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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE NORTH WEST HIGH COURT, MAFIKENG

 

CASE NO: 681/2019

 

Reportable:                                    YES / NO

Circulate to Judges:                       YES / NO

Circulate to Magistrates:                YES / NO

Circulate to Regional Magistrates: YES / NO

 

 

In the matter between:

 

TSIE STEPHEN RANKWE                                      Applicant

 

and

 

MINISTER OF POLICE                                            Respondent

 

 

JUDGMENT

 

 

Introduction

 

1.          The plaintiff instituted an action against the defendant for damages suffered as a result of his alleged unlawful and wrongful arrest and detention by members of the South African Police Service (SAPS), acting within the course and scope of their employment with the defendant, and in their official capacity as members of SAPS. The Plaintiff was arrested on 3 December 2017 and eventually released on 17 January 2019, when his case was withdrawn. In a subsequent trial to determine liability this Court found on 7 October 2021 that the defendant is wholly (100%) liable for the plaintiff’s agreed to or proven damages for the unlawful detention for the period 13 July 2018 to 17 January 2019.

 

[2]    The plaintiff then set the matter down for the determination of quantum of damages which the defendant was liable to pay. There are two heads of damages, being Loss of Earnings and General Damages. Each party filed an actuarial report in respect of Loss of Earnings. When the trial started, Counsel for the plaintiff informed the Court that his client accepted the calculations of damages by the defendant’s actuary in respect of loss of earnings. Counsel for the defendant also placed on record that his instructions were that the quantum of damages for loss of earnings as calculated by the defendant’s actuary, be accepted as the correct one. Consequently, no oral evidence was lead on loss of earnings.

 

General Damages

 

[3]    Subsequent to that, the plaintiff lead evidence of two witnesses on General Damages, the defendant did not lead any evidence. The first witness for the plaintiff was Mr. Khodani Lucky Tshikovhele, Clinical Psychologist. Here is his evidence : He consulted with the plaintiff on 26 May 2022 and compiled an expert report which is part of the evidence before Court. The plaintiff informed him that whilst in prison he was beaten up by the inmates. Subsequent to the beatings in the detention cells he was taken to the clinic as he was experiencing pains on his chest and struggled with his voice. The plaintiff further told him that even though he had chest pains prior to the ill-treatment in detention, this condition became worse subsequent to the assault on him by inmates in detention. He stated to the psychologist that whilst in detention, he had suicidal thoughts. He however refrained from taking his life when he thought of his live-in partner with whom he intended to get married and his children.

 

[4]    On the assessment information of the plaintiff Mr. Tshikovhele stated: on the “Sad person scale” the plaintiff scored 6, in the test which indicates consideration of hospitalization, depending on the confidence in the follow-up arrangement. On the “Draw a Person Test” the results of the test indicated that the plaintiff has the desire to minimize contact with the environment, has feelings of self-absorption, sensitivity to criticism, depressed, regressed aggression, feelings of inadequacy, pressure and anxiety and feelings of inferiority. The “Beck Depression Inventory (BDI)” indicated that the plaintiff is likely to be experiencing severe depression. Equaly, the “Beck Anxiety Inventory (BAI)” indicates that he is likely to be experiencing severe anxiety.

 

[5]    In relation to the interpretation of test results the clinical psychologist made the following remarks and findings:

 

“In accordance to the psychological assessment findings, Mr Rankwe’s emotional and cognitive state has been affected. The emotional screening tools indicated that he has moderate feelings of depression and severe feelings of anxiety. He is likely to be suffering from Major depressive disorder with Post-Traumatic Stress Disorder and Adjustment disorder as differential diagnosis.

 

Post-traumatic stress disorder (PTSD) is a mental health condition that’s triggered by a terrifying event – either experiencing it or witnessing it. Symptoms may include flashbacks, nightmare and severe anxiety, as well as uncontrollable thoughts about the event. Most people who go through traumatic events may have temporary difficulty adjusting and coping, but with time and good self-care, they usually get better. If the symptoms get worse, last for months or even years, and interfere with your day-to-day functioning, you may have PTSD. Post-traumatic stress disorder symptoms may start within one month of a traumatic event, but sometimes symptoms may not appear until years after the event. These symptoms cause significant problems in social or work situations and in relationships. They can also interfere with your ability to go about your normal daily tasks. The overall impression from the psychological assessment is that MR Rankwe presents with significant emotional deficits because of the incident in question. His history showed that he was functional prior the incident in question and post the incident he is experiencing severe emotional difficulties.”

