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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

APPEAL CASE NO: A3133/2017

COURT A QUO CASE NO: 9290/2015

DATE: 24^th april 2019

In the matter between:

MPALE: AUGUSTINE DIPUO N O, in his official capacity as

EXECUTOR IN THE ESTATE LATE:

MPALE, GEORGE RETHABILE                                                                             Appellant

and

THE MINISTER OF POLICE                                                                              Respondent

Coram: Adams J and Langa AJ

Heard: 23 April 2019

Delivered: 26 April 2019

Summary: Quantum of damages – unlawful arrest and detention – not a serious crime – conditions during detention –

Interference with factual findings of trial court – no assault

ORDER

On appeal from: The Boksburg Magistrates Court (Magistrate R D Mfulwane sitting as Court of first instance).

(1) The appellant’s application for the late noting of the appeal be and is hereby granted.

(2) The respondent’s application for the late filing of his written heads of argument be and is hereby granted.

(3) Each party shall bear her / his own cost relating to the applications for condonation. 

(4) The appellant’s appeal is dismissed.

(5) The appellant shall pay the respondent’s cost of this appeal.

JUDGMENT

Adams J (Langa AJ concurring):

[1]. The appellant, Mrs Augustine Dipuo Mpale, acts herein as the Executrix in the deceased estate of her late son, Rethabile George Mpale (‘the deceased’), who had sued the respondent, the Minister of Police, in the Boksburg Magistrates Court for damages for wrongful arrest and detention and assault. On the 28^th of July 2017 the Magistrates Court (Magistrate R D Mfulwane) held that the arrest and detention were unlawful and awarded the deceased R20 000 general damages. The Magistrates Court also found that the respondent was not liable for the deceased’s damages as a result of the alleged assault on his person during the arrest. The appellant appeals to this court against the latter finding and against the quantum awarded in favour of the deceased, alleging that the deceased ought to have been awarded damages way in excess of the R20 000.

[2]. As I indicated above, the Judgment of the Boksburg Magistrates Court was handed down on the 28^th of July 2017, the trial, including all of the evidence and the closing arguments, having been completed on the 25^th of May 2017. On the 30^th of June 2017, about a month before the judgment was handed down by Magistrate Mfulwane, the deceased, who was the plaintiff in the court a quo, passed away due to natural causes. Subsequently, the appellant reported the estate of her deceased son to the Master of this Court and she was appointed to administer the estate. This sequence of events is in the main the reason why the appellant did not file her notice of appeal, as she was required to do in terms of the rules of the Magistrates Court, within twenty days from the date of the judgment. In terms of Magistrates Court Rule 51(3) the appellant was required to note the appeal on or before the 25^th of August 2017. The notice of appeal was only filed on the 27^th of November 2017, some three months out of time, and it was therefore necessary for the appellant to apply for condonation of the late noting of the appeal.

[3]. The appellant’s application for the condonation of the late noting of the appeal was not opposed by the respondent, who himself applied for condonation of the late filing of his heads of argument. I do not intend dwelling too long on these applications for condonation, suffice to state that in our view the explanations given by the parties for their non – compliance with the rules of Court, are reasonable and acceptable to us. The appellant, as I indicated supra, was required to have herself appointed as administrator of the estate of the deceased and to thereafter have herself substituted in the stead and place of her deceased son as a party to these legal proceedings. It is therefore understandable that, despite her efforts and those of her legal representatives, she would not have been able to note the appeal within twenty days from the date of the judgment of Magistrate Mfulwane.

[4]. The explanation by the State Attorney for the delay in filing the respondent’s heads of argument relates to the fact that he was awaiting an instruction regarding the appeal. There were also certain structural changes in the office of the State Attorney, which played a part in the delay in briefing Counsel to argue the appeal on behalf of the State. Despite the fact that the explanation by the State Attorney’s office is a tad thin on the detail, we are nevertheless satisfied that same is reasonable and the explanation is therefore acceptable to us. In that regard, what weighs heavily on our minds is the fact the appellant has not suffered any prejudice as a result of the tardiness on the part of the respondent’s legal representatives.

