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IN THE NORTH WEST HIGH COURT, MAFIKENG

 

CASE NO: 346/2016

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between:

 

TSHEPISO CLIFFORD SEETSENG                            Plaintiff

 

and

 

MINISTER OF POLICE                                                First Defendant

 

NATIONAL DIRECTOR OF                                              

PUBLIC PROSECUTIONS                                                Second Defendant

 

 

 

 

ORDER

 

 

 

(i)            Judgment is granted in favour of plaintiff against the first defendant in an amount of R60 000.00 (sixty thousand rand) for his unlawful arrest and detention for the period 7 December 2013 to 09 December 2013.

 

(ii)          The first defendant is ordered to pay interest on the aforesaid amount of R60 000.00 (sixty thousand rand), at the prescribed rate of 10.5% per annum, from date of this judgment until date of final payment.

 

(iii)         The first defendant is ordered to pay the costs of suit in respect of quantum on a party-and-party basis, to be taxed.

 

 

 

 

JUDGMENT

 

 

 

PETERSEN ADJP

 

Introduction

 

[1]        This action comes before this Court to adjudicate the issue of quantum, following a successful appeal (in part) against the judgment of the court a quo (Djaje J)[1], which dismissed the plaintiff’s claims for unlawful arrest and malicious prosecution. The Full Court of this Division (Gura J, Kgoele J and Morwane AJ)[2] upheld the appeal only in respect of the unlawful arrest and detention of the plaintiff. The appeal against the claim for malicious prosecution was dismissed.  

 

[2]        In upholding the appeal on the unlawful arrest and detention of the plaintiff, the Full Court reached the following conclusion and consequently ordered as follows:

 

“[23]     On a balance of probabilities, the Court finds that the defendant failed to prove that the warrantless arrest by Kgetsane was lawful. There are serious questions about the alleged presence of the complainant at the plaintiff’s home during arrest. No reasonable police officer would have arrested, without a warrant, a suspect where the identity of the suspect was so vague. This Court finds that the arrest of the plaintiff was unlawful.

 

                       …

 

                       [29]     Consequently;

 

29.1 The appeal against the dismissal of the claim of malicious prosecution is dismissed with costs;

 

29.2      The decision of the court a quo to dismiss the claim of malicious prosecution is confirmed;

 

29.3 The appeal against the dismissal of the claim of unlawful arrest and detention is upheld;

 

29.4      The decision of the court a quo to dismiss the claim of unlawful arrest and detention with costs, is set aside;

 

29.5      The arrest and detention of the plaintiff is unlawful;

 

             29.6 The first defendant to pay costs in the court a quo as well as costs consequent upon this appeal.”

 

(my emphasis)

 

[3]        In the adjudication of the issue of quantum, which I am called to consider, it is apposite to have regard to the reasoning of the Full Court in dismissing the appeal against the claim for malicious prosecution, where the Full Court held that:

 

“[26]     It is indeed so that when the prosecutor received the docket, there was a contradiction between two affidavits, the first being the complainant’s and the second by Constable Kgetsane. On behalf of the plaintiff it was submitted before us that since the identity of the suspect was an issue in the criminal case, the prosecutor should not have taken a decision to prosecute the plaintiff. In my view however, the fact that there is a contradiction or contradictions between two or more prospective witnesses’ statements, does not necessarily justify a decision declining to prosecute. That will depend largely upon the nature and importance of contradictions and generally, the facts of each and every individual case. In casu, the prosecutor has stated that he was awaiting the forensic test results of DNA samples taken by the doctor from the complainant’s private parts. In this case the prosecutor cannot be faulted for not declining to prosecute at that early stage. Such an early, hasty decision to withdraw the case may at times lead to a possible failure of justice for instance where the suspects’ DNA deposits are identified in the complainant’s private parts.

 

[27]     Of course in the current case the forensic test results could not link the plaintiff to the crime of rape. When the DNA results were received, the prosecutor still did not withdraw the case against the plaintiff. The prosecutor testified that regardless of the forensic test results, he was of the view that the nature of the information in the statements could not exclude the possibility of a conviction of the plaintiff. Care should always be taken by public prosecutors when DNA test results do not connect the suspect to the crime of rape. There are ways of penetrating a rape victim and yet no DNA trace of the wrong doer is deposited in the victim’s private parts. One should not forget what the prosecutor told the Court in this trial (civil case). His view is that on the day she finally decided to withdraw the case, the complainant was present in court and she still insisted that the person who had raped her was no one else but the plaintiff. The complainant is alleged to have given this information to the prosecutor outside the court. Had the complainant testified, she may have explained the alleged contradiction between her and Kgetsane’s statements to the court. It is common phenomenon for instance for a witness to disallow the contents or part of the contents of a statement made to the police.

 

[28]     In my view therefore, this is not a situation (case) where the prosecutor could be said to have acted without reasonable and probable cause or that he acted animo injuriandi when he decided to prosecute the plaintiff. In the result, the claim for malicious prosecution stands to be dismissed. In my view therefore, the court a quo acted properly in dismissing this claim.

(my emphasis)

 

The judgment of the Full Court on the period of detention

 

[4]        The plaintiff seeks solatium for the full duration of his detention, both pre- and post his first court appearance in the District Court and Regional Court. The judgment of the Full Court is silent on the period of detention for which either the Minister of Police (‘the Minister’) solely or jointly with the National Director of Public Prosecutions (‘NDPP’) would be liable. I am constrained, by the judgment of the Full Court, particularly in light of its dismissal of the plaintiff’s claim for malicious prosecution.