 

[6]    The two clinical psychologists, Mr Khodani Tshikovhele and Dr. Amanda Pete in their meeting on 08 July 2022 compiled joint minutes in which they agreed over all aspects. There was no dissension. These two experts agreed that:

 

·     the plaintiff is suffering from significant symptoms of Post- Traumatic Stress Disorder and Major Depressive Disorder related to the incident of incarceration.

·     the plaintiff’s occupational, recreational and interpersonal functions has been negatively affected by the incident related difficulties;

·     the plaintiff reported physical and psychological changes post incident.

·     the plaintiff’s physical and psychological difficulties have contributed to a diminished quality and enjoyment of life.

·     the plaintiff’s occupational functioning has been negatively influenced by the incident.

 

[7]    Mr. Stephen Rankwe, the plaintiff himself also testified . His evidence was confined to the period of unlawful detention. His police cell inmates assaulted him and deprived him of his food. The blankets were never washed. These blankets were infested with lice. There were 16 inmates in the cell. Their toilet was outside the cell and it was also dirty. During July, it was cold in there because he did not have enough blankets. When the other inmates had to appear in court they took the plaintiff’s shoes but they restored them to him when they returned. For breakfast each of them got five slice of bread of which two were smeared with butter. The cell boss would snatch one slice especially the one smeared with peanut butter. The plaintiff had to be taken to the clinic seven to eight times due to chest pains.

 

[8]    When the plaintiff rejoined his family, he did not get the same respect which he used to enjoy. No one was prepared this time to assist him with money. Prior to his arrest his relatives would freely assist him, but their attitude towards him had taken a dive. The community members belittled him and had less regard for him. Indeed life was no longer good for him. He thought of taking his life, a thought which also haunted him whilst he was only two months in custody. This was because his life was no longer the same as before. Ms Fikile Nkabinde, the plaintiff’s lover with whom he has children, does not show any interest in him as she used to. The problem, she says, is that he is unemployed. She no longer loves him as she used to. When this couple makes love (after the plaintiff’s release from custody), he experiences early ejaculation. Whenever he looks for work he is told by the prospective employer that his criminal profile displays that he was once arrested. It is difficult for him to get a job now of late. He feels no longer safe as his community still suspects that he raped a young girl. The plaintiff no longer trusts his lover because he saw her in the company of a Xhosa man.

 

Legal Principles.

 

[9]    In Rahim v The Minister of Home Affairs[1] the court stated:

 

“The deprivation of liberty is indeed a serious matter. In case 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 considerations play a decisive role in the process of quantification. 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

 

(i)       circumstances under which deprivation of liberty took place;

(ii)      the conduct of the defendants; and

(iii)      the nature and the duration of the deprivation:”

 

In Minister of Safety and Security v Tyulu[2] the Court said:

 

“ In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the purpose is not to enrich the aggrieved party but to offer him or her some much-needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate 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 and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous…”

 

[10]  in Mbwanja v Minister of Police[3] the plaintiff was unlawfully arrested  in January 2006 and remained in custody for five months and the court awarded him R500,000.00. The Plaintiff’s arrest in Mbanjwa was publicly demeaning. He was 29, and had a diploma from a Technikon, and had a comfortable home life, employed as a manager in a casino. His family lost their home, and their furniture in the period that he was unemployed. If adjusted with the consumer price index, the award works out to R223,990.24 per month in 2022. If applied to the present claim this would be R1,343,941.45, being for 188 days or 6 months and 4 days. It should be borne in mind that this was an award for both unlawful arrest and unlawful detention.

 

[11]  In Manyoni v Minister of Police and Another [4]the defendant was ordered to pay the amount of R600,000.00 due to the unlawful detention of the plaintiff for a period of 8 ¹/₂ months (approximately 250 days), therefore approximately R2,400.00 per day in 2022. If applied to the present claim this would equate an award of R473,731.80, being for 188 days or 6 months and 4 days. In Nontsele v Minister of Police[5] plaintiff was held in detention for 467 days on an alleged false charge of rape and was awarded R1,600,000.00 on 12 August 2021, for the period from 6 February 2013 to 19 May 2014. This amounts to R3,426.13 per day in 2022. If applied to the present claim this would equate an award of R676,277.36, being for 188 days or 6 months and 4 days. In Links v Minister of Safety and Security and Another[6] the plaintiff was arrested in December 2009 and he remained in detention for three months until March 2010. The court awarded R250,000.00 on 30 March 2015, with interest from the date of demand. This amounts to R83,333.34 per month and if adjusted with the consumer price index, it works out to R115,147.73 per month in 2022, being for 188 days or 6 months and 4 days

 

[12]  The Court in Wolmarans v Minister of Police[7] awarded an amount of R2,700.000.00 as general damages for the unlawful detention of seven months. On the other hand, in Msongelwa v Minister of Police[8] the Court awarded R5,000.000.00 for the unlawful detention of 158 days (slightly above five months).

