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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA.

(Functioning as UMPOPO LOCAL DIVISION

THOHOYANDOU)

Case No: 576/2011

DATE: 28 JULY 2014

In the matter between:

TSHIFARO LUFUNO FUNANANI...........................................................................................Plaintiff

And

MINISTER OF SAFETY AND SECURITY.................................................................First Defendant

INSPECTOR M W MUNYAI....................................................................................Second Defendant

D E MAPHWANYA......................................................................................................Third Defendant

M V MAKUMBANE...................................................................................................Fourth Defendant

A P RALINEBA..............................................................................................................Fifth Defendant

M A MAGADANI...........................................................................................................Sixth Defendant

S R NGCULU.............................................................................................................Seventh Defendant

E D NEKHWEVA........................................................................................................Eighth Defendant

Before: Mpshe AJ

INTRODUCTION

1. The plaintiff, under case number 576/2011 issued summons against the first to eighth defendants incorporating Claim 1 and 2.

2. Claim 1 pertains to the kidnapping and the deprivation of the plaintiff's freedom for a period of 10 hours on 10 October 2008.

3. Claim 2 pertains to the assault on the plaintiff by the defendants.

4. On 12 February 2013 an order was made in terms of Rule 33(4) regarding the separation of issues concerning liability and quantum, regarding both Claims 1 and 2.

5. On the 12 February 2013 an order was made that the first third and fifth defendants are jointly and severally liable to pay 100% of the plaintiffs proven or agreed damages in respect of both Ciaims 1 and 2.

6. The claims against the second, fourth, sixth, seventh and eighth defendants were postponed sine die.

7. The plaintiff is not pursuing the claims against the second, fourth, sixth, seventh and eighth defendants.

8. The claims are only against the first, third and fifth defendants.

9. The only issue therefore to be adjudicated upon is the quantification of the plaintiffs claims.

10. Plaintiff claims an amount of R 250 000.00 for kidnapping and a further R 250 000.00 for the assault.

ADMITTED EVIDENCE

11. The defendants admitted the following reports:

11.1 The J88 by Dr Mutshambele.

11.2 The medico legal report by Dr Hein Senske dated 2 August 2013.

EVIDENCE TENDERED

12. Only the plaintiff testified herein.

13. Plaintiff testified that at the time of the incident he was aged 16 years having being born on 2 March 1992. He was a grade 8 learner.

14. He was kidnapped at a bar lounge on the 10^th October 2008 under the disguise that he was being arrested by police officers.

15. He was then taken to a sawmill whereat he was detained from between 18h00 and 19h00 on 10 October 2008 until 04H00 in the morning on 11 October 2008.

16. The period of detention translates into 10 hours.

17. That during the detention at the sawmill he was subjected to severe assault by the defendants. He was beaten ail over his body with electric cables. He was at somo stage hung upside down whilst the beating with electric cables continued and this included being subjected to electrical shocks.

18. That the beating lasted for a period of 10 hours. That he managed to escape in the early hours of the following day after persuading the security man ordered to keep guard on plaintiff and the other detainee.

19. After the escape he fled to the bush whereat he hid.

20. He testified that he sustained injuries as a result of the assault and received medical treatment at the Tshilidzini Hospital but was not admitted.

21. That he could not continue schooling because he was being teased by peers and referred to as "Izinyoka" (local language freely translated as being a person who steals electric cables).

22. He suffered humiliation and was unlawfully deprived of his freedom.

23. The plaintiff was cross-examined by Counsels for first and third defendants. However, nothing material was elicited by the cross- examination.

ISSUES NOT IN DISPUTE

24. That plaintiff was 16 years of age at the time of the incident.

25. That plaintiff was forcefully abducted under a disguise of lawful arrest at a local bar lounge.

26. That plaintiff was detained and denied his liberty for a period of 10 (ten) hours.

27. That during the detention plaintiff was assaulted by defendants.

28. That plaintiff did receive medical treatment at the Tshilidzini Hospital.

29. That plaintiff was kidnapped, detained and assaulted for an alleged theft of electric cables belonging to the community and the third defendant.

ANALYSIS

30. Nugent J.A.^[1] remarked that money can never be more that a crude solatium for deprivation of that which can never be restored and that there was no empirical measure for the loss.

KIDNAPPING (CLAIM t)

31. in Zealand v Minister of Justice and Constitutional Development and Another², the following is said:

"The constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrary or without just cause, as well as the founding value of freedom "

32. It is trite in our law that deprivation of liberty is viewed by the courts in a serious light The right to freedom and not to be deprived of freedom without a just cause is a fundamental right entrenched in the Bill of Rights^[2].

33. As already indicated I have to determine the quantum to be awarded for the loss of liberty suffered by the plaintiff. There are no fixed scales or tariffs laid down for the fixing of awards. Consequently each case will be decided taking into consideration the evidence as a whole and considering past decisions on the matter as a guide.

34. In arriving at an appropriate award for damages, certain factors are to be taken into consideration. The circumstances under which the deprivation of liberty took place, the harsh conduct of the defendants, the duration and nature of the deprivation of liberty, the status, standing, age and health of the plaintiff, the extent of the publicity given to the deprivation of liberty, awards in previous comparable cases^[3].

35. The plaintiff was deprived of his liberty for a period of 10 hours. He was then 16 years of age and still school-going. He was forcefully removed to a sawmill whereat he was being detained. There is no evidence as to the reaction of the patrons at the bar lounge regarding the abduction. Although forcefully removed, there is no evidence that he suffered any physical injury at the time of the abduction. It cannot be said that plaintiff occupied any particular standing within the community.

