Minister of Correctional Services v Tobani

• Jurisdiction: South Africa
• Judge: Jones J, Leach J and Govender AJ
• Judgment Date: 06 November 2000
• Citation: 2003 (5) SA 126 (E)
• Docket Number: 216/2000
• Hearing Date: 30 October 2000
• Counsel: R P van Rooyen SC for the appellant. P Dauberman (attorney) for the respondent.
• Court: Eastern Cape Division

Jones J:

This is an appeal, with leave from the Court a quo (reported as Tobani v Minister of A Correctional Services NO [2000] 2 B All SA 318 (SE)) against an award of damages of R50 000 for unlawful detention.

It is common cause that the respondent was detained at the St Alban's Prison, Port Elizabeth as an awaiting-trial prisoner from 23 March 1998 until 28 July 1998 when the charge against him was withdrawn. He was not released until 17 February 1999. He alleges that he was unlawfully detained in the prison from 28 July B 1998 until his release, which is a period of 203 days. Froneman J upheld his claim and awarded him damages. In making the award the learned Judge remarked that

'(t)he plaintiff's claim is for "compensation . . . for . . . non-patrimonial loss in the form of, for example, insult, indignity and suffering caused by the wrongful act" (Whittaker C v Roos and Bateman 1912 AD 92 at 123). There is no basic formula for an assessment of this kind of damages. Both objective and subjective factors may be taken into account. In the present case the importance of the right to physical liberty and the duration and nature of the deprivation must be given due weight, tempered by the plaintiff's own role in not taking all reasonable steps to alert the authorities of his plight earlier. I consider an appropriate award to be R50 000.' D

(At 326d - e.)

The appeal is on the merits only. There is no cross appeal against the finding that the award fell to be reduced by 'the plaintiff's own role in not taking all reasonable steps to alert the authorities of his plight earlier'. I mention this because Mr Dauberman argued on behalf E of the respondent (plaintiff below) that this finding was wrong, but not with a view to getting an increased award. That issue is not before us on appeal.

The respondent was put into the Medium A prison at St Alban's, which houses awaiting-trial prisoners only. The warrant for his detention was filed in the prison reception office, and the particulars it contained were entered into the computer together with the date of F his next appearance in court. In order to identify a prisoner, the procedure is for his thumbprints to be placed on the warrant, one set being taken at court, a second set on admission to prison and a third set when he goes back to court from prison. When a prisoner is first admitted a card is issued to him which gives his particulars and the G date of his next appearance. He is then kept in the cells with other awaiting-trial prisoners until his next appearance at court. The procedure for taking prisoners to court is set out in some detail in the evidence. The day before they are to appear in court the prison official responsible for the arrangements extracts from his computer a H list of all prisoners in his prison who are to be taken to court in the Port Elizabeth area the next day. All the cells are visited by him, assisted by two prisoners. The names of prisoners who have to go to court are called out, and when they come forward they are checked off the list, separated from the other prisoners and kept overnight in two holding cells. A handwritten list is made of the prisoners who do not I come forward when their names are called. The official then returns to each cell and again calls out the names of the missing prisoners. If there are still missing prisoners, their names are broadcast that evening over the prison intercom system which has loudspeakers in each cell, and their names are called again the next J

Jones J

morning on another visit to each cell. The thumbprints of each prisoner who goes to court A are placed on his warrant and he and his warrant are handed over to the police officials who accept responsibility for him and transport him to court. Prisoners on the list who have by then not come forward cannot be taken to court. Their warrants remain in the prison files. The prison authorities attempt to find them by placing their names on a B special list of prisoners who fail to go to court on their appointed date, and by calling out these names in the cells on a regular basis. Prison officials sometimes also resort to trickery, for example by calling out their names on the pretext that they have a visitor or that a prisoner has been granted bail. This is necessary, according to the evidence, because some prisoners deliberately fail to come forward in answer to their names being called, and deliberately avoid being taken C to court. Prison officials suggest a variety of possible reasons why they do so; their non-appearance at court may result in the withdrawal of the charge against them; they may consider themselves materially better off in prison; they may be intimidated into doing so by members of a prison gang. Evidence was given that if a prisoner deliberately D does not come forward and if he avoids attempts at trickery it is possible for him to remain undetected and unidentified in the prison until he chooses to make his whereabouts known to the authorities. If a prisoner complains that he has missed a court appearance, the matter is investigated immediately, usually by taking up the matter with a court official. E

It is accepted by the appellant that he was not in possession of a warrant or other lawful justification for the respondent's detention in St Alban's Prison for the period 28 July 1998 to 17 February 1999. The evidence is that the respondent was supposed to be taken to court on 28 July 1998. In accordance with normal procedure his name was called out the previous day in the cells F and over the intercom, and again on the morning of 28 July 1998. The respondent did not respond with the result that he was not among the prisoners taken to court on 28 July 1998. His case was dealt with in his absence but his attorney was present. The charge against him was withdrawn. This was not brought to the attention of the prison authorities. There was, indeed, no communication between the G court officials and the prison officials about what was to happen to the respondent. The prison officials followed their normal practice of placing his name on the list of prisoners who were not taken to court because they did not respond to the roll call. The names on this list, including the respondent's name, were then called out once a month. The respondent did not respond to the monthly roll call H either. In February 1999 he complained to a prison warder by the name of Ntsili that he should have been taken to court in July 1998. At about that time he also telephoned his attorney. The prison authorities investigated the position and he was released forthwith.

Mr Van Rooyen has argued on behalf of the appellant that the absence of lawful authority to detain the respondent beyond I 28 July 1999 is of no consequence. If I may summarise his heads, he submits that the appellant had no desire whatsoever to 'detain' the respondent. All his endeavours were aimed at dealing lawfully with the respondent by timeously advising him of his upcoming trial date, requesting him to J

Jones J

come forward to attend his trial and putting in place the necessary arrangements to hand him over to the police for A transportation to court where he would have been dealt with in the ordinary course. Had he come forward he would simply have been released from police custody on 28 July 1998. Mr Van Rooyen argues further that the respondent was not detained against his will. To constitute the breach of a fundamental right found by the Judge a quo, the organ of State must do something which is B not in accordance with law and which is against the will of the subject. On the facts, the respondent's case cannot be believed that he wished to be taken to court, to be dealt with there and to be released in due course, but was prevented from doing so. The only inference from all the facts, so the appellant's argument goes, is that for reasons known only to himself the respondent decided of C his own free will to secrete himself amongst the throng of prisoners in the overcrowded St...