 

[13]  It is an accepted principle that seldom does one find cases which are similar in facts, the circumstances and the sequalae of the arrest and or detention on the victim. Previous comparable cases provide just a guideline and the Court retains its discretion to award what it considers a reasonable and fair amount of damages taking into account the nature of the insult and humiliation which the victim was exposed to. In the judgment on the merits of this case I alluded to some of the unusual features of the current detention. This quotation will illucidate this aspect:

 

“[36] On the 05 July 2018, Maselesele gave evidence in court where he opposed the release of the plaintiff on bail. He then informed the court that the only outstanding aspect in the investigations of the case was DNA analysis results from the Forensic Science Laboratory.It is common cause that these results of the DNA analysis were released by the Forensic Science Laboratory on 9 July 2018. Maselesele testified that he does not know when did these results reach Mooinooi Police Station. He does not even know or remember when did he first become aware of the DNA results. Yet he is the investigating officer. What we know is that these vital results which did not implicate the plaintiff were kept away from the eyes of the Public Prosecutor and the Court until in January 2019 when the criminal case against the plaintiff was withdrawn. There is no doubt that if the DNA results were disclosed earlier to the Public Prosecutor, the plaintiff’s case would have been withdrawn at that stage because the only reason for the continued detention of the plaintiff were the pending DNA results.

 

[37] It is not necessary for this court to make a finding about which institution between the Forensic Science Laboratory and Mooinooi Police Station withheld this vital information from the prosecution from 9 July 2018 until 17 January 2019. After all, both institutions resorts under the Ministry of Police, the defendant. It is this conduct of withholding information from the prosecution and the court, in order to prolong the detention of a person which, in my view, constitutes negligence of the highest order. This conduct by the police is a clear violation of the right of a person to liberty, contrary to section 12 (1) of the Constitution which provides:

 

“Everyone has the right to freedom and security of person which includes the right not to be deprived of freedom arbitrarily or without just cause.”

 

[14]  What sticks out like a sore thumb in this matter is malice on the part of the police. A person’s detention was prolonged unlawfully in order to apeace the community, to create a wrong impression that there was a case against him when there was no evidence which could sustain the prosecution’s case beyond the close of the state case. It is therefore manifest that the motive for the continued detention of the plaintiff was evil. It is this practice which deserves special censure from the court. This gross violation of human rights cannot be fought with velvet gloves.

 

[15]  It was submitted on behalf of the defendant that the level of trauma testified to by Mr. Tshikovhele which plaintiff suffers from is not the result of the unlawful detention period only but it includes the period where his detention was not unlawful. The plaintiff was arrested on 3 December 2017 and eventually released on 17 January 2019. In the judgment on the merits the court found that the detention period which was tainted with illegality was from 13 July 2018 to 17 January 2019.I agree with Mr. May for the defendant that the arrest and the whole detention period gave rise to the plaintiff’s post-traumatic stress disorder. The clinical psychologist, Mr. Tshikovhele, also conceded that when he compiled his report he was not aware that only part (and not the whole) of the detention period was declared unlawful. In awarding damages I will keep this in mind. Unfortunately however, there is no mathematical grading, We cannot say the Post-traumatic disorder was caused by 60% and 40% of the period pre and after 13 July 2018 respectively. That would be a pure conjucture.

 

[16]  Having said that, the detention period of the plaintiff after the DNA results were received is too long. It is shocking to see a person being subjected to such treatment by the law enforcement agencies of a constitutional state where the Bill of Rights is highly cherished. It is my considered view that a reasonable and fair award for general damages under the circumstances is R1 500 000.00.

 

Loss of Earnings.

 

[17]  The issue of loss of earnings was settled between the parties when the plaintiff accepted the actuarial calculations of the defendant’s actuary as correct and reasonable. The actuary did not apply a contingency deduction to the said amount. It was consequently agreed between the parties that the plaintiff’s total loss of income is equivalent to R1 206 393.00. This is the amount from which the court has to make a deduction for contingencies.