 

[5]      It is not clear from the judgment of the Full Court, whether the Minister is liable for detention prior to the appearance of the plaintiff in court. It is further not clear, whether both the Minister and the NDPP are liable jointly and severally for the full duration of the detention of the plaintiff. A value judgment will therefore have to be made by this Court on this issue. This is to ensure that the quantum ultimately awarded to the plaintiff accords with the authorities in our law and is both fair and reasonable to all the parties. A good starting point in considering the period of detention would be the submissions of counsel.

 

The submissions on the period of detention

 

[6]        The following submissions, relevant to the period of detention, are extracted from the heads of argument prepared by Ms Ntsamai for the plaintiff:

 

“7.       The plaintiff was detained on the 7^th of December 2013 until his release on the 12^th of February 2015. This detention lasted 431 (four hundred and thirty one) days in total up to when the charges were withdrawn against him.

 

                       …

 

                       COMPARATIVE CASE LAW

 

13.      In De Klerk v Minister of Police, - constitutional court, the appellant was detained for nine days was awarded R300 000.00 in damages. R300 000.00 divided nine days comes to approximately R33 000.00 (thirty-three thousand) per day.

 

13.1    Given the hierarchy of the Constitutional court, it will be submitted that an award of approximately between R20 000.00 – R30 000.00 per day will be appropriate.  The court will remember that upon receipt of the DNA analysis report from the Forensic Science Laboratory received on or around 22^nd August 2014, it excluded the plaintiff in this rape case. The Plaintiff was however kept further in custody and released on the 12^th of February 2015 with no reasonable explanation for his further detention whilst there was no evidence linking him to the purported crime.   

 

14.      It is submitted that Plaintiff in the hands of a serious police official, suffered a horrendous abuse of power. The Plaintiff’s arrest and detention was nothing but unjustified, criminal and informed by vindictiveness.”

 

                        …

 

39.      I submit that the court have regard to the fact that plaintiff, who is presumptively an innocent man, has been in custody for a period of 431 days awaiting trial where there was no probable cause to believe that he raped the complainant. The burden of a prolonged pre-trial detention is substantial where it is as a result of deliberate violation of persons basic constitutional rights…

         

40.      The violation is extreme due to the fact that in August 2014, the DNA results excluded and exonerated the Plaintiff however the unlawful detention continued up until February 2015…”   

 

[7]        In the heads of argument prepared by Mr Masike for the defendants’, the following submissions, relevant to the period of detention, are extracted:

 

“4.6     We accordingly submit that the period which the Honourable Court should consider for the unlawful detention, should be a period of 4 months. It should be noted, the Plaintiff was arrested on 7 December 2013 and released on 12 February 2015. The Plaintiff was in custody for 14 months, 4 of the 14 months was as a result of the parole violation. That cannot be attributed to the Minister of Police. 6 of the months are attributed to the Second Defendant. We deal more fully with this aspect herein below.

 

                      ...

 

                       4.23    We submit the Defendant (Minister of Police) cannot be held liable for the period of detention from 22 August 2014 to 12 February 2015 when charges were withdrawn by the public prosecutor against the Plaintiff.

 

4.24    The employees of the Minister of Police acted in good faith in making the results of the DNA analysis available to the Second Defendant, through the Public Prosecutor. The decision not to withdraw the charges lies squarely at the door of the Second Defendant and not the Minister of Police.

 

4.25    We refer the Honourable Court to the matter of Mahlangu referred to herein above at paragraph 45 where the court stated “The unlawful continued concealment by the police of the fact that the confession was obtained illegally therefore provides the applicants with a basis for holding the Minister delictually liable for the full detention period.” 

 

See:    E Mahlangu and Another v Minister of Police [2021] ZACC 10 at paragraph 45.

 

4.26    It should be noted that one of the duties on the members of the South African Police Services was to inform the Public Prosecutor of all facts which are relevant to determine the continued detention of the Plaintiff or the continued prosecution of the Plaintiff. The members of the South African Police played their role and provided the Public Prosecutor with the DNA results, the Public Prosecutor, being in possession of the DNA results failed to withdraw charges or have the Plaintiff released from custody until 12 February 2015.   

 

4.26    This matter is distinguishable from Mahlangu and De Klerk v Minister of Police  [2019] ZACC 32. We accordingly submit, the Minister of Police, cannot be held liable for the entire period of the detention of the Plaintiff. We have already dealt with the period from January 2014 to May 2014, that the Plaintiff was in custody as a result of a parole violation. The period of August 2014 to February 2015, lies at the door of the National Director of Public Prosecutions. The period August 2014 to February 2015 is a period of 6 months. Taken together with the period January 2014 to May 2014 the period the court should consider in respect of damages for unlawful detention by the Minister of Police is 4 months.”

 

An assessment of the period of detention

 

[8]   In my view, an examination of the pleadings and in particular the particulars of claim and evidence is necessitated as a result of the Full Court not having made a pronouncement on the period of detention for which either the Minister or NDPP or both jointly and severally may be liable.

