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IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 14132/13

6/4/2020

 

OLUNTUNFETSE TEMITOPE ORIYOMI                                               PLAINTIFF

 

and

 
MINISTER OF POLICE                                                                          DEFENDANT

JUDGMENT

KHUMALO J

Introduction

[1]        The Plaintiff in this action, Ms Oluntunfetse Temitope Oriyomi (“Oriyomi"), a young administration clerk at a Church, is suing the Minister of Police, the Defendant for her unlawful arrest and detention by the members of the South African Police Services ("SAPS") on 4 January 2012. Oriyomi's initial claim was for damages in an amount of R1 500 000.00.

[2]          The arrest took place at Oriyomi's residence at 22h00 at night. She was detained and kept in custody at the Douglasdale Police Station until 6 January 2012. As of 6 January 2012 her incarceration continued at the Johannesburg Correctional Centre, Diepkloof (referred to as ··sun City") until 26 January 2012 allegedly at the instance of the Randburg Magistrate Court, who remanded her in custody for all that period.

[3]          At the time Oriyomi was arrested on a suspicion of having been found in possession of a stolen property, to wit, a cellphone, reported to have been stolen during an armed robbery in Fourways Crossing. The arrest and detention of Oriyomi is common cause.

[4]          The Defendant, the Minister of Police, is cited in his official capacity as the Member of the Executive Council vicariously liable as the employer, for wrongdoing by the members of the SAPS, being the head of the Ministry ('the Minister") in terms of s 2 of the State Liability Act 20 of 1975.

[5]          In her particulars of claim Oriyomi averred that she was unlawfully and intentionally arrested by a Constable Selekedi and other members of the SAPS without a warrant. She was detained at the Randburg Police Station cells for 3 days from 3 to 6 January 2012 and from then on at Sun City after which all charges against her were withdrawn and she was released on 26 January 2012.

[6]          She avers that as a direct result of the arrest and detention she lost her employment for a period of four (4) months. She also suffered a loss in the amount of R1 500 000.00 which includes the following:

 

[6.1]  Loss of Income         R15 000

[6.2]  Unlawful Arrest         R25 000

[6.3]  Unlawful detention  R250 000

[6.4]  Malicious prosecution         R460 000

[6.5]  Deprivation of freedom        R250 000

[6.6]  Pain and Suffering   250 000

[6.7]  Legal cost paid to attorney R25 000

 

[7]          The Defendant's initial Plea was a bare denial, denying any knowledge about the incident or that the members of the SAPS were involved in Oyiromi's unlawful arrest and detention. The Plea was later amended and the Defendant admitted to the arrest and detention of Oriyomi by the members of SAPS and that they were acting within the course and scope of their employment, albeit alleging that the arrest was lawful, and on a suspicion of robbery, an offence referred to in Schedule 1 of the Criminal Procedure Act, therefore in compliance with s 40 (1) (b) of Act 51 of 1977. The Defendant however contended that further detention was at the behest of the court, therefore as the Minister of Police not liable. The charges were subsequently withdrawn on 26 January 2012.

[8]          When the trial commenced, the issues between the parties was whether the arrest and detention of Oriyomi was lawful and if not, if she was entitled to damages he was claiming.

[9]          Oriyomi's particulars were subsequently amended to indicate that her arrest and detention at the instance oftbe Defendant was actually on 4 January 2012 until the 6 January 2012 as per the Defendant plea. The court was also infonned that Constable Sekeledi responsible for Oriyomi's arrest was deceased.

[10]      It was also pointed out by the parties that at the pre-trial conference, the facts agreed upon was that on the date of the arrest Oriyomi was in possession of a cellphone that had been reported purportedly stolen or robbed in an armed robbery case that was opened at Douglasdale Police Station.

[11]       Furthermore that Oriyomi furnished the police with a receipt and or purchase note for the cellular phone after 6 January 2012 after her first court appearance.

[12]       The parties agreed that the matter would be proceeding on both the issue of merits and quantum. The Defendant had the duty to begin and bore the onus of proof that the arrest and detention of the Plaintiff was lawful.