[5]. Both the applications for condonation therefore should be granted.

[6]. The circumstances of the arrest of the deceased are as follows. At about midday on Wednesday, the 22^nd of January 2014, the arresting officer, Constable Mahlambe (‘Mahlambe’), was requested by his colleague to assist with the arrest of suspects in a car hijacking case. The complainant accompanied them to the house where he (the complainant) had apparently spotted the persons who had hijacked him. On their arrival at the house, they found the deceased and his friends smoking dagga in one of the backrooms on the property. Mahlambe thereupon advised the deceased and his friends that they were being arrested for possession and use of a prohibited substance. Mahlambe also observed the deceased limping at the time, and upon enquiring from him as to the reason, the deceased informed him that members of the community had assaulted him as they had accused him of being involved in the hijacking. At some point, according to Mahlambe’s evidence, they were joined by members of the Johannesburg Metro Police, who informed them that the main suspect, a person called Spanera, was in the vicinity. Mahlambe and his colleague, the investigation officer in the car hijacking case, then tried to pursue and apprehend Spanera, leaving the Metro Police officers to guard and detain the deceased and his friends. Spanera however was able to evade arrest and fled when he was approached by Mahlambe.

[7]. Mahlambe then returned to the place where the deceased and his friends were held and completed the arrest. He thereafter removed them to the Vosloorus Police Station with the assistance of the Metro Police. Mahlambe denied that he and his colleague assaulted the suspects at any stage during the arrest. He also denied that the suspects were assaulted in his presence by members of the Metro Police. He reiterated that the deceased was injured as a result of being assaulted by members of the community, who accused the deceased and his friends of causing trouble in the area. The day after the arrest Mahlambe took the deceased and his cohorts to the Senior Public Prosecutor in Boksburg and he ‘counselled’ them on mending their ways. They admitted to the prosecutor that they had a problem with the abuse of dagga and drugs and they promised to seek help, whereafter the prosecutor released them from custody. This was at about 16:00 on Thursday, the 23^rd of January 2014, which means that the deceased was detained in total for a period of approximately 28 hours.   

[8]. The testimony of Mahlambe was corroborated in most of the material respects by one of the friends of the deceased, Mr Tsepo Mokwena (‘Mokwena’), who was in fact the person who occupied at the relevant time the backroom where they were found by Mahlambe and his colleague busy smoking dagga. This witness confirmed the fact that when the members of the SAPS arrived at the premises, they were busy smoking dagga. He stated that the police enquired about their involvement in the car hijacking incident, whereupon they denied any involvement in the car robbery case. His evidence however differed from that of Mahlambe in that he testified that they were assaulted by members of the Metro Police during the arrest. He was however adamant that the members of the SAPS did not assault the deceased. He was also adamant that when they were assaulted by the Metro Police the SAPS police officers were not present.

[9]. It was the case of the South African Police Service that the arrest and detention was lawful and justified if regard is had to the provisions of section 40(1)(a) of the Criminal Procedure Act, 51 of 1977 (‘the CPA’).

[10]. The deceased and two of his friends were arrested at about 13:00 on Wednesday, the 22^nd January 2014, and detained in a cell overnight. In his evidence in the court a quo, the deceased himself described the cell in which they were detained as ‘a dirty empty cell’ occupied during that night only by the three of them. The sum total of his complaint as regards their overnight stay in the police holding cell was that the blankets they were provided with to sleep under were dirty and smelly. A proper reading of the appeal record seems to suggest that these complaints were contrived and extracted with great difficulty out of the deceased by his attorney when he was giving his evidence. We are therefore of the view that, as regards the treatment received by the deceased and his friends whilst detained in the holding cells and the prevailing conditions, there was nothing remarkable even on the evidence of the deceased himself. In his evidence in chief he even mentioned that the toilets and the ablution facilities they were given access to were clean and hygienic. This aspect of the matter, to which I shall revert to later on in my judgment, is an important factor to be considered when quantifying the general damages of the deceased. It is trite that an important consideration which has a bearing on the amount of damages awarded is the prevailing conditions under which a detainee was kept in custody.

