Ncoyo v Commissioner of Police, Ciskei and Others

• Jurisdiction: South Africa
• Judge: Skweyiya AJ
• Judgment Date: 29 April 1996
• Citation: 1998 (1) SA 128 (CkS)
• Docket Number: 89/86
• Hearing Date: 12 May 1995
• Counsel: R P Quinn for the plaintiff J Eksteen for the defendants
• Court: Ciskei Supreme Court

Skweyiya A J:

On 11 December 1984 the plaintiff was arrested by three members of the F erstwhile Ciskeian Security Police in terms of the drastic and draconian provisions of s 26 of the National Security Act 13 of 1982 (Ck) which conferred special and unusual powers on police officers to cause the arrest and detention of anyone being suspected and believed to be a 'terrorist' for indefinite periods of time. The plaintiff was initially detained at the Mdantsane G Police Cells for approximately two weeks and was thereafter transferred to the Middledrift Prison where he was kept as a s 26 detainee until his release on bail on 4 September 1985 after charges of high treason, terrorism and other offences were preferred against him and seven others in the Supreme Court at Bisho. He stood trial in the General Division of the H Supreme Court of the Republic of Ciskei and was acquitted of all charges on 15 November 1985.

At the time of his arrest the plaintiff was employed as a warder at the Middledrift Prison and held the rank of Sergeant.

It is relevant at this point to note that a few days after the plaintiff's arrest (on 17 December I 1994) the Commanding Officer of the Ciskei Central Prison, a Major Silandela, wrote a letter to the plaintiff which was served on him whilst still detained in prison. The contents of the letter read as follows:

'1.

You are hereby informed that your suspension from duty with effect from 12 December 1984, pending the investigation and trial is hereby confirmed.

2.

You are further informed that the powers, authorities and functions vested in you by virtue of your office, are in abeyance and you shall not wear any J

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uniform of your rank. You nevertheless continue to be subject to the discipline and penalties of A a member of the Prisons Service as if you have not been suspended from duty.'

(My emphasis.)

It is obvious that in suspending the plaintiff and attaching the conditions that he did to such B suspension Major Silandela acted in terms of s 58(1) and (2) of the Prisons Act 36 of 1983 (Ck) the relevant terms of which provide that:

'58(1) A member of the Prisons Service may be suspended from duty . . . and shall be so suspended for any period during which he is under arrest or detention or is serving a term of imprisonment but shall not, by reason of such suspension, cease to be a member of the Prisons Service. C

(2) During the suspension from duty of a member of the Prisons Service the powers, authorities and functions vested in him by virtue of his office shall be in abeyance and he shall not wear the uniform of his rank, but he shall nevertheless continue to be subject to the discipline and penalties of a member of the Prisons Service as if he had not been suspended from duty.' D

Subsequent to his discharge in the trial referred to above:

(i)

a disciplinary enquiry was held in terms of s 37(1)(a) of Schedule 4 to the Prisons Act 36 of 1983 (Ck), after which the plaintiff was dismissed as an employee of the Prisons Service of the Ciskei. I shall revert later in this judgment to the circumstances leading to the enquiry and the other relevant E details of such enquiry; and thereafter,

(ii)

the plaintiff instituted an action for damages against the Commissioner of Police in his representative capacity of the Government of the Republic of Ciskei in F terms of s 48(4) of Act 32 of 1983 (Ck) as well as the three Security Policemen who were responsible for his arrest and detention. The total amount of damages claimed is R392 000.

In his particulars of claim the plaintiff alleged that he suffered the said damages by reason of having been wrongfully and unlawfully arrested, detained and imprisoned by or at the instance of the second, third and fourth defendants; he further alleged that the second, third and fourth G defendants wrongfully and maliciously set the law in motion against him without reasonable or probable cause by laying false charges against him, as a result of which his good name and reputation were impaired. He further alleged that he was deprived of his personal liberty, lost H his employment and thus suffered general damages and loss of earnings both during the period of his detention and also after his dismissal from the Prisons Service, subsequent to the said enquiry.

At the commencement of the trial the plaintiff's counsel handed into Court the minute of a I conference held by the parties' legal representatives in terms of Rule 37 of the Uniform Rules of Court. Counsel also advised me that the defendants had conceded to being liable for damages in respect of the claim by the plaintiff for the aforesaid wrongful and unlawful arrest and malicious proceedings and that the quantum of damages was agreed at an amount of R125 000. I made an order for the payment of this amount by the defendants to plaintiff at that stage of the J

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trial at the request of the parties and the question of costs was left for determination at the A conclusion of the whole case.

After I made the said order for the payment of the amount of R125 000 by the defendants to the plaintiff, I was advised by counsel that the only issue which remained unresolved between B the parties was whether the defendants were liable for loss of earnings which the plaintiff alleged was as a direct result of his wrongful arrest and detention and subsequent prosecution and, if so, the quantum of damages for such loss.

The parties agreed that there should be a separation of issues on the unresolved aspect in terms of Rule 33(4) and that I should only deal with the question of liability, as they were confident C that, in the event of my finding that the defendants are liable for the plaintiff's loss of earnings, they would be able to settle the question of quantum. When I sought clarity from counsel as to whether the alleged loss of earnings by the plaintiff included the period before his dismissal from his employment by the Ciskeian Prisons Service, I was advised by them that the loss involved D only the period after dismissal and that any loss of wages suffered by the plaintiff before dismissal was included in the aforesaid agreed sum of R125 000 in respect of which I had already made an order.

The unresolved issue which remained between the parties concerned the question of whether the loss of earnings which the plaintiff allegedly suffered after his dismissal as a warder in the E Prisons Service of the Ciskei, subsequent to the said disciplinary proceedings brought against him in terms of s 37(1)(a) of Schedule 4 to the Prisons Act (Ck), was as a result of the admitted wrongful arrest and subsequent detention of the plaintiff. If it was, so the plaintiff's counsel submitted, the defendants would then be liable for loss of earnings by the plaintiff after F his dismissal as a prison warder. The issue therefore is one involving the complex question of causation.

The evidence adduced on behalf of the plaintiff in support of his case on the said unresolved issue was that of the following witnesses:

(a)

Lieutenant Colonel Olivier who was appointed by the Commissioner of Prisons of Ciskei to act as the presiding officer at the said enquiry in terms of s 37. He was a G seconded official from the Republic of South Africa Prisons Service to the Ciskeian Prisons Service at the time of the enquiry;

(b)

the plaintiff;

(c)

General Silandela who was at the time the Commissioner of Prisons in the former H Republic of Ciskei; and

(d)

Colonel Pete, who was on secondment from the Republic of South Africa to the Ciskei Prisons Service as an adviser to the Commissioner of the then Ciskei Prisons Service.

Before calling any of the above...