Xaba and another v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Morgan AJ |
| Judgment Date | 31 August 2023 |
| Docket Number | 788/2021 |
| Hearing Date | 23 August 2023 |
| Court | North West Division, Mahikeng |
Morgan AJ:
INTRODUCTION
Before me is a narrow issue for determination, particularly the quantum of damages suffered by the plaintiffs due to their unlawful arrest, detention, and assault by members of the South African Police Services (police officers) before their arrest and during their brief incarceration at the Itsoseng Police Station, North West Province between 23h00 and 02h00 in the late night of 3 October 2020 and early morning of 4 October 2020.
This matter came before me on trial for the determination of quantum arising from delictual damages suffered by the Plaintiffs at the hands of police officers when they were arrested, assaulted, and detained.
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BRIEF OVERVIEW OF THE FACTS
The First and Second Plaintiffs are adult males who were eighteen and twenty-two years old, respectively, at the time of the incident.
On 3 October 2022 at about 23h00, the Plaintiffs and their friends, travelled in a Toyota Quantum combi from a friend’s birthday celebration. They were followed and stopped by a police vehicle at Itsoseng Township while travelling back to Boikhutso Township.
Upon being stopped, they were instructed to come out of the vehicle and lie on the ground. The police officers then violently searched the Plaintiffs and their friends’ whilst kicking them around. The officers asked them to produce a girl they alleged was kidnapped and hand over a firearm they alleged the Plaintiffs had stolen.
The police officers, unhappy with their response, arrested and escorted them into the police van, which took them to the Itoseng Police Station, where they were further detained and assaulted until their release in the early hours of 4 October 2020. They were detained and released without being arraigned or brought before a court of law.
It also transpired that the girl they alleged was kidnapped happened to be the First Plaintiff’s girlfriend, who they picked up that evening from a local tavern on their way back home. Further, that the police officers, after searching the combi they were travelling in, did not find any firearm they alleged the Plaintiffs stole and possessed.
After their release, the Plaintiffs instituted a delictual claim for damages against the Minister of Police.
The first plaintiff claimed a total amount of R 826 078.70 (Eight hundred and twenty-six thousand and seventy-eight rand and seventy cents) for damages made up as
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follows:
R200 000 (two hundred thousand rands) for unlawful arrest, detention and assault (general damages);
R301 800 (three hundred and one thousand eight hundred Rands) for future medical expenses; and
R326 078.70 (three hundred and twenty-six thousand and seventy-eight Rands and seventy cents) for past and future loss of earnings.
The second plaintiff claimed a total amount of R290 000 (two hundred and ninety thousand) for damages made up as follows:
R200 000 (two hundred thousand rands) for unlawful arrest, detention, and assault (general damages); and
R90,000 (ninety thousand rands) for future medical expenses.
LEGAL PROCEEDINGS
On 30 January 2023 before Mfenyana AJ (as she then was), the defendant conceded to 100% liability of proven damages regarding the unlawful arrest, detention and assault of the plaintiffs referred to above.
EVIDENCE PRESENTED BY THE PLAINTIFFS
Ms Moagi for the plaintiffs, called the plaintiffs to testify on the quantum of the general damages claimed and further submitted various expert reports accompanied by confirmatory affidavits to justify the quantum of damages for medical expenses and loss of earnings.
The first plaintiff’s testimony and expert evidence
The first plaintiff testified on the events that transpired on 3 October 2020 and
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4 October 2020. He further testified on the injuries he had sustained due to the assault.
Further, he testified to the events that led to the arrest, detention and release from police custody in the early hours of 4 October 2020. He further testified on the doctors and experts he consulted due to the injuries he sustained and the fact that since his assault he lost hearing in one of his ears.
This was evident before me as even when he was testifying from the witness box, he struggled to hear counsel’s questions in examination-in-chief, cross-examination and re-examination. Further, he found it difficult to hear me in certain instances, without raising my voice beyond my normal tone to hear me from where I was sitting.
The hospital records at Thusong General Hospital indicate that upon his admission soon after the incident occurred, he presented a red eye on the left side and bruises on his face, bruises on the body, leg injury and pain on the right ear. In corroboration, a picture taken on the day was discovered in the trial bundle. Further, what one could see from the picture, was his white jersey filled with blood.
Dr Makgafola, the Ear, Nose and Throat specialist’s report diagnosis includes right ear severe to profound mixed hearing loss. He recommended CROS hearing aids which he believes the first plaintiff will benefit from. The costs of the hearing aids are R61 560 which must be replaced every five years.
Ms Mqhayi, the clinical psychologist’s report provides that the first plaintiff’s hearing difficulties limit his social interactions. That he also suffers symptoms of moderate Post Traumatic Stress Disorder (PTSD) symptoms with comorbid moderate anxiety and mild depression which are attributable to the incident. His emotional well-being has been negatively affected. His physical impairments, hearing difficulties and emotional difficulties have limited his enjoyment of life and social functioning. Personality changes will have a negative influence on his personal and work
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relationships should he secure employment.
On the future medical expenses claimed, Ms S Mphofela, the Occupational Therapist’s report provides computations that add up to the total claimed for first plaintiff’s medical expenses and include the cost of the hearing aids, psycho therapy sessions and travelling costs.
On his future earning capacity, she states that the cognitive and emotional difficulties linked to his ongoing ear pain, may negatively affect his general functioning and motivation and therefore his work pace cover productivity efficiency in any setting if not adequately managed. Further that, his depression moods and PTSD will negatively affect his interpersonal relationships with people (employers, employees and colleagues) should it not be attended. He also presented with impaired concentration as per finding by the clinical psychologist, due to the injuries sustained.
Mr. T Kalanko, the Industrial Psychologist report gave two employment scenarios pre (had the incident not occurred) and post morbid (status quo after...
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