Claassens v Nakana and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Makgoba JP |
| Judgment Date | 16 August 2022 |
| Court | Limpopo Division, Polokwane |
| Hearing Date | 12 August 2022 |
| Docket Number | HCAA01/2022 |
Makgoba JP:
This is an appeal against the judgment and order of a single Judge of this Division (Mdhuli AJ).
Leave to appeal was granted by the Court a quo as regards to paragraph 6 of her order and leave to appeal was granted by the Supreme Court of Appeal as regards to paragraph 2 of the order of the Court a quo.
The present appeal is specifically in respect of:
Paragraph 2 of the order of the Court a quo insofar as it relates to the amount representing general damages awarded to the Appellant for his claim of unlawful arrest and detention.
Paragraph 6 of the order of the Court a quo in its entirety. The Court a quo had dismissed the Appellant's claim 2 of malicious prosecution irrespective of the fact that the First Respondent had conceded and admitted liability at the trial.
At the inception of the trial the First to Third Respondents conceded to the merits 100% in favour of the Appellant in respect of claim 1 of Unlawful Arrest and Detention. The First Respondent conceded to the merits 100% in favour of the Appellant in respect of claim 2 of Malicious Prosecution.
2022 JDR 2336 p3
Makgoba JP
It is clear from the above that the trial was to be proceeded with only in respect of determination of the quantum of damages for both claims 1 and 2. The Court a quo awarded an amount of R 40 000.00 for claim 1 (unlawful arrest and detention) and dismissed claim 2 (malicious prosecution). The claim for malicious prosecution was against the First Respondent only.
The main issues on appeal are the following:
Whether or not the Court a quo erred in awarding the Appellant an amount of R 40 000.00 for general damages for his claim for unlawful arrest and detention.
Whether or not the Court a quo erred in dismissing the Appellant's claim for malicious prosecution against the First Respondent despite the fact that the First Respondent conceded to the merits 100% in favour of the Appellant.
Appellant's personal circumstances and circumstances relating to the Arrest and Detention
The Appellant is a registered and professional conservationist with business address situated at Farm Wildebeesfontein, Polokwane.
2022 JDR 2336 p4
Makgoba JP
He has been practicing and doing business as a professional conservationist for 45 years. At the time of the arrest he was 60 years old and he is currently 67 years old.
The Appellant was unlawfully arrested on the 1st of July 2015 at approximately 14:30pm and detained until 09:30am on the 3rd of July 2015 when he was released on bail.
On the date of his arrest, 16 Police Officers in three motor vehicles came to arrest the Appellant at his farm. The First Respondent, an ex-police officer was also present. In fact, the First Respondent is the one who laid a complaint to the Police and caused the Appellant to be arrested.
The Police were aggressive towards the Appellant and his son. His rights were never read to him when he was arrested and the police refused to listen to him. The arrest was made in the presence of the Appellant's wife, son, employees and bystanders.
The Appellant was physically dragged out of his property and shoved into the police van when he struggled to get into the van as his hands were handcuffed behind his back. During his arrest he suffered an injury to his elbow which caused tremendous pain and suffering.
2022 JDR 2336 p5
Makgoba JP
On the way to the police station the police drove the police van in a reckless manner which caused the Appellant to fall from the benches inside the police van as he could not hold on.
Upon arrival at the police station he was instructed to alight from the vehicle. He struggled to alight and shuffled on his buttocks to get out of the vehicle. This was funny to the 3rd Respondent, the police officer.
At the police station the Appellant was made to sign a document without any explanation. When he indicated to the 3rd Respondent that he does not know what he is signing for, the 3rd Respondent indicated to him that he should not be "hardegat" he must just sign.
He was then put in the cells. He was scared and he was searched from top to toe by two black males for money and cigarettes. He then began praying Psalm 23.
The unchallenged evidence of the Appellant was that the cell was stinking of human faeces, vomit and urine. He was shown a place to sit on the wet floor next to the shower. The floor was wet from shower water and urine. It was extremely cold in the cells. The Appellant was still in his work clothes and was not wearing warm clothing. The cell was approximately 4m x 8m and there were approximately 22 other people in the cell.
2022 JDR 2336 p6
Makgoba JP
The Appellant did not receive any blankets but was given one by one of his inmates. The blanket was dirty and stinking of human odour. He could feel lice crawling all over his body. The cell was cold as it was in the middle of winter and the floor was cement and wet. The cell further did not have a ceiling and the roof was open. The wind blowing in had the same effect as a freezer. The Appellant could not sleep during his first night. There was no space for him to sleep. He was sitting upright the entire evening. The Appellant testified about the horror of the chanting of the inmates in the other cells and screaming of persons being assaulted. The second night the cell was cold as hell according to the Appellant. The Appellant indicated that he never before experienced pain in his life like that night.
The Appellant and Mr. Kubai, his employee were cuffed to each other on the second morning, and taken to the residence of the Appellant, for a purpose unknown to the Appellant.
The Appellant broke down in tears and begged the police not to return him to the cells but to keep him in the holding cell after the visit to his farm on the 2nd of July 2015. The Appellant further indicated that he still breaks down in tears if he relives the incident.
2022 JDR 2336 p7
Makgoba JP
On the morning of the 3rd of July 2015, he could not get up as he was frozen due to the cold. His body was stiff. He rolled over on his knees to get up and tried to hold on to the walls but could not get up. Two other inmates helped him getting up by lifting him under his arm pits. They helped him walk as he struggled to walk. This was extremely traumatizing and humiliating to the Appellant.
When he got home, he bathed two or three times scrubbing his skin to get rid of the smell. He was bitten by ticks and fleas all over his body.
It is clear from the judgment of the Court a quo that the Appellant more than once broke down in tears during his testimony. The Appellant was still clearly troubled about the incident even during the trial.
After the incident the Appellant indicated that he went for therapy at Pastor Retief Booysen. He was extremely humiliated, became depressed, suffered from restlessness, became aggressive and could not focus or concentrate at work after the incident.
Pastor Booysen was called as a witness. Pastor Booysen confirmed he saw the Appellant twice after the incident. He further indicated that the Appellant lost his believe in the justice system and he confirmed the trauma that the Appellant suffered.
2022 JDR 2336 p8
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