 

[18]  In AA Mutual Insurance Association Ltd v Maqula[9] the Supreme Court of Appeal ruled that allowances for contingencies is a process of subjective impression or estimation rather that an objective calculation that is positioned in the sole discretion of the Court. In AA Mutual Insurance v van jaarsveld[10] it was held that the Court has a wide discretion that must, however, be based upon a consideration of all the relevant facts and circumstances. Justice and fairness for the parties is served by contingencies to be applied on the particular proven facts of the case. In Gilbanks v Sigourney[11] it was held that many factors come into consideration such as the possibility of forced retirement before the age of 65, a possibility of death before 65 years of age, the likelihood of suffering an illness of long duration, unemployment, inflation, alteration in costs of living and any other contingency that may affect earning capacity. In Phalane v Road Accident Fund[12] it was held that:

 

“ Contingencies are the hazard of life that normally beset the lives and circumstances of ordinary people (AA Mutual Ins Co v Van Jaarsveld reported in Corbett & Buchanan, The Quantum of Damages, Vol II 360 at 367) and should therefore, by its very nature, be a process of subjective impression or estimation rather than objective calculation (Shield Ins Co Ltd v Booysen 1979 (3) SA 953 (A) at 965G-H). Contingencies for which allowance should be made, would usually include the following:

 

(a)     The possibility of illness which would have occurred in any event;

(b)     Inflation or deflation of the value of money in future; and

(c)     other risks of life such as accidents or even death, which would have become a reality, sooner or later, in any event (Corbett, The Quantum of Damages, Vol I, p 51).”

 

[19]  The plaintiff was born on 3 November 1972 and was 50 years old at the end of 2022 (the year in which he testified). He will qualify for an old age pension when he reaches the age of 60. As at the date of his arrest he was earning R6000.00 per month. The plaintiff testified that he was suffering from tuberculosis. According to him, he is also HIV positive. It is common knowledge that TB and Aids contribute to the mortality rate in South Africa. The possibility that he would pass on earlier than expected cannot be discounted as far fetched. His ailments and the fact that in about ten years’ time he is likely to get old age pension from SASSA were not taken into account by the actuary in computing loss of earnings. In my view, these factors together with the other factors referred to in Gilbanks v Sigourney and Phalane v RAF supra will be taken into account in determining an appropriate contingency deduction.

 

[20]  It is my considered view therefore that a reasonable and fair deduction under the circumstances should be 5% Past Loss and 35% Future Loss. The plaintiff’s loss will then be as follows.

 

	Actual loss	Actual loss Less contingency
Net past loss Past Contingencies Sub-total Net future loss Future Contingencies Sub-total Total	403 123  - 403 123 803 270  - 803 270 1 206 393	403 123 (20 156) 382 967 803 270 (281 144-50) 522 125-50 905 092-50

 

Order.

 

[21]  Consequently the defendant is ordered to compensate the plaintiff in the amount of:

 

21.1       R1 500 000.00 General Damages and R905 092.50 Loss of Earnings.

21.2       The said damages to be paid within forty (40) days from date hereof.

21.3       The said amount (the total is R2 505 092.50) to be paid into the Trust Account the details of which are as follows:

 

Modiboa Attorneys Inc

ABSA Bank

Trust Account No: 4[....]9

Branch: Klerksdorp

Branch Code: 6[….]

 

21.4       The defendant to pay the costs (including the reservation costs) of the following experts (plaintiff’s experts):

 

21.4.1     Mr. Michael Oosthuizen

21.4.2     Ms. Zahira Light Phatudi

21.4.3     Mr. Itai Karidza and

21.4.4     Mr. Khodani Lucky Tshikovhele.

 

21.5       The defendant to pay costs including costs for determining liability(merits).

 

 

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

 

APPEARANCES:

 

DATE OF HEARRING:   02 AUGUST 2022

DATE OF JUDGMENT:  27 JULY 2023

 

COUNSEL FOR PLAINTIFF:          ADV T MORETLWE

INSTRUCTED BY:                          MODIBOA ATTORNEYS INC

107 READMAN STREET

WILKOPPIES

KLERKSDORP

2571

REF:                                                MR L MODIBOA/00080/TSR/CIV

 

 

COUNSEL FOR DEFENDANT:      ADV JAH MAY

INSTRUCTED BY:                          THE STATE ATTORNEY, MAHIKENG

MEGA CITY SHOPPING COMPLEX

1^ST FLOOR, EAST GALLERY

SEKAME ROAD, OFF DR JAMES

MOROKA DRIVE

MMABATHO, 2735

REF:                                                MR SWANEPOEL/0396/19/P7

 

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