 

[9]       The following salient aspects of the majority judgment in the Constitutional Court judgment of De Klerk v Minister of Police (CCT 95/18) [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) (22 August 2019), are apposite for purposes of the present matter:

 

“[15]    The unlawfulness of the arrest is not at issue before us…

 

[16]     Similarly, there is no appeal against the finding by the Supreme Court of Appeal that the respondent is liable for the applicant’s unlawful detention from the time of his arrest until his first appearance in court, a period of about two hours. This application is about whether the harm associated with the applicant’s detention on the order of the Magistrate after his first court appearance until his release on 28 December 2012 can be attributed to the unlawful arrest by the police…

 

[17]     This application accordingly implicates the causation requirement in the context of alleged unlawful detention…

 

           …

 

[19]     In my view, on the case as brought before us, there is one potential delict; namely, the unlawful arrest of the applicant…In this case there was prior wrongful, negligent conduct by the arresting officer that factually caused the applicant to suffer harm. It is that conduct, the wrongful arrest of the applicant, which we are called to adjudicate.  The applicant has pleaded that because of that wrongful arrest, he was detained for over a week…

 

[20]     The applicant’s particulars of claim in the High Court state that the applicant “was arrested without a warrant by members of the Sandton SAPS” and “[a]s a result of the [applicant’s] wrongful and unlawful arrest and detention”, he suffered the harm in respect of which he seeks to hold the respondent liable (the entire period of detention).  The applicant’s pleaded case is that the unlawful arrest, rather than an omission by the police at the time of his first appearance before the Magistrate, was the cause of the harm he suffered.

 

[21]     The applicant further avers in his particulars of claim that “[t]he members of the SAPS wrongfully failed and/or unreasonably refused to release the [applicant] on bail” and “[a]s a result of the aforegoing the [applicant’s] further detention was unlawful”. At best, the particulars of claim appear to allude to a failure by the police to give the applicant police bail – not to cause his release at the first appearance. It seems to me that the applicant pleaded that the police wrongfully failed to “release” him on bail at the Sandton Police station rather than failed to cause his release on bail before the Magistrate.  This would tie in with the allegation in the applicant’s pre-summons notice that Constable Ndala “was aware that [the applicant] can be released on bail” in the amount of R1 000 but failed to make the applicant aware of this.

 

[22]     In any event, even if we interpret the pleadings as meaning that the applicant was suing the police for an omission during his first appearance before the Magistrate, it is quite clear that he was also suing them for the week’s detention that flowed from the unlawful arrest…The application for leave to appeal filed before us unequivocally frames the question as one of legal causation.  Paragraph 4.3 of the applicant’s founding affidavit in this Court reads:

 

“The issue to be considered and ventilated is why the respondent, subsequent to its unlawful interference with my physical liberty, should not be subjected to the same criteria and tests applicable to other wrongdoers in a delictual claim.  On a reading of the [Supreme Court of Appeal] majority judgment the normal test of causation is not applied.  The principle applied by the majority judgment was that, absent proof that the consequence of the unlawful breach of my right to personal liberty was also, independent of the initial unlawful breach, unlawful, I am not entitled to compensation, from the respondent, for such consequences. Such finding was made notwithstanding that such consequence was not only foreseeable by the respondent but in fact known at the time when my physical liberty was unlawfully interfered with.”  (Emphasis added.)

 

…

 

[63]     In cases like this, the liability of the police for detention post-court appearance should be determined on an application of the principles of legal causation, having regard to the applicable tests and policy considerations.  This may include a consideration of whether the post-appearance detention was lawful. It is these public policy considerations that will serve as a measure of control to ensure that liability is not extended too far.  The conduct of the police after an unlawful arrest, especially if the police acted unlawfully after the unlawful arrest of the plaintiff, is to be evaluated and considered in determining legal causation. In addition, every matter must be determined on its own facts – there is no general rule that can be applied dogmatically in order to determine liability.

 

                       …

 

                      Foresight

 

[76]    A reasonable arresting officer in the circumstances may well have foreseen the possibility that, pursuant to an unlawful arrest, the arrested person would routinely be remanded in custody after their first appearance.

 

                      …

 

[81]     As explained, subjective foresight of harm cannot itself necessarily imply that harm is not too remote from conduct. It is, however, a weighty consideration…In determining causation, we are entitled to take into account the circumstances known to Constable Ndala. These circumstances imply that it would be reasonable, fair, and just to hold the respondent liable for the harm suffered by the applicant that was factually caused by his wrongful arrest.  For these reasons, and in the circumstances of this matter, the court appearance and the remand order issued by the Magistrate do not amount to a fresh causative event breaking the causal chain.

 

                       Conclusion

 

[86]     The crucial fact in this matter is that Constable Ndala subjectively foresaw the harm arising from the mechanical remand of the applicant after his first court appearance. She knew that the applicant’s further detention after his court appearance would be the consequence of her unlawful arrest of him.  She reconciled herself with this knowledge in proceeding to arrest him. In addition, she knew that her mere note inside the docket recommending bail would amount to nothing at this first appearance. That the judicial process should have had a different tenor and outcome seems to me to be beside the point. The point is that Constable Ndala knew it would not.

 

[87]     Public policy considerations, based on the norms and values of our Constitution, and the principles emerging from Zealand, point to the respondent being liable for the entire period of the detention. To impose liability on the respondent for the entire period of the detention, in the circumstances of this matter, would not be exceeding the bounds of reasonableness, fairness and justice. On the contrary, following this line of reasoning, it would be fair and just to impute liability to the respondent.”

 

[10]     Having regard to De Klerk, the question in the present matter is whether the harm associated with the plaintiff’s detention after his appearance in court and being remanded from time to time until his release when charges were withdrawn against him, can be attributed to the unlawful arrest by the police. As in De Klerk, the present matter implicates the causation requirement in the context of alleged unlawful detention. Save for the submission on behalf of the plaintiff that he should be compensated for the full period of his detention, no submissions are made as to any causal connection between the wrongful conduct of the arresting officer as found by the Full Court and his detention post court appearance.

