Mathe v Minister of Police

• Jurisdiction: South Africa
• Citation: 2017 (2) SACR 211 (GJ)

Mathe v Minister of Police
2017 (2) SACR 211 (GJ)

2017 (2) SACR p211

Citation	2017 (2) SACR 211 (GJ)
Case No	33740/14
Court	Gauteng Local Division, Johannesburg
Judge	Opperman J
Heard	May 3, 2017
Judgment	May 24, 2017
Counsel	L du Bruyn for the plaintiff.; Adv Liphoto for the defendant.

Flynote : Sleutelwoorde G

Damages — Measure of — For unlawful arrest and detention — Plaintiff unlawfully arrested and detained for 37 hours before release at court after charge of prostitution dismissed — Arrest taking place whilst waiting for taxi with her two friends after having had meal at restaurant — Conditions in cell where she was detained inhumane, stigmatised as result of nature of charge and lost job — Damages of R120 000 awarded. H

Headnote : Kopnota

The plaintiff instituted action against the defendant for damages for an alleged unlawful arrest and detention. The claim arose from an incident that occurred late one Monday evening when the plaintiff, a 31-year-old mother of two children, left a restaurant in the company of two of her female friends I and, after finding that a nightclub that they wished to attend was closed, they decided to go home. They then proceeded to a nearby filling station where they sat on chairs outside waiting for a taxi to arrive. After about 10 minutes an unmarked vehicle pulled up next to them and two men alighted and questioned them as to what they were doing there. They responded that they were waiting for a taxi, whereupon the one man asked whether they took him for a fool. They were told that they were being J

2017 (2) SACR p212

arrested A and the man ordered them into the vehicle, without informing them of the charge against them, although he did identify himself as a policeman.

They were taken to the holding cells at the nearby police station. After some time the police arrived and told them that they were being charged with prostitution. The cell into which they were placed was filthy, had a toilet which was not functioning, and there was no toilet paper. There was one tap B but it had no water. There were dirty blankets on the floor and, because of the excrement in the toilet, the smell inside the cell was unbearable.

The plaintiff, the only one of the three women who instituted action, testified that she had not been permitted to make a telephone call, despite her being anxious as to the fate of her sickly mother and her children. At 07h00 on the Wednesday morning she was handed a document which reflected that she C had been arrested for prostitution. She was then taken to the magistrates' court where she was released at 15h00 in the afternoon, after having been detained for approximately 37 hours. She further testified that the case was important to her because when she arrived home, some young men said to her that they heard that she had been out selling her body and wanted to know what her fee was. She said that she had suffered shock, psychological D trauma, emotional shock and contumelia.

The defendant admitted that the arrest and detention were unlawful and the court was only called upon to determine the quantum of general damages and the scale of costs.

Held, the police had abused the power entrusted to them and had not even taken the basic step of identifying themselves before starting their interrogation of E the women. They had not explained the plaintiff's constitutional rights to her until the Wednesday morning, and had conducted themselves in a high-handed manner. The plaintiff had also been subjected to prejudices which were exclusively based on gender. She had not only been detained under inhumane conditions, but had also lost her employment and been stigmatised as a result of the nature of the offence which she was alleged to F have committed (see [32], [36] and [39]).

Held, further, that, having regard to the facts as a whole, past awards and the relevant case law, a fair and reasonable amount for the damages to be awarded to the plaintiff was the amount of R120 000 (see [40]). Costs were awarded on the High Court scale.

Cases cited G

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dictum in para [138] applied

Black v Minister of Police GJ 38093/2011: compared

Botha v African Bitumen Emulsion (Pty) Ltd 1960 (2) SA 6 (T): considered

Filta-Matix H (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) ([1998] 1 All SA 239): dictum at 614B – C applied

Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 (C): referred to

Keitumetsi Letlalo v Minister of Police GJ 28575/12: compared

Liu Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W): considered

Louw I and Another v Minister of Safety and Security and Others 2006 (2) SACR 178 (T): compared

Mandleni v Minister of Police GJ 37539/14: approved

Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A): considered

Minister of Police and Another v Du Plessis 2014 (1) SACR 217 (SCA) J ([2013] ZASCA 119): considered

2017 (2) SACR p213

Minister of Safety and Security and Another v Swart 2012 (2) SACR 226 (SCA): A considered

Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA) ([2007] 1 All SA 558): considered

Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA): dicta in para [26] applied

Mothoa v Minister of Police GJ 5056/11: compared B

Mvu v Minister of Safety and Security and Another 2009 (2) SACR 291 (GSJ) (2009 (6) SA 82): applied

National Commissioner of Police and Another v Coetzee 2013 (1) SACR 358 (SCA): considered

Norwich Union Fire Insurance Society Ltd v Tutt 1960 (4) SA 851 (A): dictum at 854D applied C

Ntshingana v Minister of Safety and Security ECG 1639/2001: applied

Olivier v Minister of Safety and Security and Another 2008 (2) SACR 387 (W) (2009 (3) SA 434): referred to

Phasha v Minister of Police GJ 25524/2011: applied

R and Others v Minister of Police [2016] ZAGPPHC 264: compared

Rudolph and Others v Minister of Safety and Security and Another 2009 (2) SACR 271 (SCA) D (2009 (5) SA 94; [2009] 3 All SA 323): referred to

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): considered

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): considered

S v Williams and Others 1995 (2) SACR 251 (CC) (1995 (3) SA 632; E 1995 (7) BCLR 861; [1995] ZACC 6): considered

Seleka v Road Accident Fund 2016 (4) SA 445 (GP): dictum in paras [31] – [32] applied

Seria v Minister of Safety and Security 2005 (5) SA 130 (C) ([2005] 2 All SA 614): compared

Van Rensburg v City of Johannesburg 2009 (2) SA 101 (W): compared F

Vermaak v Road Accident Fund [2006] ZAECH 10: considered

Woji v Minister of Police 2015 (1) SACR 409 (SCA) ([2014] ZASCA 108): considered

Zealand v Minister of Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) (2008 (4) SA 458; 2008 (6) BCLR 601): referred to. G

Case Information

L du Bruyn for the plaintiff.

Adv Liphoto for the defendant.

An action for damages for unlawful arrest and detention. H

Order

1.

Payment of the sum of R120 000.

2.

Interest thereon at the rate of 9% per annum from 14 days after date of service of the summons until date of payment.

3.

Costs of suit. I

Judgment

Opperman J:

Introduction

[1] This is an action for damages consequent upon an unlawful arrest and detention. The defendant has admitted that the arrest and detention J

2017 (2) SACR p214

Opperman J

were A unlawful and this court is called upon to determine:

[1.1]

The quantum of general damages to be awarded to the plaintiff; and

[1.2]

the scale of the costs to be awarded to the plaintiff.

[2] The following facts are common cause:

[2.1]

B Plaintiff was unlawfully arrested by police officials on 18 February 2014 on a charge of prostitution;

[2.2]

plaintiff was unlawfully detained in police custody in detention cells at Sandton Police Station from 18 February 2014 to 19 February 2014;

[2.3]

at the time of the arrest and detention, all relevant police officials C acted within the course and scope of their employment with the South African Police Service (SAPS); and

[2.4]

the plaintiff complied with s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.

[3] Only the plaintiff testified.

Evidence D of Ms Mathe

[4] Ms Mathe was born on [. . .] June 1982. At the time of her arrest she was 31 years of age and had resided at her maternal home at [. . .], White City, Jabavu, Soweto, most of her life. She was employed as an assistant E manager at Movie Fanatics in Alberton.

[5] At the time of her arrest she was married. She has two children who, during February of 2014, were 4 and 13 years old, respectively, and living with her at her mother's home. Her husband was not residing with them, nor was he contributing towards their maintenance. Ms Mathe F was the sole financial provider for herself, her two children, her mother and her younger brother.

[6] She did not work on Monday 17 February 2014, as it was her day off. That evening she and two of her friends decided to go out to Mandela Square in Sandton City. They had supper at a restaurant, took some G photos and then, at about 23h00, decided to go to a nightclub called Cocoon, which is approximately 500 metres from Mandela Square. Upon arrival a security guard told them that the nightclub was closed on Monday evenings. They established from him that they could catch taxis at either the BP garage or the Shell garage, both garages being very close to the nightclub. They walked to the BP garage, which was about H 500 metres from Cocoon nightclub. The taxis there were too expensive and they then walked another...