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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)      REPORTABLE: NO/YES

(2)      OF INTEREST TO OTHER JUDGES: NO/YES

(3)      REVISED.NO

CASE NO: 63597/2016

30/8/2019

 

In the matter between:

 

KATISHI DAVID MAKUBUNG                                                                             PLAINTIFF

 

And

 
THE MINISTER OF POLICE                                                                                 DEFENDANT

JUDGMENT

SENYATSI AJ

[1]          This is a claim for damages by the Plaintiff, a major male fire officer who resides at [….]. The claim arises out of an alleged wrongful arrest and detention by members of the South African Police Service and the Defendant is cited in his representative capacity.

[2]          The brief background is that on Sunday 13 December 2013 at about 23h05 the Plaintiff was arrested at his home by police for alleged kidnapping. The police went on to arrest and detain him, despite being told of the alleged alibi by the Plaintiff in respect of the alleged kidnapping and having invited them to speak to available witnesses of his alibi.

[3]          The Plaintiff was taken to Simonville police station. At the police station the Plaintiff provided the police with his affidavit and set out his alibi in respect of the alleged kidnapping. The Plaintiff was then transported to the Kameeldrift police station by the police and detained in a police cell from very early in the morning on 16 December 2013.

[4]          The conditions at Kameeldrift police station were not acceptable to the Plaintiff. He was given a thin sponge to sleep on the hard concrete floor of the police cell. He was given two dirty blankets to cover himself while sleeping. The toilet in the police cell was very dirty, stinking badly and had no toilet paper.

[5]          The Plaintiff was not taken to court on Tuesday 17 December 2013 and further allegedly wrongfully detained by the police until Wednesday 18 December 2013. The Plaintiff was then taken to Pretoria North Magistrates' Court where criminal charges were preferred against him and he was remanded in custody by Court and the case was postponed to 27 December 2013. Plaintiff was moved and detained at Kgoshi Mampuru prison, Pretoria.

[6]          The police were acting within the course and scope of their employment as members of the South African Police Services.

[7]          As a result of this alleged wrongful arrest and detention, the Plaintiff avers that his rights to freedom and dignity were infringed and he suffered general damages for which the Defendant is vicariously liable.

[8]          The Plaintiff had to secure the services of a legal representative following his arrest and detention, to secure his release from the alleged wrongful detention. He expended the sum of R5000 for such legal services which amount, so avers the Plaintiff, is reasonable and necessary.

[9]          The background as stated above constitutes common facts, with the exception of payment of R5000 for the legal services.

[10]      The issue that is in dispute is whether the further detention of the Plaintiff from his first appearance in court on 18 December 2013 until 27 December 2013 remained wrongful because the investigating officer was in breach of the legal duty , negligently failed to-

10.1      apply herself to whether or not it was justified to further detain the Plaintiff during that period;

10.2      give fair and honest statement of the relevant facts to the prosecutor who acted in the criminal case against the Plaintiff on or before the 18 December 2013,

10.3      bring all the relevant circumstances to the attention of the court on 18 December 2013 or anytime thereafter or before 27 December 2013 and releasing him from detention before 27 December 2013.

 

[11]      Mr Sibara has conceded on behalf of the Defendant that liability is conceded with regard to the delictual claim of wrongful arrest and detention from the evening of the 13 December 2013 until the matter was placed on the roll in the morning of 18 December 2013.

[12]      The only issue in dispute is the liability of the Defendant for the Plaintiff's detention from the 18^th December 2013 until his release on bail on the 27^th December 2013. Lastly, the quantum for damages suffered by the Plaintiff also needs to be determined.

[13]       Section 40(1) of the Criminal procedure Act 51 of 1977 provides for an arrest by a peace officer without a warrant of arrest. The section permits a peace officer to arrest without a warrant of arrest any person-

(b) who he reasonably suspects of having committed an offence referred to in Schedule 1; or

(g) who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce.

 

[14]       As it has already been conceded that the arrest was unlawful for the period of 13 December 2013 until 18 December 2013, I will not deal with the law relating to that section of the delictual claim.

[15]       With regards to the continued detention after the 18 December 2013 to 27 December 2013, it is trite that once the Plaintiff is brought before the court, the Defendant is not responsible for further detention. (See Minister of Police v Du Plessis 2014 (1) SALR 217 (SCA)).

