (hereinafter called “the ledgers”);

3. Absa Bank account statements of Eddie Higgo and Associates CC for the period 31 December 1999 – 28 February 2006 (hereinafter “the Absa Bank statements”); and

4. A cheque presentation enquiry by Eddie Higgo and Associates CC for the period 1 March 2006 – 10 April 2006 (hereinafter called “the cheque presentation enquiry”).

[11] The plaintiff testified that he received no income from Stage 1 Project Management CC. The financial statements of this entity for the period 28 February 2002 attached to his bundle of quantum papers are therefore irrelevant.

[12] In essence, the plaintiff testified that his claim for loss of earnings is based on the turnover and the Absa Bank statements. He said that clients normally deposited monies for services rendered by him into the bank account within 30 days. However, in his absence during his detention no deposits were made. The turnover, which consists of a quarter page, appears on page 29 of Exhibit “D”, the plaintiff’s bundle and quantum. According to the plaintiff, the turnover was compiled by his bookkeepers based on the Absa Bank’s statements. The turnover reflects figures and income for the tax years 2001, 2002 and 2003. The income for 2001 was R1 387 754,00 which translated into a monthly income of about R115 646, 00. For 2002 the income was R809 237,00 which gave a monthly income of about R67 436,00. From this amount the plaintiff testified that he took drawings of between R30 000,00 and R60 000,00 and placed the rest into his personal account. For the tax year 2003 the income on the turnover was R373 089,00 which gave a monthly income of about R46 436,00. The plaintiff said that his income dropped from 2002 to 2003 because he worked reduced hours as a result of his increased alcohol consumption, stress, lack of concentration and drowsiness caused by medication. In the process, he lost clients to rivals. Due to his condition, his business deteriorated. In 2005 his mother came from Cape Town and gave him R15 000,00 to boost the business, which did not help. At the end of 2006 he closed the business and relocated to Cape Town where he stayed with his mother. He became employed in Cape Town at a salary of about R11 500,00 per month plus 5% commission.

[13] In cross-examination and as far as the Absa Bank statements are concerned, the plaintiff testified that the deposits of R20 827,80 made into the account on 29 October 2002; R16 000,00 on 6 November 2002; R38 201,20 on 18 November 2002, and R24 624,00 on 5 December 2002 represented payments made by clients for services rendered by the plaintiff after his release from detention. There are also other deposits made into the account subsequently. He repeated that the R13 000,00 per month mentioned in his bail application affidavit was his income at the time of his arrest on 2 October 2002. It was an estimate of his drawings which fluctuated depending on the cash flow of the close corporation. Still under cross-examination, the plaintiff testified that he could not remember the qualifications or names of his bookkeepers who prepared the turnover on which his claim was based. He could also not recall the name of his chartered accountant. However, in re-examination he testified that the bookkeeper was one Lourens who could not have made a mistake in compiling the turnover based on the Absa Bank’s statements. He still owed the bookkeeper R4 000,00 and the bookkeeper refused to provide any further information on the full and proper financial statements of the close corporation. The plaintiff admitted in cross-examination that although he claimed that both the close corporation and he personally were registered for income tax purposes, no proof in this regard was included in his bundle of papers. He relied on the “financial people” to attend to matters of income tax who also kept all his income tax records. He however, claimed that he paid income tax but no supporting documentation was provided. Then quite strangely, the plaintiff testified, still under cross-examination, that his drawings from the close corporation was about R10 000,00 per month prior to tax, and its disbursements were for the account of the close corporation of which he was the sole member. In respect of his claims for past and future loss of income in paras 9.2.1 and 9.2.2 of the particulars of claim, the plaintiff testified that these amounts represented the turnover of the close corporation for which there were no income tax returns. He denied that the business of the close corporation collapsed in only five days when he was in detention. The joint venture referred to earlier in this judgment, was not performing well at all and he gave it up. The joint venture operated under the control of Pienaar until December 2002.

[14] At the end of the plaintiff’s case, the defendants closed their case without leading any evidence.

[15] The plaintiff’s claim in respect of medical expenses (R1 977,62) and legal expenses (R21 829,40) were admitted by the defendants’ counsel during argument. The concession was well made. There is therefore no reason why these heads of damages should not be awarded to the plaintiff. However, the plaintiff’s claim in respect of general damages and loss of income remained heavily contested.

