Lekala and another v Member of the Executive Council of Department of Community Safety and Transport Management and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mongale AJ
• Judgment Date: 25 May 2023
• Docket Number: 1037/2017
• Hearing Date: 05 October 2022
• Court: North West High Court, Mafikeng

Mongale AJ:

INTRODUCTION:

[1]

What appears before me is a trial on quantum for the Court to determine the appropriate amount to compensate the first plaintiff with for the damages suffered emanating from his unlawful detention.

[2]

The trial on determination of liability was heard by Chwaro AJ in April 2019 wherein he upheld the special plea raised by the defendants against the claim of the second plaintiff and dismissed the rest of the first plaintiff's clam, except the unlawful detention suffered by the first plaintiff at Mmabatho police station on 25 May 2014 until his release on 26 May 2014.

[3]

At the quantum stage of trial, it is the first plaintiff who must prove his damages arising from his unlawful detention and also satisfying this Court of the length of the period of his detention, for this Court to arrive at the appropriate amount that the first plaintiff needs to be compensated for.

SUBMISSION BY THE FIRST PLAINTIFF:

[4]

At the beginning of this trial, the plaintiff's counsel, Ms Zwiegelaar indicated that, instead of leading evidence of the first plaintiff to

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prove his damages, both Counsel agreed to rather refer this Court, when making their submissions on quantum, to relevant parts of the evidence from the record that was led during trial on quantum.

[5]

Ms Zwiegelaar referred this Court to the plaintiff's particulars of claim from page 15 to page 26 with specific reference to page 16 and 26, where it is alleged that the plaintiff was stopped by the traffic officer at 15h00 on 25 May 2014, taken to the Mmabatho police station where he was arrested and released from custody the following day on Monday 26 May 2014 at 10h00. According to Ms Zwiegelaar the plaintiff was detained for a period of 19 hours before he was released.

[6]

Regarding the first plaintiff's personal circumstances, this Court was referred to pages 15 to 31 of the transcribed record. In brief the first plaintiff's personal circumstances can be summarised as follows: That the first plaintiff was born in 1983, he has a Bachelor of Education, senior phase, obtained from the University of Limpopo. He started working in October 2009 as an educator on temporary basis, until he was permanently employed on 08th March 2012.

[7]

He is customarily married to the second plaintiff and together they have two children. His wife is employed as a police officer, stationed at Madibogo police station. At the time of his arrest, he was in the company of his wife and their child, who was sick and they were coming from the doctor.

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[8]

Mr Moloto, one of the traffic officers who later arrived at the scene in a marked motor vehicle where the first plaintiff was stopped, drove away with the first plaintiff, after he manhandled the first plaintiff and without informing the first plaintiff where they were going. The first plaintiff was concerned and worried that something terrible was going to happen to him, due to the manner in which he was handled by Mr Moloto and was even scared to ask where they were going. The first plaintiff only became aware when they arrived at Mmabatho police station where he was taken to.

[9]

He was traumatised when they arrived at the police station as he didn't know what was going to happen to him. Whilst he was still inside the car, two male police officers came to him and told him that he was under arrest. They took him to the waiting cell and denied him the opportunity to call his attorney and his wife, because his wife did not know where he was taken to at the time he was transported from the scene. They made him to sign the 'document written detainees right' without the opportunity to first read it at 16h50.

[10]

The female officer told him that that night, he was going to sleep in a cell without food and without a blanket. This happened exactly as the female officer predicted because by the time the first plaintiff was in the waiting cell, people who served the prisoners with supper were already moving around with the trolley that carries food. The prisoners ate before he was taken to the cell. The toilet was not functioning well and there were no bedding and/or blankets despite that it was during winter.

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[11]

He was put in a cell which is 15 square metres in size and had about 20 to 25 inmates. In the evening after they were counted, some of the inmates started to smoke what smell like cannabis (dagga) and others were smoking cigarettes, despite the fact that there were not enough windows and no sufficient ventilation.

[12]

On 26 May 2014 upon his release, he was issued with a warning to appear in court on 27 May 2014, and the charge was eventually withdrawn against the first plaintiff.

[13]

Ms Zwiegelaar contends that the first plaintiff was not able to report for duty on 26 and 27 May 2014, and that although he received his full salary for the month of May he was forced to take paid leave, the effect of which is that the two days of forced leave has reduced the number of the first plaintiff's leave days.

[14]

He felt humiliated to have been arrested in the presence of his wife and his...