Motsomi v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Reid J |
| Judgment Date | 19 September 2023 |
| Citation | 2023 JDR 3600 (NWM) |
| Hearing Date | 26 July 2023 |
| Docket Number | 153/2019 |
| Court | North West Division, Mahikeng |
Reid J:
Introduction:
The plaintiff claims an amount of R500,000.00 (Five Hundred Thousand Rand) for damages suffered as result of an unlawful arrest and detention. The claim of damages suffered is for pain, suffering, discomfort and
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embarrassment, loss of amenities of life, contumelia and deprivation of the plaintiff’s freedom.
It is recorded in the pre-trial minutes that condonation for the late institution of proceedings in terms of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 have been granted. Merits have been conceded by the defendant as recorded in the court order dated 14 November 2022.
Adv JC van Eeden appears on behalf of the plaintiff and Adv B Riley appears on behalf of the defendant.
The following issues are to be determined by this court:
The amount of damages that the plaintiff is entitled to;
From which date the interest on the abovementioned amount should be calculated; and
On what scale costs should be paid.
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The parties agreed to present a stated case in terms of Rule 33(6) of the Uniform Rules of Court, which determines that “if the question in dispute is one of law and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence.”
The following facts were recorded as common cause between the parties:
The plaintiff was arrested on 21 November 2016 at approximately 15h00 without a warrant of arrest.
The plaintiff was detained at the holding cells of the Wolmaranstad Police Station from the date of arrest to 6 December 2016.
The plaintiff was imprisoned for a total period of sixteen (16) days.
The defendant concedes that the arrest and detention of the plaintiff was unlawful.
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The defendant concedes that the conditions of the plaintiff was “unfavourable” and “unhygienic”.
The court was not favoured with any more information than that provided as stipulated in paragraph [4] above. In order to be in a position to properly exercise my judicial discretion, I take into cognisance the following common cause facts which I derived from the pleadings:
The plaintiff is a male person with ID number 890412 5719 083 and residing at House 1423, Extention 10, Tswelelang Location, Wolmaranstad. The plaintiff was 27 years of age at the time of the arrest;
The circumstances in relation to the arrest are set out in the defendant’s plea as follows:
It is specifically pleaded that the Complainant identified the Plaintiff as one of the accused who took part in her assault and pointed him out to the arresting officer.
The plaintiff (according to the complainant)
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committed the alleged assault on the complainant together with one Mr X (name omitted for privacy reasons). Complainant alleged that she was stabbed several times with a knife. Upon the investigation of the arresting officer, Mr X and prior to his arrest, informed the arresting officer that he knows the Complainant and did not deny in taking part in her assault.
Upon investigation into the plaintiff, plaintiff informed the arresting officer that he has a previous conviction of housebreaking and one pending criminal case of attempted murder. However, upon further investigation, it became apparent that the plaintiff had already been found guilty of attempted murder and such case was not pending.
Collectively, the information assisted the arresting officer in using his discretion to arrest the plaintiff, in order to take him to court. The plaintiff was so taken within the prescribed 48 hours.”
The plaintiff was detained at the South African Police Service (SAPS) cells for the duration of his arrest and was released on 6 December 2016 on bail in the amount of R800.00 (Eight Hundred Rand).
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The plaintiff was taken to court for his first appearance on 23 November 2016, which period is within the legislatively prescribed 48 hours.
The court has not been favoured with any of the following information, which has an impact on the exercise of the court’s discretion. These circumstances are normally taken into account with the exercise of the judicial discretion in determining a just and fair quantum of the unlawful arrest. These absent factors were:
The circumstances under which the arrest took place – whether it was in public, at home, etc;
The prevailing circumstances after the arrest;
The plaintiff’s standing in the community;
Whether the plaintiff was detained alone or with other inmates;
Whether the plaintiff had communication with his lawyer and/or family members, etc;
What the conditions of the police holding cells were, save for it being unfavourable and unhygienic;
In what manner the police holding cells were
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unfavourable and unhygienic;
Whether the plaintiff received food to eat; and
What the sleeping conditions were.