[11]. The deceased never appeared in Court, but, as indicated above, they were released the very next day at about 16:00 after being given a stern talk by the public prosecutor. His action for damages was instituted during November 2015.

[12]. The respondent pleaded that the arrest was lawful in terms of s 40(1)(a) of the CPA, because the deceased committed an offence ‘of using of an illegal substance’. The defendant’s plea makes specific reference to the provisions of subsection 40(1)(a). This means that, by implication, the pleaded case of the respondent was that the arrest was lawful as per section 40(1)(a) because the offence (the use of a prohibited substance) was committed in the presence of a peace officer.

[13]. In order to discharge the onus of justifying the arrest on this ground (in that regard see: Zealand v Minister for Justice and Constitutional Development & Another, [2008] ZACC 3; 2008 (4) SA 458 (CC) at para 25; Minister of Safety and Security v Sekhoto & Another, [2010] ZASCA 141; 2011 (5) SA 367 (SCA) para 7), the respondent adduced the evidence of Mokwena and Mahlambe. The appellant also testified.

[14]. As regards a possible justification of the arrest based on s 40(1)(a), I am of the view that on the evidence before the court a quo there can be little, if any, doubt that this section and its provisions find application in casu. When Mahlambe and his colleague arrived at the backroom of Mokwena they found the deceased and his friends busy smoking dagga and they were literally caught in the act. It therefore can safely be said that the deceased had committed an offence in the presence of the arresting police officer.

[15]. The relevant portions of section 40(1) of the CPA provides as follows:-

‘40. Arrest by peace officer without warrant — (1). A peace officer may without warrant arrest any person—

(a) who commits or attempts to commit any offence in his presence;

(b) … …

[16]. The magistrate nevertheless found that the arrest was unlawful. He accepted that the arresting officer was entitled to effect the arrest of the deceased in view of the provisions of section 40(1)(a). However, in the light of the fact that the offence which the deceased and his cronies had committed was definitely not of a serious nature, there was no need to arrest and detain them. The police officer, so the trial court reasoned, had open to him less stringent and less invasive procedures to secure the attendance at court of the suspects. The arrest of the deceased was therefore unreasonable and therefore unlawful, so the learned Magistrate concluded. The arrest and detention, the trial court therefore found to have been unlawful, and R20 000 was awarded to the deceased for his general damages. As regards the claim by the deceased for general damages arising from the alleged assault, the trial court dismissed such claim on the facts. In that regard, the trial court rejected the version of the deceased that he was assaulted by members of the SAPS in addition to being assaulted by the Metro Police officers in the presence of the SAPS officers. On the facts it found proven, the Magistrates Court held that the SAPS is not responsible, directly or indirectly on the basis of vicariously liability, for the actions of the metro police officers.  

[17]. The factual finding of the Magistrates Court amounted to an outright rejection of the version of the deceased and an acceptance of the version of Mokwena. The members of the SAPS, so the learned Magistrate found, did not directly or indirectly assault the deceased, which means that the respondent cannot be held liable for damages resulting from the assault. This finding is closely linked to the amount of damages ultimately awarded in favour of the deceased, and it forms the main basis of the appeal against the judgment of the trial court.

[18]. These factual findings by Magistrate Mfulwane in relation to the assault on the person of the deceased, which obviously resulted in the award of a lesser amount for general damages, are now before us on appeal. The appeal is mainly against the factual findings by the trial court that the deceased was not assaulted by members of the SAPS, and if the deceased was assaulted by the metro police officers, as he claims, then, so the Magistrate found, the police officers were not present during that assault.

