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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO: 408/18

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

 

GERHARD THOMAS OOSTHUIZEN                              1^ST PLAINTIFF

 

PIETER GROENWALD                                                   2^ND PLAINTIFF

 

and    

 

THE MINISTER OF POLICE                                           DEFENDANT          

REASONS FOR JUDGMENT

REDDY AJ

 

Introduction

[1]        The plaintiffs were arrested by servants of the defendant, the Minister of Police, on allegations of assault and pointing of firearm, on the morning of 7^th September 2018, detained and released later that day at approximately 15h50. The plaintiffs were detained for a period of about 8 (eight) hours. Pursuant, to their release, the plaintiffs issued summons against the defendant, claiming individual relief which was subsequently consolidated. Each of the plaintiffs prayed for the following damages:

         (i) General damages in respect of contumelia, deprivation of freedom, discomfort, suffering, loss of amenities of life, emotional shock and psychological trauma ( it is not practical to state separately which amounts are claimed pertaining to each of the aforesaid items claimed and therefore a globular sum is claimed at this stage)  R350 000. 00

 

          (ii) Past and future loss of income                          R50 000.00

 

           (The abovementioned amount will be duly quantified upon receipt of an expert report)

 

        (iii) Past medical expenses                                        R10 000.00

 

        (iv) Future medical expenses                                    R100 000.00

 

        (v) Legal costs in defending criminal matter              R10 000.00

 

           TOTAL                                                                    R520 000.00

 

[2]        By order of court, dated 19 April 2021, the merits and quantum were duly separated in terms of Rule 33(4) of the Uniform Rules of Court. Moreover, it was ordered that the defendant would be liable for 100% of the plaintiffs proven or agreed damages. On 27 February 2023, the allocated date of hearing of evidence on quantum, counsel for each of the parties agreed to the tendering of affidavit evidence for the due consideration in respect of the damages suffered by the plaintiffs. This negated the hearing of oral evidence.  Similarly, it was agreed that the hearing of oral argument would be dispensed of in terms of Rule 17(1) (a) of the Superior Courts Act.

 

[3]        Resultantly, two issues fall for consideration, firstly the quantum of general damages to be awarded to each plaintiff and the scale of costs. 

 

The evidence of the plaintiffs on quantum

 

[4]        The first plaintiff was sixty nine (69) years old at the time of his arrest, farming at Witstinkhoutboom, Lichtenburg, previously employed at Iscor as an electro- technical engineer. The first plaintiff is married with one major child. On 7^th September 2017, the plaintiff had driven to the SAPS, Lichtenburg, intending to register a criminal case against the complainant in Lichtenburg CAS 54/09/2017, who had allegedly attacked him with a knife the previous evening during a tiff.

 

[5]        On the arrival at the SAPS, Lichtenburg at 7h00, the first plaintiff was referred to a certain office. At this office, he was arrested and handcuffed at approximately 8h00, by a servant of the defendant. The first plaintiff contended that his arrest was in full view of the public dispersed therein where his neighbours and friends, He was then transported in the back of a detention police motor vehicle to the Detective Branch which was two blocks away from the Lichtenburg SAPS.

 

[6]        The first plaintiff was detained at the Detective Branch for more than two hours when Detective Mothladile arrived with the second plaintiff. The second plaintiff was forty (40) years old when he was arrested at his pervious abode, in the presence of his youngest of two sons.  Both plaintiffs were detained in a room-like holding cell for another two hours before being formally charged at just about 13h00.

 

[7]        The wife of the first plaintiff managed to secure the services of the first plaintiff’s legal representative, Mr Van Tonder. On the intervention of Mr Van Tonder, both plaintiffs were taken to court around 14h00. At court, both plaintiffs were detained in the court’s holding cells with an estimated ten (10) other detainees.

 

[8]        The holding cell at court was an estimated twelve square meters. This curtailed movement and made it physically impossible to sit or move around. There was a single functioning water tap. The latrine was broken and offered no privacy, and was used by the first plaintiff in full view of other detainees. The odour emitting from the blocked latrine had to be inhaled.

 

[9]        Neither of the plaintiffs made a formal first appearance before a Magistrate. At about 15h50, both plaintiffs were released unconditionally.

 

[10]     No apologies have been tendered by servants of the defendant. As a result of the plaintiffs being involved in various anti-crime initiatives, the news of their collective arrest spread exponentially on the what’s app social media platform, which was exaggerated because of the small community within which the plaintiffs reside in.

 

Defendants Submissions

[11]     The defendant did not present any rebutting affidavit evidence, but merely made summations in terms of written heads. These heads are merely a regurgitation of seminal authorities and need not detain this Court. In essence, the defendant contends that an award of R3000.00 per plaintiff should be awarded.

 

 The law

 [12]       The approach that a court seized with the determination of a suitable award for the unlawful arrest and detention has been enunciated by the Supreme Court of Appeal in The Minister of Safety and Security v Tyulu 2009 (5) SA at paragraph [85], the SCA held as follows:

 

“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.”

 

[13]   In the determination of an award for damages for unlawful arrest and detention, a court is seized with a discretion to find what is fair and reasonable to all parties, taking due cognizance of public policy.

 

[14]   In Hulley v Cox 1923 AD 234 at 246, the Appellate Division stated that:

 

        “…we cannot allow our sympathy for the claimants in this very distressing case to influence our judgment.”