[16] I now deal with the plaintiff’s claim for general damages, a matter in which I am enjoined with a wide discretion on proven facts. See in this regard Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at 169E-F. Counsel for the plaintiff, in a rather passionate, eloquent and persuasive manner, urged me to award an amount in the region of between R30 000,00-R33 000,00 per day for the five nights during which the plaintiff was in detention. She argued that there was increased maliciousness and vindictiveness on the part of the police in their treatment of the plaintiff. She also referred me to awards made in several other cases. These cases include Tobani v Minister of Correctional Services 2003 (5) SA 126 (E); Manase v Minister of Safety and Security 2003 (1) SA 567 (CK); Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC); Todt v Ipser 1993 (3) SA 577 (A); Bentley and Another v McPherson 1999 (3) SA 854 (ECD); Seymour v Minister of Safety and Security 2006 (5) SA 495 (W); Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (AD); Erasmus v Pavis 1969 (2) SA 1 (A); and Ngubane v S A Transport Services [1990] ZASCA 148; 1991 (1) SA 756.

16.1 On the other hand, counsel for the defendants contended for a much lesser award, mainly on the submission that the plaintiff was exaggerating the conditions of his detention caused by his own personal traits; that the plaintiff was exaggerating also his post-traumatic stress disorder; and that there was no evidence of any conspiracy between Pienaar and the police. Counsel for the defendants relied on, inter alia, the case of Thandani v Minister of Law and Order 1991 (1) SA 702 (CD). It is trite that each case must be decided on its own merits as no two cases are the same and that awards in previous comparable cases serve as guidelines only. Indeed, in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199, Watermeyer JA said: “… It must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge’s view as to what is fair in all circumstances of the case.” In the case of Thandani v Minister of Law and Order (supra), the court found that there was a reckless disregard of the rights of the plaintiff by members of the South African Police Force. The arrest of the plaintiff, a full-time organiser of the General Workers Union at his place of employment, and his subsequent detention in a cell for a period of 68 days, was unlawful. The court awarded general damages of R22 000,00 with costs. The award of R500 000,00 general damages for unlawful arrest and detention for a period of five days made in Seymour v Minister of Safety and Security (supra), was substantially reduced on appeal in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), to R90 000,00. The Appeal Court considered the fact that the claimant, a 63 years old man, had had free access to his family and doctor throughout his detention, that he had suffered no degradation beyond that inherent in being arrested and detained; that after the first 24 hours he had spent the remainder of his detention in a hospital bed; that although the experience had been traumatic and distressing, it warranted no further medical attention after his release, and that, whilst he had been diagnosed as suffering from depression and anxiety after the incident, it was not attributable solely to his arrest and detention.

2. In the present matter, the plaintiff spent five nights in detention before he was released on bail on 7 October 2002. He was a businessman in his own right. His evidence that he was regarded as “the dr” in the advertising industry was not placed in issue. His detention in the Katlehong police cells, as a first-time detainee, must have been particularly and deeply traumatic. His arrest and detention as well as the second defendant’s opposition to his release on bail, were unjustified. His problems with Pienaar were of a purely civil nature, as opposed to criminal conduct on his part. The second and third defendants were more than intend in having the plaintiff arrested and detained at all costs. In rejecting the version of the second and the third defendants, Blieden J found that “they went out of their way not to investigate whether they had a reasonable suspicion to arrest the plaintiff by not putting his statement to Pienaar at any stage during their investigations. Their conduct can only be construed as mala fides on their part.” When he was fetched from the Katlehong police cells on the morning of 2 October 2002, the plaintiff was not only taunted by the second defendant about whether he enjoyed his stay in there, but he was also warned that the conditions in the Boksburg prison cells were no better, unless he “played ball”. These constitute aggravating features.

16.3 In May v Union Government 1954 (3) SA 120 (N) at p 130, Watermeyer J said: “Our law has always regarded the deprivation of personal liberty as a serious injury, and where the deprivation carries with it the imputation of criminal conduct of which there was no reasonable suspicion the injury is very serious indeed.” The case involved the unlawful arrest and detention of an advocate of good reputation who was arrested for a few hours only on baseless charges.

16.4 S 10 of our Constitution (the Constitution of the Republic of South Africa 1996) stipulates that: “Everyone has inherent dignity and the right to have their dignity respected and protected.” S 12 of our Constitution gives everyone 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’. S 14 confers on everyone the right to privacy. In addition, s 35 gives detailed rights to arrested, detained and accused persons, including the right to be brought expeditiously to court, to be released if the interests of justice permit and upon reasonable conditions, to humane conditions of detention, including medical treatment, and to be informed of the reasons for the detention. In the present matter, save that the plaintiff was taken to court (although reluctantly) timeously (on 3 October 2002), and that the plaintiff voluntarily did not disclose his medical condition and the treatment therefor to the police and prison authorities, all his rights in terms of the Constitution just mentioned, were to some extent, violated. In Solomon v Visser and Another 1972 (2) SA 327 (CPD), at 345D, Steyn J stated: “On the other hand the police have considerable powers, and should they exceed or abuse those powers and they injure the individual, the court must, in my view, not hesitate to compensate the citizen in full measure for any humiliation, indignity and harm which results.”