[19]. The appellant contends that the court erred in rejecting the version of the deceased that he was assaulted by a member of the SAPS, who ‘elbowed’ him at some point during or after the arrest, and that he was severely assaulted by Metro Police officers whilst police officers were present.

[20]. Magistrate Mfulwane was of the view that members of the SAPS did not assault the deceased. Furthermore, the learned Magistrate was not satisfied that the deceased had made out a case of assault by the employees of the respondent. At best for the deceased, so the trial Court held, he was assaulted by the Metro Police officers, but the respondent cannot and should not be held liable for the conduct of these Metro Police officers. There is no legal basis on which to attach liability to the respondent.

[21]. The way in which the evidence must be assessed and analysed when, as in casu, the court below was confronted by two mutually destructive versions is set out authoritatively by Eksteen AJP in National Employers' General Insurance Co Ltd v Jagers, 1984 (4) SA 437 (E) at 440E-G:

'It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.'

[22]. This appeal is directed at the above factual findings made by the Boksburg Magistrates Court. It is therefore necessary to revisit the authorities on the approach of a court of appeal in a case such as this. In R v Dhlumayo & Another, 1948 (2) SA 677 (A), at 706 Davis AJA stated:

'[8]. Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct; the appellate court will only reverse it where it is convinced that it is wrong.

[9]. In such a case, if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will uphold it.

[10]. There may be a misdirection on fact by the trial Judge where the reasons are either on their face unsatisfactory or where the record shows them to be such; there may be such a misdirection also where, though the reasons as far as they go are satisfactory, he is shown to have overlooked other facts or probabilities.

[11]. The appellate court is then at large to disregard his findings on fact, even though based on credibility, in whole or in part according to the nature of the misdirection and the circumstances of the particular case, and so come to its own conclusion on the matter.

[12]. An appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial Judge. No judgment can ever be perfect and all – embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.'

[23]. In S v Francis, 1991 (1) SACR 198 (A) at 204C – E, Smalberger JA reiterated the position set out in Dhlumayo, stating that in the 'absence of any misdirection the trial Court's conclusion', including in that case its acceptance of the evidence of an accomplice, 'is presumed to be correct'. In order to succeed in an appeal against factual findings, an appellant must convince an appeal court 'on adequate grounds that the trial court was wrong' when it accepted the evidence in issue: and 'a reasonable doubt will not suffice to justify interference with its findings'.

[24]. With those basics in place, I now turn to Magistrate Mfulwane’s judgment and, in particular, his analysis of and findings on the evidence presented before him.

[25]. The version of the deceased was that on the day in question, at about midday, he was at his friend’s house. It later turned out that the friend was in fact Mokwena, also referred to in the record as Tsepo, who gave evidence on behalf of the Minister. The evidence of the deceased was that he was just sitting there, when members of the SAPS and Metro Police officers arrived and enquired about the hijacking of a Ford Bantam bakkie. They denied any knowledge of or involvement in the robbery. They were then summarily assaulted and beaten up by the officials. The assault was in the form of kicking and hitting and being batted with the back of a rifle, and the purpose of the assault was to extract out of them information relating to the car hijacking. Most of the assault, so the deceased testified, was perpetrated by the Metro Police officers, with the SAPS members throwing in an attack here and there. After the assault, so the evidence of the deceased continued, they were taken to the Police Station, where they were detained overnight and released at about 16:00 the next day. At the police station, according to the deceased, was the first time that the accusation of them smoking dagga came up. Up to that point they were only accused of being involved in the hijacking of the Bantam bakkie. The deceased also denied smoking dagga on the day. He stated that the claims of them smoking dagga are trumped up.