 

[15]   In Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) at 287 E-F Holmes J (as he then was) held that:

 

       “[T]he court must take care to see that its award is fair to both sides – it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant’s expense.”

 

[16]    In the attainment of an award that is fair and reasonable each case must be considered with due regard to its own particularities and exigencies. In Visser & Potgieter, Law of Damages, Third Edition, on pages 545 to 548, the following factors are set out which provides guidance to the assessment of damages:

 

“In deprivation of liberty the amount of satisfaction is in the discretion of the court and calculated ex a equo et bona. Factors which can play a role are the circumstances under which the deprivation of liberty took place; the presence or absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendants; the duration and nature (eg solitary confinement or humiliating nature) of the deprivation of liberty; the status, standing, age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in previous comparable cases; the fact that in addition to physical freedom, other personality interests such as honour and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation; the fact that the plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the actio iniuriarum also has a punitive function.”

 

[17]   As was held by the SCA in Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA), the assessment of awards of general damages with reference to awards made in previous cases is fraught with difficulty. The facts of a particular case need to be looked at as a whole and few cases are directly comparable. They are a useful guide to what other courts have considered to be appropriate but they have no higher value than that.

 

[18] In Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) the following was stated:

 

 ‘The process of comparison [should] not take the form of a meticulous examination of awards made in other cases in order to fix the amount of compensation; nor should the process be allowed so to dominate the enquiry as to become a fetter upon the Court's general discretion in such matters. Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time, it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those in the case under consideration.' .

 

[19]  The court took into account that the unlawful arrest and detention of the plaintiffs was a grave violation of a number of constitutionally preserved rights, the most critical of which was the right to liberty.In Thandani v Minister of Law and Order 1991[1] SA 702 [E] at 707 the following was said:

 

          “ In considering quantum sight must not be lost of the fact that the liberty of an individual is one of the fundamental rights of a man[ or woman] in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against infringement. Unlawful arrest and detention constitute a serious in road into the freedom and rights of an individual.”

 

[20]      In Masisi v Minister of Safety and Security 2011 [2] SACR Mokgoka J very astutely in my view described the purpose of an award for general damages in the context of a matter such as the present as a process in which one seeks to compensate a plaintiff for deprivation of personal liberty. The following was stated at paragraph [18]

 

           [18] The right to liberty is an individual's most cherished right, and one of the foundational values giving inspiration to an ethos premised on freedom, dignity, honour and security. Its unlawful invasion therefore strikes at the very fundament of such ethos. Those with authority to curtail that right must do so with the greatest of circumspection, and sparingly.

 

[21]      After a careful consideration of the circumstances that are germane to the arrest of both plaintiffs, their respective ages, the circumstances of their individual arrests, the nature and the duration of their detention and the impact of the arrest on each of them given the role that the plaintiffs played in their small community. I am mindful that the plaintiffs suffered some emotional trauma as a result of this entire episode. The full extent thereof was not laid before this Court in the absence of medical or expert evidence.

 

[22]   One of the heads of damages was for legal costs in defending the criminal matter. No evidence was presented on this head. There is no evidence on how the amount of R10 000.00 was arrived at. Moreover there is no assertion that this amount in respect of legal fees was fair and reasonable. Resultantly,  the claim for legal costs have not been proven. 

 

Costs

 

[23]      Relating to costs, it should follow the result and be awarded in favour of the plaintiffs. This is a trite principle in our law and does not necessitate further explication. There is no basis that warrants a deviation. It is the appropriate scale that must be determined.

 

[24]      The plaintiffs were detained for 8(eight) hours each. Whilst the caution enunciated in Diljan v Minister of Police 2022 JDR 1759 (SCA) was handed down on 24 June 2022, the common sense approach still echoed true in 2018, that practitioners ought to know the reasonable measure of previous awards, which serve as a barometer in quantifying their claims even at the stage of the issue of summons.

 

[25]      Practitioners are aware or ought to be aware of what can be reasonably claimed based on the principles in our law. The initial amounts claimed by the plaintiffs under the various heads was clearly a guesstimate which undoubtedly did not correlate with the facts which were within the implicit knowledge of the plaintiffs’ legal team. Such amounts inserted in particulars of claims, unfounded on fact and subsequent expert evidence creates unreasonably expectations in the eyes of the unacquainted plaintiff, which may prove to be the folly of many uninformed. It is a practice that must be deprecated.    

 

Order

[26]      In the premises the following order is made:

 

(i)            The defendant is ordered to pay the first plaintiff an amount of R10 000 00 ;

 

(ii)          The defendant is ordered to pay the second plaintiff an amount of R10 000 00;

 

(iii)         The defendant is ordered to pay interest in respect of each of the aforesaid amounts, at the prescribed rate from date of judgment until date of payment;

 

(iv)         The defendant is ordered to pay the costs of the suit on a party –and- party basis and on the applicable Magistrates’ Court scale.

 

A REDDY

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

For the Applicant:	Mr Labuschagne
Instructed by Bosman & Bosman C/O:	Attorneys Labuschagne Attorneys
	19 Constantia Drive
	Reviera Park, Mahikeng
	Tel: 018 381 6828
For the Respondent:	Mr Sekgota
Instructed by:	State Attorney
	1st Floor, East Gallery
	Mega City Complex
	Mmabatho
Date of hearing:	Heads submitted 10 March 2023
Date of judgment:	16 May 2023

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