16.5 In the instant matter, I however find that the plaintiff, to a large extent, contributed to his plight. Before and on his arrest, and during his five days in detention, he had free access and assistance to his attorney, Clark. He had a girlfriend who was locally based. He never contacted these persons to either visit him in detention, or to secure his medication for high blood pressure and high cholesterol. He chose not to inform the police or prison authorities of his medical condition. In particular, in the Boksburg Prison, he did not ask from the medical staff for his medication. He also chose not to bath or partake of the prison food which he described as unpalatable. He is not unsophisticated as a businessman. Furthermore, there is no evidence that he informed the magistrate about his medical condition or medication requirements on 3 October 2002 when he was remanded in custody. Such information only appears in his affidavit in support of his bail application on 7 October 2002. There is also the possibility that the plaintiff possibly exaggerated the conditions of his detention. All these factors, cumulatively considered, must of necessity, in my view, affect the award to be made for general damages. (Cf Tobani and Minister of Correctional Services (supra).) The plaintiff was also not assaulted save as mentioned earlier, or threatened in any way in detention. He claims R200 000,00. In all the circumstances of this case, I am of the view that an award of R150 000,00 will be fair and appropriate in the circumstances. The present matter is distinguishable in several respects from the facts in the Minister of Safety and Security v Seymour (supra).

[17] I now deal with the plaintiff’s claim for past and future loss of income as a result of the incident. It is trite law that the plaintiff bore the onus of proving that the defendants committed an act which caused him damages and that he was also required to prove the resultant damages. See in this regard Molepo and Another v Phoshoko and Another (2006) 4 All SA 157 (T). In the present matter, the crisp question is whether the post-traumatic stress disorder diagnosed in the plaintiff, led to his inability to perform his work, reduced income of the close corporation, and the final closure of his business in December 2006, as he claimed. In Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), at 448 para 24, Nugent JA said: “What remains to be considered is whether the negligence was a cause of the respondent being shot. In International Shipping Co (Pty) Ltd v Bentley it was pointed out by Corbett JA that causation involves two distinct enquiries. The first enquiry is whether the wrongful conduct was a factual cause of the loss. The second is whether in law it ought to be regarded as a cause. Regarding the first enquiry he said the following: ‘The enquiry as to factual causation is generally conducted by applying the so-called “but-for” test, which is designed to determine whether a postulated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one must make a hypothetical enquiry as to what probably would have happened but for the wrongful conduct of the defendant. This enquiry may involve the mental elimination of the wrongful conduct and the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether upon such a hypothesis plaintiff’s loss would have ensued or not. If it would in any event have ensued, then the wrongful conduct was not a cause of the loss, aliter, if it would not have ensued.’” See also Minister van Veiligheid en Sekuriteit v Geldenhuis 2004 (1) SA 515 (HHA).