[26]. As I indicated above, the two witnesses on behalf of the respondent were Tsepo Mokwena, who was in fact a friend of the deceased, and the arresting officer. Both of them testified that the deceased was found by the police smoking dagga with his friends and that he was not assaulted by the SAPS members. The difficulty with the story of the deceased was that it is difficult, if possible at all, to explain why Mokwena would go to the trouble of fabricating a whole version against his friend, the deceased. It also seems so improbable that the deceased would be sitting with persons smoking dagga, whilst he was not. Also, the evidence of the deceased was at variance with the case pleaded on his behalf. Nowhere in his particulars of claim did the deceased allege that most of the assault was in fact perpetrated by the members of the Metro Police. It was averred by him that the police assaulted him. This, in my judgment, is a material discrepancy in the version of the deceased, which would have played a crucial role in the ultimate factual findings by the trial court.

[27]. Mr Viljoen, who appeared for the appellant, attacked the factual findings of the trial court as well as the conclusion that, on the evidence, the deceased was not assaulted by members of the SAPS or by the Metro Police officers in the presence of the Metro Police. His attack on the factual findings is based on a number of alleged misdirections on the part of Magistrate Mfulwane. He submitted that the versions of the respondent’s main witness, Mahlambe and Mokwena, were mutually destructive of each other.

[28]. Mr Viljoen also submitted that the version of the deceased was more probable than that of the respondent. For the reasons alluded to above, I cannot agree with this submission. If anything, it is the version of the deceased which, on a reading of the record, is an inherently improbable one.

[29]. I cannot see how the learned Magistrate misdirected himself.

[30]. When trying the facts in a matter and when faced with two mutually destructive versions of an incident, as is the case in the matter before us, the Court is required to decide whether, on all the evidence, the appellant’s version is more probable than that of the respondent. More probable has also been defined as more plausible and more natural. In that regard, the court in Govan v Skidmore, 1952 (1) SA 732 (N), stated as follows:

‘In finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on evidence … by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one.’

[31]. As indicated above, a major difficulty I have with the version of the appellant is the fact that it is contradicted by the evidence of his friend, who, on the face of it, did not have an axe to grind with the deceased. Closely linked to this apparent incongruity in the version of the appellant is the fact that there appears to be no explanation, let alone an acceptable one, as to why he was sitting with persons who were smoking dagga when he himself was not indulging. This, in my view, is a lacuna in the version of the appellant and detracts in a material way from the probability of that version. If regard is had to all of the aforegoing, I cannot but conclude that the appellant’s version on the aspect of the assault is an inherently improbable one.

[32]. Add to the aforegoing the fact that a reading of the record relating to the evidence of the deceased leaves one with a feeling of unease, then the version of the appellant becomes more improbable. An example of the aforegoing is that his evidence in chief was that when the police arrived they asked about the car hijacking. Later on in cross – examination he then stated that the police just started assaulting them without asking any questions.

[33]. In the result, I can find no justifiable basis for interfering with the factual findings of Magistrates Court. That being so, they are presumed to be correct. I also can find no basis to criticize the Magistrate’s conclusion that the probabilities favour the version of the respondent. At best for the appellant, the probabilities on the issue of the assault are equally balanced. The appellant, who is the one who bears the onus to prove the assault, would nevertheless fail even in the best scenario for her.

[34]. It follows that the appeal relating to the assault and the factual findings in that regard must fail.

The Quantum of the Appellant’s Claim

[35]. It was furthermore contended by the appellant that even with a finding that there was no assault, the amount awarded for general damages for unlawful arrest and detention, was unreasonable and unfair. The amount awarded, so Mr Viljoen submitted, under this head of damages should have been in the region of between R60 000 and R100 000. In that regard, he referred us to a number of cases where awards were made, which were all more than the R20 000, which the deceased received in casu.

[36]. I have above alluded to factors which would have had a bearing on and played a part in the quantification of the appellant’s general damages. Importantly, the deceased was detained for approximately twenty eight hours, whereafter he was released after a talk to them by the Senior Public Prosecutor. There is no evidence that he was treated particularly badly and by saying that I do not intend to downplay the hurt the deceased would have felt by being arrested and placed in a police cell. The evidence was that their cell, whilst described as empty and dirty, was not specifically unhygienic and uninhabitable. They were not deprived of access to ablution facilities. The toilet facility was clean and usable. The evidence of the deceased was also that they were provided acceptable, clean and edible food. But for the dirty and smelly blankets provided to them by the police, the deceased and his friends apparently had no other notable complaints regarding their overnight stay in the police holding cells.