 

[11]     In considering the period of detention for which the plaintiff should receive solatium, both the pleadings (the facta probanda) and the evidence (the facta probantia) must be considered in conjunction with the findings of the Full Court in relation to the present matter in dismissing the claim for malicious prosecution.

 

[12]     In the very insightful judgment of Minister of Police and Another v Erasmus[3] (Tsoka AJA (Dambuza, Van der Merwe and Mocumie JJA and Weiner AJA concurring), relevant to the present matter, the Supreme Court of Appeal (‘SCA’) considered the liability of the police for post-court appearance in a delictual claim based on the actio iniuriarum for unlawful arrest and detention, not caused by unlawful conduct of the police. The SCA in this regard considered the elements of malicious deprivation of liberty. To appreciate the principles enunciated in Erasmus, it is apposite to have regard to the following extracts from the judgment:

 

“[1]      This appeal concerns the arrest and detention of the respondent, Mr Edward Alberto Erasmus (Mr Erasmus) from 4 to 5 May 2016 (the first period) by members of the South African Police Service (the police) and his further detention, after his appearance in court, from 5 May to 19 May 2016 (the second period).

 

                       …

 

[9]     In the main, the high court concluded that the arrest of Mr Erasmus and his consequent detention for the first period was unlawful because the regional court ought to have rejected the evidence of the police officer who effected the arrest, Cst Schoeman, because his evidence was unsatisfactory on when he had advised Mr Erasmus of his rights and whether Mr Erasmus had given him an exculpatory statement at the scene of arrest. It held that the detention for the second period was unlawful on the basis that W/O de Koning failed to prepare and submit a bail affidavit which would, inevitably, have enabled the court to exercise its discretion by admitting Mr Erasmus to bail. The high court reasoned that … on the facts it is clear that but for the unlawful arrest by Cst Schoeman, the magistrate would not have remanded Erasmus in custody for a week Regarding the second period of detention, the high court accepted that . . . there was proper judicial intervention by a magistrate in setting bail. However, on the facts this did not break the chain of unlawful conduct by both the police and the NDPP.

 

[10]   On a reading of the record, it is difficult to fathom the reasons for the high court’s findings that the arrest and detention for the first period were unlawful. These findings were not, however, appealed against. The appellants challenge only the quantum of damages in respect of the arrest and initial detention, to which I shall revert. I now turn to the detention for the second period from 5 May to 19 May 2016.

 

[11]   It is necessary, at the outset, to set out the basic principles of our law that are applicable to the determination of the liability of the Minister and the NDPP for the deprivation of the liberty of Mr Erasmus for this period. These are the following. Both wrongful and malicious deprivation of liberty are iniuria actionable under the actio iniuriarum. Wrongful deprivation of liberty (detention) takes place where the defendant himself, or his agent or employee, detains the plaintiff. Malicious detention takes place under or in terms of a valid judicial process, where the defendant makes improper use of the legal machinery of the state. The requirements to succeed in an action for malicious detention are therefore like those for malicious prosecution namely: that the defendant instigated the detention; that the instigation was without reasonable and probable cause; and that the defendant acted with animus iniuriandi. See Neethling et al Law of Delict 5 ed (2006) at 304-306. It follows that the NDPP could only be liable for the second period of detention if these stringent requirements were proved in respect of the relevant prosecutors.

 

[12]   When the police wrongfully detain a person, they may also be liable for the post-hearing detention of that person. The cases show that such liability will lie where there is proof on a balance of probability that, (a) the culpable and unlawful conduct of the police, and (b) was the factual and legal cause of the post-hearing detention. In Woji v Minister of Police  [2014] ZASCA 108;  2015 (1) SACR 409 (SCA), the culpable conduct of the investigating officer consisting of giving false evidence during the bail application caused the refusal of bail and resultant deprivation of liberty. Similarly, in Minister of Safety and Security v Tyokwana  [2014] ZASCA 130;  2015 (1) SACR 597 (SCA), liability of the police for post-hearing detention was based on the fact that the police culpably failed to inform the prosecutor that the witness statements implicating the respondent had been obtained under duress and were subsequently recanted and that consequently there was no credible evidence linking the respondent to the crime. In De Klerk v Minister of Police [  2019] ZACC 32; 2020 (1) SACR (CC) paras 58 and 76, the decisive consideration in both the judgments that held in favour of the appellant was that the investigating officer knew that the appellant would appear in a reception court where the matter would be remanded without the consideration of bail. Finally, in Mahlangu and Another v Minister of Police [2021] ZACC 10;  2021 (2) SACR 595 (CC), the investigating officer deliberately supressed the fact that a confession which constituted the only evidence against the appellants, had been extracted by torture and thus caused their continued detention.

                       …

[15]   As I have said, the liability of the NDPP depended on proof that the prosecutors, who appeared on 5 May 2016 (Ms Naidoo) and 12 May 2016 (Ms Le Bron), had caused the second period of detention or part thereof and had acted without reasonable and probable cause and animo iniuriandi, that is, with the intent to injure Mr Erasmus…

 

[16]   It is not necessary to consider whether Ms Naidoo caused any part of the second period of detention. That is so because she had reasonable and probable cause to oppose bail and clearly did not act with animus iniuriandi. Ms Le Brons conduct did not cause the detention from 12 May 2016 and nothing more needs to be said in respect thereof. It follows that the high court erred in holding the Minister and the NDPP liable for the second period of detention.