 

Defendant's Evidence

[13]       The evidence was led only by the Defendant who had only one witness to testify, Colonel May ("May"), a detective stationed at Douglasdale Police Station, where Constable Sekeledi was also stationed and the cases relating to the stolen cellphone were opened. May's testimony was briefly that;

(i)            He had access and an opportunity to peruse the docket on CAS 543/7/2011 and CAS 71/01/2012 opened at the Douglasdae Police Station. The information on CAS 543/2011 was that a Nokia E7 cellphone with Ifvffil number 354864047906764 was reported stolen during an armed robbery at an MTN shop in Fourways Crossing upon which the case was opened.

(ii)          On CAS71/0l/2012 Sekeledi filed a statement that he received information that the Nokia E7 cell phone was being used with cell phone number 0732346572. Sekeledi phoned the number and Oriyomi answered. He in that instance obtained Oriyomi's residential address. On 4 January 2012 Sekeledi went to Oriyomi's residence and interviewed her about the phone. Oriyomi told Sekeledi that her uncle from Nigeria bought her the phone. However Oriyomi could not produce the slip/receipt and the box as a result Sekeledi arrested her.

(iii)         When May was asked his opinion on Sekeledi's conduct May said he cannot answer for Sekeledi but if it was him who confronted Oriyomi he could have asked for proof and an explanation as to why Oriyomi could not produce a receipt or a box and if the explanation is not acceptable then arrest her. He could not answer what was put to him about Oriyomi allegedly telephoning her uncle in the presence of Sekeledi. Also that Oriyomi alleges that her uncle then confirmed that he gave her the phone. May conceded that he could have made more enquiries before deciding to arrest the deceased.

(iv)         Colonel May confirmed that Oriyomi was arrested on suspicion of being in possession of stolen property, but she was detained for business robbery and warned on a charge of possession of stolen property. She was charged with business robbery when she appeared in court. Sekeledi indicated even before Oriyomi's appearance on 6 January 2012 that he, as the investigating officer was not opposed to bail and leaving the setting of conditions to the court. The warning statement was on the suspected stolen cellphone. Sekeledi had also indicated that an investigation was still going to follow with regard to Oriyomi's alibi. May confirmed that in the armed robbery docket only one person was charged and the name of Oriyomi does not appear.

(v)          Furthermore May testified that Sekeledi filed a further affidavit in which he confirmed that Oriyomi provided him with a receipt from a shop in Nigeria which Sekeledi accepted as proof of purchase of the phone and that the case was subsequently withdrawn. It was evident that the prosecution decided to charge Oriyomi of armed robbery even though Sekeledi had not arrested her on that charge. Bail was denied on that basis even though Sekeledi did not oppose bail.

(vi)         In addition, May confinned that other people who were found with stolen phones from the robbery were not arrested but given an opportunity to prove that they were not aware that they were stolen.

 

[14]       At the end of Colonel May's testimony, the Defendant conceded that Oriyomi's arrest and detention from 4 January until the date she appeared in court on 6 January 2012 was unlawful. She appeared in court as an accused to a charge of business robbery.

[15]       Consequently being satisfied that the concession was appropriate the issue of merits was resolved on the basis that the Defendant was liable to Oriyomi's damages proven to have resultant from her unlawful arrest and detention from 4 January 2012 to 6 January 2012. The parties themselves agreed that damages relating to malicious prosecution should in fact be brought against the Minister of Justice. I therefore did not have to deal with the issue of Oriyomi's detention beyond 6 January 2012 also because she did not plead unlawful arrest and detention beyond 6 January 2012.

 

On Quantum

[16]       No evidence was led in this regard. Parties argued reliant on the documents both parties had discovered. Oriyomi was required to prove the quantum of damages she allegedly suffered as a result of the Defendant's unlawful arrest and detention.