[37]. It is trite that in assessing damages for unlawful arrest and detention, the court must take into account all the relevant facts and circumstances of the case and then determine the quantum of damages with reference to the facts and circumstances of the case which would include, amongst others, the age, sex, status, culture and lifestyle of the plaintiff, his social and professional standing as well as the circumstances, nature and duration of the arrest and detention and the publicity given thereto. There is no closed list of factors that must be taken into account.

[38]. In Minister of Safety and Security v Tyulu, 2009 (5) SA 85 (SCA), also reported at [2009] 4 All SA 38 (SCA) and [2009] JOL 23662 (SCA), Bosielo JA said the following at par [26] of the judgment:

‘In the assessment of damages for unlawful arrest and detention, it is important to bear in mind that the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his or her injured feelings. It is therefore crucial that serious attempts be made to ensure that the damages awarded are commensurate with the injury inflicted, However, our Courts should be astute to ensure that the award they make for such infractions reflect the importance of the right to personal liberty and the seriousness with which any arbitrary deprivation of personal liberty is viewed in our law. I readily concede that it is impossible to determine an award of damages for this kind of injuria with any kind of mathematical accuracy. Although it is always helpful to have regard to awards made in previous cases to serve as a guide, such an approach if slavishly followed can prove to be treacherous. The correct approach is to have regard to all the facts of the particular case and to determine the quantum of damages on such facts.’

[39]. We have had regard to a number of cases dealing with the amounts awarded for unlawful arrest and detention. In Minister of Safety and Security v Seymour, 2006 (6) SA 320 (SCA), also reported at [2007] 1 All SA 558 (SCA) and [2006] JOL 17531 (SCA), the SCA reduced the general damages awarded to the respondent from R500 000 to R90 000. The respondent was a 63 – year old man and had been unlawfully arrested and imprisoned for a period of five days. On appeal, the court took into account that he had free access to his family and doctor throughout his detention; that he had suffered no degradation beyond that inherent in being arrested and detained; that, after the first 24 hours, he had spent the remainder of his detention in a hospital bed; that, although the experience had been traumatic and distressing, it warranted no further medical attention after his release; and that whilst he had been diagnosed as suffering from depression and anxiety after the incident, it was not attributable solely to his arrest and detention.

[40]. In Louw and another v Minister of Safety and Security and others, 2006 (2) SACR 178 (T), the plaintiffs were detained for 20 hours and were awarded R75 000 each for damages.

[41]. In Van Rensburg v City of Johannesburg, 2009 (2) SA 101 (W), also reported at [2007] ZAGPHC 276; [2008] 1 All SA 645 (W) and [2008] JOL 21164, the court awarded R75 000 in damages for a 74 – year old retired accountant who was arrested by the Metro Police and spent about five hours in custody.

[42]. The deceased was born on the 30^th of September 1991. This means that he was 22 – years old at the time of his arrest. This matter is distinguishable from most, if not all of the above matters and the resultant awards, in that the deceased, on the evidence had made himself guilty of a crime, albeit a minor one, in the presence of law enforcement agents. It therefore cannot be said that he came before court with clean hands.  

[43]. The appellant was in custody for twenty eight hours before he was released. There may very well have been a legal basis for his arrest and detention by members of the police in whose presence he committed a crime. Whilst our law regards the deprivation of personal liberty as a serious injury, it also places a high premium on the rule of law.