 

                       …

 

[17]   It remains only to consider the award of R50 000 in respect of the arrest and detention of the first period. Mr Erasmus was detained for approximately 20 hours in unpleasant conditions. Nevertheless, there is a striking disparity in the amount of damages that I would award (R25 000) and that of the high court. This justifies this Court’s interference with the exercise of the discretion of the high court in this regard. The appeal against the quantum of damages in respect of the arrest and detention for the first period must also succeed and the award must be replaced with one in the amount of R25 000.”

 

The pleadings (Particulars of Claim)

 

[13]   Against the authorities considered above, it is apposite to consider the allegations in the particulars of claim in respect of the detention of the plaintiff, both in the claim for unlawful arrest and detention and the claim for malicious prosecution. In respect of the claim for unlawful arrest and detention, the issue of detention is pleaded as follows:

 

         “CLAIM ONE: UNLAWFUL AND MALICIOUS ARREST AND DETENTION

 

7.             On 9 December 2013 the Plaintiff appeared in court and was remanded in custody…

 

8.             The Plaintiff's arrest and detention was without a reasonable and probable cause, nor did employees of the first Defendant referred to above believe in the veracity of the information at their disposal that the Plaintiff did commit rape and housebreaking and theft.

 

…

 

11. As a result of the conduct of the first Defendant, the Plaintiff was held in custody from 7 December 2013 until 12 February 2015, a total of 431 days.”

 

           CLAIM TWO: MALICIOUS PROSECUTION

 

     16. When charging and/or proceeding with the criminal prosecution against the Plaintiff the second Defendant whilst represented by Ms Magile, the Senior Public Prosecutor:

 

16.1 Failed to satisfy herself that there was sufficient evidence to prosecute the Plaintiff and acted with no reasonable or probable cause nor did they have any reasonable belief in the truth of the information at their disposal to prosecute the Plaintiff;

 

16.2 Despite the fact that the Plaintiff was not properly identified by the victim, the second Defendant acted with malice in proceeding with the criminal trial and for prosecution of the Plaintiff;

 

16.3 Despite the fact that the DNA analysis results came out negative not linking the Plaintiff to the offence of rape, the second Defendant refused to withdraw charges against the Plaintiff and maliciously caused further detention of the Plaintiff.

 

          As a result of the second Defendant’s conduct as aforesaid, the Plaintiff was arrested and held in custody for 431days.”

 

Discussion

 

[14]     The submissions from counsel in respect of the period of detention are diametrically opposed. Ms Ntsamai contends the plaintiff should be compensated for the full period of detention from 7 December 2013 to 12  February 2015. Mr Masike on the other hand, contends that the plaintiff should only be compensated for a period of four months.

 

[15]   As correctly pointed out by Mr Masike, no evidence was presented by the plaintiff that, as a consequence of his arrest on 7 December 2013, this was considered a violation of his parole conditions, which resulted in his detention at Rooigrond Correctional Facility, to complete his sentence. In the absence of evidence from which it can be inferred that the plaintiff’s arrest on the present matter resulted in same being considered a violation, any contentions to that effect would be speculative.

 

[16]     The facts of this matter is distinguishable from De Klerk. In De Klerk there was a causal connection between the conduct of the police officer who was acutely aware of how the reception court in the district operated, where De Klerk would make his first appearance and the fact that De Klerk would be remanded in custody. In the present matter, no causal connection exists between the arrest of the plaintiff and his detention for the full period on the evidence. There is nothing in the evidence to suggest that the arresting officer acted with malice by withholding crucial information from the prosecution.

 

[17]    In fact, the information contained in the affidavits of the arresting officer and the complainant was considered by the prosecutor to initiate the prosecution of the plaintiff. It also cannot be overlooked that the Full Court found no basis to overturn the dismissal of the claim for malicious prosecution, which was based on the very same affidavits and the facts alleged therein. The present matter is devoid of any evidence akin to that in “Woji v Minister of Police  [2014] ZASCA 108;  2015 (1) SACR 409 (SCA), where the culpable conduct of the investigating officer consisting of giving false evidence during the bail application caused the refusal of bail and resultant deprivation of liberty.” It is similarly distinguishable from “Minister of Safety and Security v Tyokwana  [2014] ZASCA 130;  2015 (1) SACR 597 (SCA), where liability of the police for post-hearing detention was based on the fact that the police culpably failed to inform the prosecutor that the witness statements implicating the respondent had been obtained under duress and were subsequently recanted and that consequently there was no credible evidence linking the respondent to the crime.” And, as already alluded to above, it is distinguishable from De Klerk. In the absence of any causal connection implicating the arresting officer in the further detention of the plaintiff, and the fact that the claim for malicious prosecution was dismissed and upheld on appeal, the Minister of Police cannot be held liable for the second period of detention.

 

[18]   The contentious issue is the liability of the NDPP for the second period of detention of the plaintiff from 9 December 2013 to the date the plaintiff was returned to prison to serve the remainder of a previous sentence imposed on him; and the third period of detention from the date he completed the aforesaid sentence until 12 February 2015, when charges were withdrawn against him.

 

[19]   The plaintiff takes issues with the decision of the prosecution through Adv Kalakgosi, a Regional Court prosecutor at the time, who persisted in the prosecution of the plaintiff after the receipt of DNA results from the police, which excluded the plaintiff as a donor of the DNA. The Full Court extrapolated the evidence of the prosecutor, Advocate Kalakgosi, as follows: “Kalakgosi also testified that he received the DNA results, on/or around 22 August 2014 and same was never made available to the defence until 9 February 2015 when he still had the intention to proceed notwithstanding the DNA excluded the plaintiff as donor of the sample analysed.” Kalakgosi did not make the DNA results available to the defence until 9 February 2015, as he was still intent on proceeding with the prosecution of the plaintiff relying on the statement of the complainant in identifying the plaintiff as the alleged perpetrator of the rape.