36. I do find, however, that plaintiff was traumatised by the abduction. Further that when placed inside the sawmill plaintiff must have gone through a lot of fear and anxiety.

37. All three Counsels for plaintiff, first and third defendants filed list of authorities for comparison. My perusal of lists of authorities did not yield any previous case wherein damages of R 150 000.00 or even R 250 000,00 for loss of liberty were awarded.

38. In the Kwenda v Minister of Safety and Security case no. 3667/09 (North Gauteng High Court) plaintiffs were each awarded R 70 000.00 for loss of liberty over a period of 44 hours.

39. In Minister of Safety and Security v Seymour 2006(6) S.A. 320 (SCA) an amount of R 90 000.00 for deprivation of liberty for five days was found to be apposite by the Supreme Court of Appeal. Seymour had a status in the community and was 63 years of age then.

40. In the Peterson v Minister of Safety and Security (Eastern Cape High Court, Grahamstown Case 1173/08) an award of R 60 000.00 was granted for unlawful detention. In casu the incidents leading to the arrest and detention were cruel and degrading. Plaintiff was dragged half-naked by policemen to a police van in full view of members of the community. He was assaulted in his home and manhandled like an animal. The detention was from 20h00 to 04h00 the following day - approximately 8 hours.

41. I have had recourse to other cases inter alia Ramakulukusha v Commander, Venda National Force 1989(2) S.A. 813 (VSC); Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000(4) S.A. 68 (W).

42. Using my discretion I come to the conclusion that an amount of R 60 000.00 for deprivation of liberty is appropriate.

ASSAULT (CLAIM 2)

43. It is not in dispute that plaintiff was assaulted. Plaintiff was brutally assaulted over the body with electric cables by all defendants. He was at some stage hung upside down whilst the beatings continued.

44. Plaintiff suffered the following injuries:

44.1 Multiple abrasions and lacerations to the head and face, broken tooth, injury to the neck, injuries to chest, upper limbs and hands, shoulder blades, legs and calves. He bled profusely from the open wounds.

44.2 He suffered anc endured pain for approximately seven days and was treated as an outpatient at the Tshilidzini Hospital.

44.3 According to Dr H. Senske, the Orthopaedic Surgeon, plaintiff suffered a severe trauma due to assault, he was even afraid to attend hospital treatment after the assault. Further that, the wounds are healing satisfactorily and the injuries sustained will not influence his working capability or participation in sport.

45. In Nkosi v Minister of Safety and Security (South Gauteng High Court, Case no. 19868/05 dated 30.05.2012) an award for R 100 000.00 was granted for assault on plaintiff by three policemen. He was brutally assaulted by the police, he bled from the mouth, nose and ears and had his testicles squeezed and twisted. He suffered severe pain.

46. The Ramakulususha v Commander - Venda National Force 1989(2) S.A. 813 is of relevance. Damages awarded for assault on plaintiff by the police was R 15 000.00. It is recorded that the assault took place over a number of hours and was vicious causing plaintiff fractures of the fingers of the left hand, and that plaintiff suffered great deal of pain and discomfort.

47. In the present case plaintiff was assaulted for approximately 10 hours. The assault was intense and the number of persons assaulting plaintiff rendered plaintiff defenceless.

48. I have perused the following cases:

Riekert and Another v Branch (Eastern Cape High Court, Case No. 1766/2009);

Joseph v Minister of Police (Eastern Cape High Court, Case No. 1379/10); and

King NO v Minister of Police (Eastern Cape High Court, Case No. EL 801/2010).

49. Considering the evidence in its totality under this claim I am of the opinion that an award for damages in the sum of R 100 000.00 is appropriate.

COSTS

50. Counsel for the plaintiff submitted that plaintiff was entitled to costs on party and party scale including costs of experts and Senior/Junior Counsel and traveling. There was no opposition to this submission. 1 am of the opinion that costs should follow the event.

51. Consequently I order as follows against first, third and fifth defendants, jointly and severally, the one paying the other to be absolved:

Ad Claim 1

1. Payment of the amount of R 60 000.00 (sixty thousand rands).

2. Interest on the amount of R 60 000.00 at the rate of 15.5% per annum, calculated from 7^th October 2011 to date of payment.

Ad Claim 2

3. Payment of the amount of R 100 000.00 (one hundred thousand rands).

4. Interest on the amount of R 100 000.00 calculated at the rate of 15.5% per annum calculated from 7^th October 2011 to date of payment.

Ad Claim 1 and 2

5. The first, third and fifth defendants are ordered, jointly and severally to pay the plaintiff's costs of the action on a High Court party and party scale, which costs will include but not be limited to the following:

S.lThe reasonable taxable reservation/preparation and qualifying fees (if any and on proof thereof) as well as the costs of obtaining the report of Dr H Senske.

5.2The defendant is ordered to pay the plaintiffs taxed or agreed party and party costs on the High Court scale, including the costs of Senior/Junior Counsel, including reasonable traveling and related expenses.

J. M, MPSHE (AJ)

High Court of South Africa

Limpopo Local Division, Thohoyandou

For Plaintiff : Advocate P. M. Ryneveld

Instructed by : Danie Van Ryneveld Attorneys

Thohoyandou

For first defendant : Advocate F. Muneri

Instructed by : The State Attorney

Thohoyandou

For third defendant : N. P. Makhavhu (Attorney)

Nkhume Makhavhu Attorneys Nzhelele

For fifth defendant : Mr Ligege (Attorney)

Vutshilo Nange Attorneys Thohoyandou

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