The court does not make any negative inference of the absence of the above factors. I include it in this judgment to illustrate the factors that a court would normally consider, and that I am bound to exercise judicial discretion with the scanty available information before me. The absent factors as mentioned in paragraph [8] above, are of no consideration in casu and are deemed to be “neutral” factors.
Quantum
In Motladile v Minister of Police 2023 (2) SACR 274 (SCA) the Supreme Court of Appeal (SCA), on appeal from this Division, criticised the impression created that unlawful arrest matters can be uniformly quantified by calculation of an amount of approximately Fifteen Thousand Rand (R15,000.00) per day. The SCA unanimously found that any attempt to “unify” calculation of quantum through a process that the SCA dubbed as a “one size fits all approach” is not in the interest of justice.
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The criticism has been encapsulated as follows in the Motladile matter:
At the outset of the appeal, and in the heads of argument, the respondent conceded that the damages the High Court awarded to the appellant are so disproportionately low, that this court can infer that the High Court did not exercise its discretion properly. The High Court found that, having regard to the facts and circumstances of the case, an adequate award would be an amount of R15 000 per day, which amounts to R60 000 for the four days that the appellant spent in detention. In adopting the amount of R15 000 per day, the High Court followed a practice that has developed in the North West Division of the High Court, Mahikeng (North West Division), of applying a ‘one size fits all’ approach of R15 000 per day to damages claims for unlawful arrest and detention. This practice is conveniently described in Mocumi v Minister of Police and Another. That matter concerned a 28-year-old plaintiff, who was arrested and detained for three days under appalling conditions. The court awarded him damages in the amount of R45 000, calculated at R15 000 per day. The court observed as follows in relation to the practice of the North West Division ‘to strive for similarity’ in awarding damages for unlawful arrest and detention:
‘In Ngwenya v Minister of Police (924/2016) [2019] 3 ZANWHC 3 (7 February 2019) this Court awarded R15 000.00 per day for unlawful arrest and detention. The same amount was awarded in the matter of Gulane v Minister of Police, CIV APP MG 21/2019, in an appeal which emanated from the Magistrate Court, Potchefstroom and decided by Petersen J et Gura J. Petersen J et Gura J did also in the matter of Matshe v Minister of Police, case number CIV APP RC 10/2020,
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likewise, award an amount of R15 000.00 per day for each of the two days that the appellant was detained.
. . .
Much as there are also different amounts awarded by this Court as compensation or solatium, there is of late an attempt to strive for similarity or conformity. Each case must however be decided on its own facts, merits, and circumstances. The examples quoted above in the case of Ngwenya v Minister of Police, Gulane v Minister of Police and Matshe v Minister of Police underscore this. R15 000.00 per day, is a reasonable amount to be awarded.’
This practice was also followed in Tobase v Minister of Police and Another, which concerned a 30-year-old man who was unlawfully arrested at his place of employment and detained for three days. The North West Division, sitting as a court of appeal, awarded him damages calculated at R15 000 per day, amounting to R45 000. In Nnabuihe v Minister of Police, also a decision of the North West Division, the plaintiff was arrested and detained from Friday 12 April 2019 at about 12h40 and released on Monday 15 April 2019 without having appeared in court. The plaintiff was assaulted by the police and the inmates. He was squeezed into a cell with one toilet. The inmates shared a single sponge mattress. The plaintiff never took a bath for the duration of his incarceration, nor did he eat. The court awarded an amount of R50 000, which appears to be commensurate with the practice of the North West Division.
What is plain from the High Court’s judgment, in the present matter, is that it followed the trend in the North West Division to award an amount of R15 000 a day for damages suffered as a result of an unlawful arrest and detention. The High Court cited comparable case law of other divisions of the High Court, where the compensation awarded was commensurate with the harm suffered by the respective plaintiffs due to their unlawful arrest
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