 

[20]   Had Kalakgosi made the defence aware of the DNA results in August 2014, the defence could possibly have pursued representations to the State, to reconsider its position in respect of the prosecution of the plaintiff.   

 

[21]  Can the NDPP be held liable for the second and third periods of detention? The answer to the second period must be NO, in light of the Full Court upholding the dismissal of the claim for malicious prosecution. In respect of the third period of detention, the question is whether Kalakgosi’s decision to persist in the prosecution when seized with the DNA results be construed as having been without reasonable and probable cause and animo iniuriandi, that is, with the intent to injure the plaintiff.

 

[22]   In the formulation of claim two for malicious prosecution, it is alleged that “Despite the fact that the DNA analysis results came out negative not linking the Plaintiff to the offence of rape, the second Defendant refused to withdraw charges against the Plaintiff and maliciously caused further detention of the Plaintiff.” Mr Masike submits that the prosecutor, being in possession of the DNA results, did not withdraw the charges until 12 February 2015. On this score, the plaintiff has specifically pleaded that the second defendant through the actions of Kalakgosi, maliciously caused the further detention of the plaintiff when he refused to withdraw the charges against the plaintiff. There is no evidence that Kalakgosi refused to withdraw the charges against the plaintiff when he came to be in possession of the DNA results. Can it be said that Kalakgosi was the cause of the continued detention of the plaintiff in the third period, through malice? An examination of the authorities in respect of malicious detention with due regard to the judgment of the Full Court on the claim for malicious prosecution, provides the answer to this question.  

 

[23]  In Erasmus, supra, the following was said in respect of malicious detention:

 

“[11] … Both wrongful and malicious deprivation of liberty are iniuria actionable under the actio iniuriarum. Wrongful deprivation of liberty (detention) takes place where the defendant himself, or his agent or employee, detains the plaintiff. Malicious detention takes place under or in terms of a valid judicial process, where the defendant makes improper use of the legal machinery of the state. The requirements to succeed in an action for malicious detention are therefore like those for malicious prosecution namely: that the defendant instigated the detention; that the instigation was without reasonable and probable cause; and that the defendant acted with animus iniuriandi. See Neethling et al Law of Delict 5 ed (2006) at 304-306. It follows that the NDPP could only be liable for the second period of detention if these stringent requirements were proved in respect of the relevant prosecutors.

                       … 

 

          [15]   As I have said, the liability of the NDPP depended on proof that the prosecutors, who appeared on 5 May 2016 (Ms Naidoo) and 12 May 2016 (Ms Le Bron), had caused the second period of detention or part thereof and had acted without reasonable and probable cause and animo iniuriandi, that is, with the intent to injure Mr Erasmus.”

 

[24]    The absence of reasonable and probable cause to initiate, instigate or continue with the prosecution (detention in the present matter caused by the prosecution) was formulated as follows in Beckenstrater v Rottcher and Theunissen[4]:

 

“When it is alleged that a defendant had no reasonable cause for prosecuting… this means that he did not have such information as would lead a reasonable man to conclude that the plaintiff had probably been guilty of the offence charged; if, despite his having such information, the defendant is shown not to have believed in the plaintiff’s guilt, a subjective element comes into play and disproves the existence, for the defendant, of reasonable and probable cause.” 

 

(my emphasis)

 

[25]     In Relyant Trading v Shongwe[5] the following was said:

 

‘Malicious prosecution consists in the wrongful and intentional assault on the dignity of a person comprehending also his or her good name and privacy. The requirements are that the arrest or prosecution be instigated without reasonable and probable cause and with “malice” or animo iniuriarum. Although the expression “malice” is used, it means, in the context of the actio iniuriarum, animus iniuriandi. In Moaki v Reckitt & Colman (Africa) Ltd and Another Wessels JA said:

 

“Where relief is claimed by this actio the plaintiff must allege and prove that the defendant intended to injure (either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s true intention or might possibly be taken into account in fixing the quantum of damages, the motive of the defendant is not of any legal relevance.”

 

(my emphasis)

 

[26]     In Minister of Justice and Constitutional Development and Others v Moleko[6], the SCA expressed itself further on the issue of malice as follows:

 

“The defendant must thus not only have been aware of what he or she was doing in instituting or initiating the prosecution, but must at least have foreseen the possibility that he or she was acting wrongfully, but nevertheless continued to act, reckless as to the consequence of his or her conduct (dolus eventualis). Negligence on the part of the defendant (or, I would say, even gross negligence) will not suffice.’

 

(my emphasis)

          

[27]  I reiterate what the Full Court said at paragraphs [27] and [28] in the context of the claim for malicious prosecution, which inextricably encapsulates the issue of malicious detention:

 

“[27]     Of course in the current case the forensic test results could not link the plaintiff to the crime of rape. When the DNA results were received, the prosecutor still did not withdraw the case against the plaintiff. The prosecutor testified that regardless of the forensic test results, he was of the view that the nature of the information in the statements could not exclude the possibility of a conviction of the plaintiff. Care should always be taken by public prosecutors when DNA test results do not connect the suspect to the crime of rape. There are ways of penetrating a rape victim and yet no DNA trace of the wrong doer is deposited in the victim’s private parts. One should not forget what the prosecutor told the Court in this trial (civil case). His view is that on the day she finally decided to withdraw the case, the complainant was present in court and she still insisted that the person who had raped her was no one else but the plaintiff. The complainant is alleged to have given this information to the prosecutor outside the court. Had the complainant testified, she may have explained the alleged contradiction between her and Kgetsane’s statements to the court. It is common phenomenon for instance for a witness to disallow the contents or part of the contents of a statement made to the police.