[17]       Mr Masipa who appeared for Oriyomi indicated to the court that Oriyomi was not proceeding with some of the heads of damages. She abandoned her claim for loss of income and malicious prosecution. The heads on Deprivation of freedom, Pain and Suffering, remained together with the main heads, which is the unlawful arrest and detention.

[18]       The Plaintiff argued both unlawful arrest and deprivation of freedom as one head of damages. Unlawful detention and pain and suffering as the other.

 

Unlawful arrest and deprivation of freedom

[19]       On unlawful arrest and deprivation of freedom Mr Masipa referred to s 12 (1) (a) of the Constitution, in terms of which every person has a right to freedom and security of her person, which right includes the right not to be deprived of freedom arbitrarily or without a just cause. He argued that there was no justifiable reason for Oriyomi's arbitrarily deprivation of her personal freedom.

[20]       According to Mr Masipa the relevant facts the court has to look at to determine an appropriate assessment of damages in this matter are:

[20.1] the following circumstances under which Oriyomi was arrested:

(a) The police were investigating a case of robbery which involved 4 males who spoke Zulu and English. There was video footage that depicted the culprits.

(b) Notwithstanding having access to all this information Sekeledi arrested Oriyomi for having participated in the robbery, even after Oriyomi's explanation that she was given the phone by her uncle.

(c) She was handcuffed and detained for several hours

(d) When there was no justification for arresting her for robbery. As a result she was extremely traumatised and shocked on the accusation of robbery.

 

[21]       Furthermore Mr Masipa referred to the fact that the court must take into consideration also that there was an improper motive on the part of the Defendant, the conduct of the SAPS personnel too harsh and, the two days spent in custody not justifiable.

 

On unlawful detention and pain and suffering

[22]       It was argued by Mr Masipa that Oriyomi was unlawfully detained for two days, kept in a filthy police cell with a non-functioning toilet situated at the corner of the cell affording no privacy. She was made to sleep on the floor with no blankets.

[23]       Mr Masipa made reference to certain relevant authorities on award of damages, specifically Mathe v Minister of Police [2017] 4 All SA 130 where an amount of Rl20 00 was awarded for an overnight detention of the Plaintiff, approximating 37 hours in a filthy cell with a single non-functioning toilet and no privacy. The matter of Mothoa v Minister of Police 2013 an award of RI 50 000 was granted for a 22 hour detention of the Plaintiff under appalling conditions at the Johannesburg Central Cells under appalling conditions. Finally, in the matter of Woji v Minister of Police 2015 (1) All SA 68 (SCA), at 79 1-J, the court considered the degradation suffered by the Appellant by having to endure appalling conditions of detention, the cells were dirty and beds insufficient. As a result he suffered appalling humiliating and traumatic indignity.

[24]      On the basis of the mentioned authorities Masipa argued that that an amount of R350 000 was fair and reasonable compensation for the unlawful arrest and detention endured by the Plaintiff.

[25]       The facts presented to court on Oriyomi's behalf to be considered by the court in exercising its discretion were not disputed by the Defendant. The following authorities were however referred to by Mr Barnardt:

[25.1]   The Minister for Safety and Security v Scott 2014 60 SA (1) whereupon an award ofR75 000.000 awarded to a Plaintiff businessman who spent one night in the police cells following his unlawful arrest was reduced to R30 000.

[25.2] Tladi v Minister of Safety and Security (11/5112) (2013] ZAGPJHC 7 (24 January 2013). A deputy school principal unlawfully arrested and detained for one night was awarded R25 000.00

[25.3]   Mashifane v Minister of Police and Another (25669/2011 [2014] ZAGPPHC 35 (25 February 2014) Plaintiff was awarded R200 000 for unlawful arrest and detention from November 2010 to 21 December 2010.

[25.4]   In Minister of Safety and Security and Others v Van der Walt and Another 2015 (5) SACR 1 (SCA), Plaintiffs were awarded each a Rl20 000.00 for unlawful arrest and detention for 6 days.

[25.5]   In Sobopha v Minister of Police (3098/12) [2014] ZAGPJNC 189 (13 August 2014) an award ofR60 000.00 was granted for the Plaintiff's unlawful arrest and detention for one day.