[18] The plaintiff was the sole member of the close corporation, Eddie Higgo and Associates CC. As stated earlier, the basis of his claim for loss of earnings is the turnover and the Absa Bank statements, which is inherently and hugely problematic. The authenticity of the turnover is highly questionable as the qualifications of the bookkeeper who prepared it has not been proved. Neither the bookkeeper nor the auditors testified. No explanation was tendered in this regard. The turnover does not extend to the period end of December 2006 when the plaintiff claims he was compelled to close the business. Furthermore, the turnover shows an income of R93 174,00 and R224 519,00 for the months of October and November 2002 respectively. For October 2003, the turnover shows an income of R25 070,00 and no income at all onwards. All the above income was earned after the release from detention of the plaintiff (7 October 2002). Similarly, the Absa Bank statements, on which the turnover is based, are less helpful. The Absa Bank statements, once more, do not extend to the period December 2006 being the date on which the plaintiff alleges he closed the business. As stated earlier, the Absa Bank statements showed that the close corporation had income at the end of October 2002, namely R7 752,00 (25 October 2002) and R20 827,80 (29 October 2002). The plaintiff testified that this was income for work performed by him. There was also income for November 2002, namely R16 000,00 (6 November 2002) and R38 201,20 (18 November 2002). Indeed, the Absa Bank statements which end on 28 February 2006, reflect various amounts deposited into the account. The cheque presentation enquiry for the period 1 March 2006 to 10 April 2006, referred to earlier, does not take the matter any further. More strange is that the bank statements show that various cheques for differing amounts were drawn on the account between the period October 2002 to January 2006 with the reference “Head Office”. There were also various withdrawals made from the account for the same period. All of these have not been fully explained. The only reasonable inference to be made is that the plaintiff, as the sole member of the close corporation, benefited exclusively from such transactions. In addition, the plaintiff could not produce any income tax documentation for either himself personally or for the close corporation. This, in my view, further muddles up the plaintiff’s claim that he could no longer function properly in the business after his release from detention as a result of the stress disorder. He testified that he began to consume alcohol excessively after 7 October 2002, could not work longer hours due to lack of concentration. In these circumstances, it is possible that alcohol contributed largely or exclusively to the decline and ultimate collapse of the business. The medical evidence of Dr Maree does not advance at all the plaintiff’s case for loss of earnings. According to Dr Maree the diagnostical symptoms suffered by the plaintiff would persist for at least five months after 7 October 2002. In other words, the plaintiff’s condition would have lasted until about March 2003. Dr Maree concluded that the plaintiff had a good prognosis, and as at 1 December 2004 (the date of his report), it was foreseen that the plaintiff would function well in the future. Indeed, the plaintiff continued with the business after his release from detention, although not functioning maximally. He finally closed the business at the end of 2006. He relocated to Cape Town where he became employed in the same industry. The evidence of Dr Maree is in any event contradicted by that of Dr Van Tonder, as stated earlier.

[19] The conclusion that the turnover and Absa Bank statements failed dismally to lay any reliable basis for the plaintiff’s claim of loss of earnings, and that the final closure of his business had no causal link with his arrest and detention, is irresistible and inexorable. The claim must fail. He has provided no documentary proof of clients whose contracts the close corporation lost as a result of his arrest and detention.

[20] If I am wrong in the above approach, there is yet another reason why the plaintiff’s claim for loss of income is untenable in the present circumstances. Indeed, the plaintiff relies for his claim on the turnover and Absa Bank statements of Eddie Higgo and Associates CC. The plaintiff’s claim is founded on his personal claim for unlawful arrest and detention. There is no proof or documentation at all showing the plaintiff’s personal loss of income as a result of the unlawful arrest and detention, even if he claims that he was the sole member of the close corporation. It is trite law that an entity such as Eddie Higgo and Associates CC, like a company, is a separate legal persona distinct from its members. It follows therefore that any loss which may have been suffered as a result of the incident is a loss to the close corporation and not to the plaintiff’s private estate. In essence, the plaintiff’s private estate has not been affected due to his arrest and subsequent detention and resultant traumatic stress disorder which he claims rendered him incapable of running the business. See in this regard Rudman v Road Accident Fund 2003 (2) SA 234 (SCA).

[21] In any event, the plaintiff testified that the absence of his own personal income tax returns, those of the close corporation, and audited statements was due to the fact that he left all matters relevant thereto to his “financial people”. His income of R13 000,00 per month which he provided to the magistrate during his bail application was not supported by any documentary proof.

[22] The conclusion is that the plaintiff has failed to discharge the onus of proving his claim in respect of past and future loss of income.

[23] For all the aforegoing reasons, the first, second and third defendants, jointly and severally, the one paying the other to be absolved, are ordered to pay the plaintiff’s damages, within 14 days from the date hereof, as follows:

23.1 The sum of R150 000,00 in respect of general damages.

23.2 The sum of R1 977,62 in respect of medical expenses.

23.3 The sum of R21 829,40 in respect of legal expenses.

23.4 Interest on the above amounts at the rate of 15,5% per annum a tempore morae.

23.5 The plaintiff’s claim for loss of earnings is dismissed.

23.6 Costs of suit.

_________________________

D S S MOSHIDI

JUDGE OF THE HIGH COURT

(WITWATERSRAND LOCAL DIVISION)

COUNSEL FOR THE PLAINTIFF ADV E KILIAN

INSTRUCTED BY SHABAN CLARK ATTORNEYS

COUNSEL FOR THE DEFENDANTS ADV L P NOBANDA

INSTRUCTED BY THE STATE ATTORNEY

DATE OF HEARING 7 SEPTEMBER 2007

DATE OF JUDGMENT 30 JANUARY 2008

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