 

[28]     In my view therefore, this is not a situation (case) where the prosecutor could be said to have acted without reasonable and probable cause or that he acted animo injuriandi when he decided to prosecute the plaintiff. In the result, the claim for malicious prosecution stands to be dismissed. In my view therefore, the court a quo acted properly in dismissing this claim.”

 

(my emphasis)

 

[28]    As I have stated above, I am constrained by the judgment of the Full Court. The Full Court dismissed the appeal against the dismissal of the plaintiff’s claim for malicious prosecution. The finding at paragraph [28] of the judgment of the Full Court has not been appealed further. It found that “…this is not a situation (case) where the prosecutor could be said to have acted without reasonable and probable cause or that he acted animo injuriandi when he decided to prosecute the plaintiff.” This exonerates Kalakgosi from any contention that he maliciously caused the further detention of the plaintiff upon receipt of the DNA results.    

 

[29]    To sum up the issue of the detention of the plaintiff. No issue can be taken with the first period of detention of the plaintiff from the date of his arrest on the morning of 7 December 2013 to his first appearance in court on 9 December 2013, for which the Minister is liable. In respect of the second and third periods of detention, it follows explicitly from the authorities supra and more specifically the judgment of the Full Court that the NDPP, cannot be held liable for the detention of the plaintiff.

 

[30]   Ultimately this Court, constrained by the judgment of the Full Court can only consider solatium for the unlawful arrest and detention of the plaintiff for the period commencing on the morning of 7 December 2013, when the plaintiff was arrested, until his first appearance in court on 9 December 2013 (two days).

 

Assessment of quantum for the period 7 December 2013 to 9 December

2013

 

[31]    At the outset, a misnomer in the submissions of Ms Ntsamai that this Division of the High Court has a “going rate” for awards in unlawful arrest and detention matters must be corrected. The following is said in the heads of argument:

 

         “41. From the comparable cases of this division, it appears as though the “going – rate” is between R15 000.00 and R30 000.00 per day.

 

           42. We therefore submit that a fair and reasonable amount for the Plaintiff would be R20 000.00 a day given his age, circumstances and nature and duration of his unlawful arrest and detention of 431 days.”

 

[32]  In Motladile v Minister of Police[7] (Kathree-Setiloane AJA (Mbatha and Gorven JJA and Nhlangulela and Mali AJJA concurring), the SCA considered “the question whether damages in the amount of R60  000 awarded by  the North West Division of the High Court, Mahikeng, per Mahlangu AJ (the high court) to the appellant, arising from his unlawful arrest and detention, are fair and reasonable having regard to the circumstances of the case.” The SCA went on to state as follows:

 

“[13]    At the outset of the appeal, and in the heads of argument, the respondent conceded that the damages the high court awarded to the appellant are so disproportionately low, that this Court can infer that the high court did not exercise its discretion properly. The high court found that having regard to the facts and circumstances of the case, an adequate award would be an amount of R15 000 per day, which amounts to R60 000 for the four days that the appellant spent in detention. In adopting the amount of R15 000 per day, the high court followed a practice that has developed in the North West Division of the High Court, Mahikeng (North West Division) of applying a ‘one size fits all’ approach of R15 000 per day to damages claims for unlawful arrest and detention…

 

[17]    The assessment of the amount of damages to award a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff had spent in detention. Significantly, the duration of the detention is not the only factor that a court must consider in determining what would be fair and reasonable compensation to award. Other factors that a court must take into account would include (a) the circumstances under which the arrest and detention occurred; (b) the presence or absence of improper motive or malice on the part of the defendant; (c) the conduct of the defendant; (d) the nature of the deprivation; (e) the status and standing of the plaintiff; (f) the presence or absence of an apology or satisfactory explanation of the events by the defendant; (g) awards in comparable cases; (h) publicity given to the arrest; (i) the simultaneous invasion of other personality and constitutional rights; and (j) the contributory action or inaction of the plaintiff.

 

[18]    It is as well to remember what this Court said in Tyulu v Minister of Police:

 

‘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 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. 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. . ..’

         

[25]    On consideration of the facts and circumstances of this case, as well as recent awards made by our courts in comparable cases and the steady decline in the value of money, I consider an award of R200 000 to be fair and reasonable compensation for the damages arising from the appellant’s unlawful arrest and detention.”

 

[33]   Notably in Erasmus, supra, where the first period of detention as in the present matter was considered, the SCA said the following:

 

“[17]   It remains only to consider the award of R50 000 in respect of the arrest and detention of the first period. Mr Erasmus was detained for approximately 20 hours in unpleasant conditions. Nevertheless, there is a striking disparity in the amount of damages that I would award (R25 000) and that of the high court. This justifies this Court’s interference with the exercise of the discretion of the high court in this regard. The appeal against the quantum of damages in respect of the arrest and detention for the first period must also succeed and the award must be replaced with one in the amount of R25 000.”

 

[34]    With due regard to the judgments of Motladile and Erasmus supra, the sentiments expressed in Rahim and 14 others v The Minister of Home Affairs 2015 (7K6) QOD 191 (SCA) at paragraph 27, is equally apposite to the determination of an appropriate award of damages:

 

“[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 considerations 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 an 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)

 

[35]  The Full Court found that on the weight of the evidence, the probabilities favoured the plaintiff on the circumstances surrounding his arrest. In elaborating on the circumstances relevant to his arrest and detention from 7 December 2013 to 9 December 2013, the plaintiff testified in this Court on quantum. The plaintiff is presently 32 years old. At the time of his arrest on 7 December 2013, he was 23 years old. He has no children and he is presently unemployed. There is no evidence on his employment status at the time of his arrest. He completed Grade 11 and pursued a qualification as a diesel mechanic during 2010 to 2012, but failed to complete such studies. This constitutes the evidence of the plaintiff as to his standing in society.

