Hoogendoorn v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Nyathi J |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3536 (GP) |
| Docket Number | 58534/2012 |
| Court | Gauteng Division, Pretoria |
Nyathi J:
A. INTRODUCTION
This is a civil claim against the Minister of Police. The matter proceeds on quantum only since merits have already been dealt with in an earlier appeal, and the first defendant has been held 100% liable for the plaintiffs proven or agreed damages due to an unlawful arrest and detention.
On 4 November 2010 the plaintiff, then 49 years old, was allegedly involved in a police incident when, according to the particulars of her claim, she was arrested without a warrant by members of the Special Commercial Crime Unit. She was detained at the SAPS Krugersdorp holding cells until 8 November, and after bail was refused, detained at Sun City Diepkloof Prison and after re-appearing in court released on bail on 12 November 2010.
B. BACKGROUND
On 4 November 2010. She went to gym in the afternoon and arrived home about 18h00/18h30. She was busy making supper when her youngest son told her that there are men busy taking her husband into custody.
2023 JDR 3536 p3
Nyathi J
Thereafter the detectives took her and her son into custody. They were taken to Krugersdorp Police station at about 11h00 pm. The plaintiff was locked up in the holding cell of about 5 metres by 5 metres with a toilet and shower with no doors.
On Monday 8 November, Officer Maleka took the plaintiff and other detainees in a motor vehicle to Protea Court. She was later taken to a courtroom for bail purposes. Her daughter-in-law, Pastor, brother-in-law, her sister and husband were in attendance. She felt humiliated. Her son Jannie was granted bail but her husband and her were denied bail.
The plaintiff was there after taken to Sun City prison in a police van and detained there.
On Friday 12 November she was again taken to Protea court and after bail was granted, she was released.
The relationship between the applicant and husband broke down thereafter and they divorced.
She was emotionally frustrated and angry for three months after her release. She just wanted to stay at home and did not go out. During this time, she cried a lot and studied the Bible in an attempt to get her life back in order.
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Nyathi J
She also consulted a Psychologist, Ms. Anita Painter. The latter filed a comprehensive report regarding the emotional sequelae of the ordeal which the plaintiff went through during her incarceration.
Anxiety persists especially whenever she sees police roadblocks.
After giving her evidence, the plaintiff was thereafter cross-examined at length by Ms. Bothma. She was quizzed about her son’s age and whether he was a minor. It was suggested to her that her arrest was conducted in private and that she had been treated humanely in detention. She conceded that she had not been handcuffed on arrest, but otherwise, nothing of consequence emerged from this cross examination.
Mr. Venter then closed the plaintiff’s case, and Ms. Bothma likewise closed the case for the defendant without calling any evidence. Both Counsel addressed the court thereafter.
Mr. Venter submitted that it is common cause that the plaintiff’s subjective experience of 4 November to 12 November 2010 in detention was unlawful. Her Constitutional right to freedom and movement was breached in a severe fashion.
Further, he continued, the plaintiff did not overplay her situation by breaking down in tears before court. Nothing in her evidence is outlandish or disproven.
2023 JDR 3536 p5
Nyathi J
The only arrow in the quiver of the defendant is a bare allegation without any basis that the plaintiff is a single witness and that her version should without more, be rejected.
Mr. Venter referred the court to the matter of Santam v Biddulph 2004 (5) SA 586 (SCA) where the court stated:
“The Court held that the test for a reliable witness was not whether a witness was truthful or reliable in all that he said, but whether on a balance of probabilities the essential features of the story, which he told, were true. The Court agreed that Mr Sigasa might not have been a satisfactory witness in all respects. However, the Court was very critical of the trial court in its rejection of Mr Sigasa’s evidence on the basis of his veracity as opposed to the reliability of his evidence. The Court drew attention to the limited value of a finding on demeanour where evidence had been given through an interpreter and warned that the importance of demeanour as a factor in the overall assessment of evidence should not be over-estimated.”
C. ASSESSING THE QUANTUM OF DAMAGES
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