[25.6]   In Mofokeng and Another v Minister of Police (2014/A3084) [2015] ZAGPJHC l 130 (17 February 2015), the court granted the Plaintiff an award of R90 000 for unlawful arrest and detention for two (2) days.

[25.7]   In Subjee v Minister of Police (13/06352) 2017 ZAGPJHC 396 (10 November 2017), the Plaintiff, a mother of 4 and with the youngest two (2) years old and still being breast-fed was detained for 4 days and awarded an amount of R200 000 damages.

[26]       Mr Barnardt submitted that an amount of R90 000 for Oriyomi's unlawful arrest and detention would be just and reasonable. He further argued that the amount claimed of R1 500 000.00 by Oriyomi was inflated. The claim could have been brought in the magistrate court for nothing more than R200 000.00 as a result the costs granted should be on a magistrate court scale. He referred to the matter of Mvuza 2009 (6) SA 82 (GSJ that the Plaintiff should have requested proceedings to be transferred to the Magistrate Court to curb the costs to be incurred.

[27]       On the interest that the Plaintiff has argued should be payable from date of demand, Bamardt argued that interest is payable from date of judgment not from date of demand as per Oriyomi's prayer for costs.

 

Legal framework

[28]       The protection of personal liberty is entrenched in our law by the guaranteed right of everyone to freedom and security of person and the right not to be deprived of freedom arbitrarily or without just cause and not to be treated in a cruel, inhuman or degrading way as provided in s 12 (1) (a) of the Constitution; see Minister of Home Affairs v Rahim 2016 (3) SA 218 (CC). Human rights enshrined in our Constitution are all-important. The courts are therefore obligated to protect the right to freedom: see Seymour par [13] at 500. The police necessarily have extensive powers that the court must be astute to stand resolute against any abuse thereof. Moreover, s 35 of the Constitution provides detailed rights to arrested, detained and accused persons, including the right to be released if the interests of justice permit and upon reasonable conditions, and to human conditions of detention.

[29]       The discretion being with the courts to make an appropriate award, it is trite that damages awarded by the courts should be proportionate with the injury inflicted. Our courts are implored therefore to ensure that the awards they make for such violations reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law; see Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) para [26] AT 93E-F.

[30]       In Rahim and 14 Others v the Minister of Home Affairs 2015 (7K6) QOD 191 (SCA) at para 27, the court held that:

"[27]       The deprivation of liberty is indeed a serious matter. In cases of non­ patrimonial loss where damages are claimed, the extent of damages cannot be assessed with mathematical precision. In such cases the exercise of a reasonable discretion by the court and broad general consideration play a decisive role in the process of quantification. This does not, of course, absolve a plaintiff of adducing evidence which will enable a court to make appropriate and fair award. In cases involving deprivation of liberty the amount of satisfaction is calculated by the court ex aequo et bono. Inter alia, the following factors are relevant.

27.1          Circumstances under which the deprivation of liberty took place;

27.2          the conduct of the Defendants; and

27.3          the nature and duration of the deprivation.

 

Having regard to the limited information available and taking into account the factors referred to, it appears to me to be just to award globular amounts that vary in relation to the time each of the Appellants spent in detention" (my emphasis)

 

[31]       In Tyulu at [26], matter referred to by Mr Masipa, Bosielo AJA, as he was then, stated that:

"In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some -needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are consummerate with the injury inflicted. However, our courts should be astute to ensure that the awards they make for such infractions reflect the importance of the right to personal liberty as viewed in our law. I readily conceded that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical precision. Although it is always helpful to have regard to awards made previously as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts (Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) at 325 para 17; Rudolph and Others v Minister of Safety and Security and Another 2009 (5) SA 94 (SCA) ([2009] ZASCA 39) PARA 26-29).

 

[32]       In principle therefore, each case must, however, be decided on its own merits as in some of the referred cases the facts are distinguishable from the facts in casu. As long as the discretion is not exercised in a manner that invokes a sense that the value of loss of dignity and freedom is regarded as trivial.