 

[36]   At the time of his arrest on the morning of 7 December 2013, he had just woken up, clad in a short boxer pyjamas and a vest. He saw police officers through his bedroom window. His mother was opening the gate and approaching the said police officers. The police officers requested to meet with him and his mother called out to him. When he met with the police officers, they introduced themselves and requested to ask him a few questions in their motor vehicle. He obliged and they all went to motor vehicle of the police officers. Once he had boarded the vehicle, he was not asked any questions and the police officers instead drove off. He could not speak to his mother and he was not informed why he was being taken, whilst still clad in his short boxer pyjamas and vest.

 

[37]     The plaintiff was arrested at his parental home while still clad in his night clothes. He was removed from his parental home under the guise that the police officers wanted to question him. This constituted a violation of his right to dignity, notwithstanding the fact that he was accused of very serious charges. The police officers, however, later returned to his parental home to collect clothing for him. As to any malice or improper motive on the part of the arresting officer in arresting the plaintiff, I reiterate that the Full Court made no finding of any malice or improper motive on the part of the arresting officer. The Full Court at most raised concerns about the verbal information given by the complainant to the police which contradicted her statement to the police. In this regard paragraphs [18] and [19] of the judgment of the Full Court is apposite to demonstrate the absence of any finding that the arresting officer acted with malice:

 

“[18]     Constable Kgetsane is the one who arrested the plaintiff. He was accompanied by two colleagues who are both Constables. The information which they received from the victim of rape (the complainant) was that her house was broken into at night, she was raped by one person and the culprits also stole her plasma television, amongst others. Kgetsane testified that the complainant told them that she can identify the one who had sexually violated her because she usually see him in the streets of Unit 14 Mmabatho, and that he had been arrested before. In her statement to the police about this incident, the complainant stated that she was raped by an unknown man and that it was for the first time she saw him.

 

[19]     The complainant was not called to testify. Her statement to the police contradicts the verbal information which she gave to the police. In my view this is a crucial contradiction which the trial Court failed to give its full attention. Not only the complainant did not testify, in order to throw light on this matter but the two Constables who were with Kgetsane at the complainant’s house and at the plaintiff’s residence were not called by the defendant. The evidence of a single Constable (Kgetsane) had to contend with the evidence of the plaintiff and his three witnesses.

 

(my emphasis)

 

[38]     The plaintiff was taken to Mmabatho Police Station and placed in a holding cell where he was detained alone. The holding cell was not impressive in his words. There was no toilet and people had relieved themselves on the floor. Later that day, he was taken to another holding cell with other awaiting trial detainees after a document was completed by one Mr Mafora on which was written that he was charged with rape and robbery. According to the plaintiff he felt hopeless, very stressed and depressed. This constitutes the totality of the evidence on the conditions of the plaintiff’s detention from 7 December 2013 to 9 December 2013. The defendant led no evidence in respect of quantum.

 

[39]     In Erasmus, the SCA considered the fact that he had been “…detained for approximately 20 hours in unpleasant conditions.” and awarded him R25 000.00. In Motladile, the SCA premised the award granted, having regard to the facts and circumstances of the case, including recent awards made by our courts in comparable cases and the steady decline in the value of money and awarded R200 000.00 for four days.

 

Conclusion

 

[40]     I have had due regard to the peculiar circumstances attendant upon the arrest and detention of the plaintiff from 7 December 2013 to 9 December 2013. I have considered the comparable case of Erasmus on quantum, and given due weight to the decline in the value of money (the inflationary impact) referred to in Motladile. In the final analysis, having considered the reasoning of the SCA in Motladile, Erasmus and Rahim as a whole, where reference and deference is made to Tyulu, I am satisfied that a fair award in an amount of R60 000.00 for the two (2) days from 7 December 2013 to 9 December 2013, is merited.

 

Costs

 

[41]    Costs ordinarily follow suit. The first defendant is accordingly liable for the plaintiff’s costs of suit in respect of quantum, on a party and party scale, to be taxed.

Order

 

[42]     In the result, the following order is made:

 

(i)            Judgment is granted in favour of plaintiff against the first defendant in an amount of R60 000.00 (sixty thousand rand) for his unlawful arrest and detention for the period 7 December 2013 to 09 December 2013.

 

(ii)          The first defendant is ordered to pay interest on the aforesaid amount of R60 000.00 (sixty thousand rand), at the prescribed rate of  10.5% per annum, from date of this judgment until date of final payment.

 

(iii)         The first defendant is ordered to pay the costs of suit in respect of quantum on a party-and-party basis, to be taxed.

 

 

A H PETERSEN

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

COUNSEL FOR THE PLAINTIFFS:	ADV O NTSAMAI
Instructed by:	SEELETSO ATTORNEYS
	No 484 DP Kgotleng Street
	Montshiwa
	MMABATHO
COUNSEL FOR THE DEFENDANTS’:	ADV T MASIKE
Instructed by:	THE STATE ATTORNEY
	MMABATHO
DATE OF HEARING:	17 MAY 2023
HEADS OF ARGUMENT FILED:	01 AND 07 JUNE 2023
DATE OF JUDGMENT:	24 AUGUST 2023

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