[44]. Taking into account the facts of this case as a whole, the past awards and relevant case law, we cannot fault the amount of R20 000 awarded by the trial court in respect of the unlawful arrest. It needs to be emphasised that, in our judgment, when all is said and done, the deceased had made himself guilty of a criminal offence. In a way, he is not like many a plaintiff in these claims against the Police, who are arrested and detained when they have not committed any offences.

[45]. In the circumstances, we are of the view that the appellant’s appeal should fail.

Cost

[46]. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there be good grounds for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C) at 455.

[47]. In support of his submission that we should deviate from the above general rule, Mr Viljoen referred us to the case of Biowatch Trust v Registrar Genetic Resources and Others, 2009 (6) SA 232 (CC), 2009 (10) BCLR 1014 (CC), (3 June 2009), in which the State was ordered to pay the costs in circumstances where, when applying the above general rule, one of the parties would have been held liable for costs. The Constitutional Court had this to say as regards costs:

‘[56] I conclude, then, that the general point of departure in a matter where the state is shown to have failed to fulfill its constitutional and statutory obligations, and where different private parties are affected, should be as follows: the state should bear the costs of litigants who have been successful against it, and ordinarily there should be no costs orders against any private litigants who have become involved. This approach locates the risk for costs at the correct door - at the end of the day, it was the state that had control over its conduct.

[57] In the present case the High Court misdirected itself in respect of the factors it was obliged to consider when it held that the applicants should pay costs in favour of Monsanto. In its curt appraisal of costs, the High Court did not take appropriate account of the fact that the litigation was essentially constitutional in nature. Nor did it deal adequately with the fact that it was the state’s conduct that had provoked the litigation in the first place. Nor did it take account of the fact that its order afforded Biowatch crucial information whose release Monsanto had resolutely opposed.

[58] This Court is accordingly at large to review the costs award in favour of Monsanto and come to its own conclusion. In doing so I will give due acknowledgement to the fact that the High Court was extremely troubled by the lack of precision in the claims made by Biowatch. At the same time, it is necessary to bear in mind that this was fresh constitutional terrain for all. The litigation commenced before the PAIA came into force, and all the parties had to feel their way. In addition, all the factors which have already been referred to in the discussion on the failure of the High Court to order the state to pay Biowatch’s costs, are relevant to the appraisal of the correctness of the order that Biowatch pay Monsanto’s costs. Taking all these considerations into account, the costs award in favour of Monsanto is unsustainable. No order at all should have been made between the two private parties involved in the matter.’

[48]. In my judgment the principles enunciated in the Biowatch matter do not find application in the matter before us. I say so for the simple reason that the litigation in casu was not essentially constitutional in nature. Furthermore, it cannot possibly be suggested by anyone, least of all the appellant, that in the case before us and in the court a quo the parties found themselves in fresh constitutional terrain. The litigation involved factual disputes between the parties in the context of delictual law relating to the unlawful arrest and detention and unlawful assault, which are legal fields in which the law is relatively settled. It cannot possibly be said that the parties had to feel their way through the litigation.

[49]. In the premises, I am of the view that there is no reason why the general rule relating to costs should be deviated from. The appellant, as the losing party, should therefore be ordered to pay the respondent’s cost of the appeal.

Order

In the result, I make the following order:-

(1) The appellant’s application for the late noting of the appeal be and is hereby granted.

(2) The respondent’s application for the late filing of his written heads of argument be and is hereby granted.

(3) Each party shall bear her / his own cost relating to the applications for condonation. 

(4) The appellant’s appeal be and is hereby dismissed.

(5) The appellant shall pay the respondent’s cost of this appeal.

_______________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

I agree,

M B G LANGA

Acting Judge of the High Court

Gauteng Local Division, Johannesburg

 

HEARD ON:	23rd April 2019
JUDGMENT DATE: FOR THE APPELLANT:	26th April 2019 Adv Johan Viljoen
INSTRUCTED BY:	E Talane Incorporated
FOR THE RESPONDENT:	Adv P N N Zimema
INSTRUCTED BY:	The State Attorney, Johannesburg

 

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