[33]       In casu, having taken the relevant circumstances of Oriyomi's arrest, that is the fact that she was arrested at home (there was no need not to grant her a police bail on the day of the arrest), there were other persons that were found in possession of the cell phones stolen from the robbery who were never charged or arrested but their alibi investigated, thus the conduct of the SAPS members bothering on malice and too harsh, the period of her incarceration as agreed upon by the parties, the undisputed submission made based on the documentary evidence about the condition of her incarceration, plus the precedent provided to afford guidance for the quantum sought by each party, I am of the view that an amount ofR120 000 as compensation would be just and equitable.

[34]       With regard to costs, although the total quantum awarded is far below the jurisdiction of the High Court, the matter concerned the unlawful deprivation of liberty and due to uncertainty as to the award of general damages, Oriyomi was justified in bringing the matter in the High Court; De Klerk v Minister of Police (329/17 [2018] ZASCA 45; [2018] 2 All SA 597 (SCA).

[35]       Interest should be payable from the date of assessment of the quantum and of the order for payment thereof by the court. Mr Bamardt correctly referred to the remarks made by Spilg J in Takawira v Minister of Police (A3039/2011) [2013] that:

"56.        I do not agree that the Act can be construed as applying indiscriminately to all illiquid claims. On the contrary common sense dicated that the starting point is the date upon which the damages are assessed. The learned magistrate purported to assess them not at date of demand or at date of summons, but at date of judgment. The amount ordered was therefore not an amount that came into existence on any date sooner than the date of judgment. Any such amount would have been less if regard is had to the erosion of the value of money. The corollary is that the amount actually determined was not an amount due and payable at any date sooner than the date of judgment.

57.         If the magistrate had purported to calculate the quantum at some earlier date then there would be merit in the contention advanced. Such a course to the best of my experience is unheard of. Damages of this nature are assessed at date of judgment and any attempt to claim interest on it from an earlier date would negate the very basis of the determination, and require a discounting value for inflation or CPI to be taken into account- a most unrealistic and futile task when the obvious rot is to calculate the damages at current values at the date when judgment is delivered."

 

[36]       Contrary findings by Ledwaba DJP in GFE Blything v Minister of Safety and Security and Another (8281/2013(2016] ZAGPPHC were brought to my attention where he concluded that interest a tempore morae from date of demand should be paid and in Mathe where Opperman J granted an unusual order that interest be payable from 14 days after date of service of the summons until date of payment.

[37]       In relation to the Consumer Price Index (CPI) I have taken cognisant of the court's cautioning in AA Onderlinge Assuransie Assosiasie Bpk v Sodoms that it is undesirable to adhere slavishly to a CPI in adjusting earlier awards, But ... it is useful as a general guide to the devaluation of money.

[38]       Having considered all the facts, guidance derivative from decided cases on the incursions on personal liberty, that are by no means exhaustive and being mindful to the CPI;

 

I make the following order:

1.         The Plaintiff's claim for unlawful arrest and detention by members of the SAPS, from 4 January to 6 January is upheld.

2.         The Defendant is to pay to the Plaintiff an amount of R120 000.00 for damages suffered by the Plaintiff on her unlawful arrest, payable within 30 days of this order.

3.         Interest on the amount at the prescribed rate to be paid on failure by the Defendant to pay the amount within thirty (30) days of the order payable from dated of Judgment to date of final payment.

4.         The Defendant is to pay Plaintiff's costs of suit.

 

 

 
N V KHUMALO

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

For the Plaintiff:                  Adv R G Masipa

Instructed by:                      TI MOTHOA ATTORNEYS

Ref: TIM/CIV/322

Email: timthoainc@telkomsa.net

Tel: (012) 323 4291

 

 

For the Defendant:            Adv Johan Bamardt

Instructed by:                     The State Attorney

Ref: 4476/12/260

Tel: 012 309 1554

Enquiries: Mr S L Botes/ Nkuna N L

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