[16]       In Minister of Safety and Security v Sekhoto 2011 (1) SALR 315 (SCA) at paras 42-44, Harms DPJA held as follows:

"While it is clearly established that the power to arrest may be exercised only for the purpose of bringing the suspect to justice, the arrest is only one step in that process. Once an arrest has been effected, the peace officer must bring the arrestee before the court as soon as reasonably possible within 48 hours (depending on court hours). Once that has been done the authority to detain that is inherent in the power to arrest has been exhausted."

 

[17]       In De Klerk v Minister of Police 2018 (2) SALR 28 (SCA) at para 44, the court held as follows:

"While the purpose to arrest is to bring the suspect to trial, the arrestor has a limited role in that process. He or she is not called upon to determine whether the suspect ought to be detained pending trial. That is the role of the court (or in some cases, a senior officer). The purpose of the arrest is no more than to bring the suspect before the court (or the senior officer) so as to enable that role to be performed."

 

[18]       The concession made for the wrongfulness of the arrest and detention beyond the 48 hour until appearance court on the 18 December 2013 was a correct concession.

[19]       As regards to further detention beyond the 18 December 2013 to 27 December 2013, it has been accepted that once the Plaintiff before court on 18 December 2013, it was the prosecutor who made the decision to prosecute. This is a role that is exclusively reserved for the National Public Prosecutions and the Defendant plays no part therein.

[20]       From the Plaintiff's pleading it is clear that the Plaintiff did not plead that the Defendant influenced the decision to prosecute, it should also be remembered that the Plaintiff had given his statement on his alibi to the police. This same statement was in the docket when the prosecutor took a decision to prosecute. There is no evidence or a case made, as already stated, that the Defendant had any role to play for the continued detention from the 18 December 2013 to 27 December 2013. Consequently, I hold the view that the Defendant is not responsible for the detention of the Plaintiff from the 18 December 2013 to 27 December 2013.

[21]       The next issue to be determined is the assessment of quantum for general damages. This is with regards to the five days spent in detention due to wrongful detention for the period 13 December 2013 to 18 December 2013.

[22]       The court has a wide discretion to award what in the circumstances it considers to be fair compensation to the injured party by way of general damages. In so doing the court should look at the facts of each case (see Protea Assurance Co Ltd v Lamb 1971(1) SA 530 (A) at 534H).

[23]       In awards of general damages the previous comparable cases are a useful guide to what is appropriate but are not the only guideline (see Minister of Safety and Security v Seymour 2006 (6) SA 320 (SCA)).

[24]       The Supreme Court of Appeal has held in Road Accident Fund V Marunga 2003 (5) SA 164 (SCA) that considering awards in the previous comparable cases, the court must be mindful of the tendency to make higher award in general damages.

[25]       It is furthermore trite that in assessing what an appropriate award by way of general damages, such awards must be fair to both parties( See Pitt v Economic Insurance Co Ltd 1957 (3) SA 287 (0) at 287F).

[26]       In Van Rensburg v City of Johannesburg 2009 (1) SALP 32 (WLO), a 74 Year old was detained for an afternoon. The court awarded R75 000 general damages.

[27]       In Ramphal v Minister of Safety and Security 2009 (1) SALR 11 (ECO) a 54 year old shopkeeper was wrongfully arrested in the presence of family and customers. He was detained in a cold cell with no private ablution facilities. There was no food or water provided at night. He was made to sleep in filthy blankets. He was traumatized by the experience. He was kept in detention for 19 hours 10 minutes. The court awarded R35 000 general damages to him.

[28]       In Rudolph and Other v Minister of Safety and Security and Another 2009 (2) SALR 271 (SCA). The Plaintiff was wrongfully arrested and detained from 17h00 on Friday to 12h00 on Tuesday. The conditions in the police and prison cells were humiliating. He was awarded R100 000 for general damages.

[29]       in Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA) a 48 year old magistrate was wrongfully arrested, manhandled and dragged into police vehicle, taken to a scene of a collision and there accused of committing a crime, arrested for an improper motive. The arrest lasted for 15 minutes and he was awarded R15 000 general damages.

[30]       In Seria v Minister of Safety and Security and Another 2005 (5) SA 130 (CC), the Plaintiff, a 50 year old architect was wrongfully arrested in the presence of guests he was entertaining at his home. The arrest and detention lasted for 3 and half hours. The court awarded R50 000 in respect of general damages.

[31]       In the instant case, the Plaintiff was arrested at about 23h00 at his house. He must have been humiliated by the arrest. He suffered humiliating conditions in the police and prison cells where he was made to sleep on a dirty mattress for 5 days. The arrest and detention lasted well beyond the Day of Reconciliation Holiday must have been quite traumatic to him.

[32]       In view of the principles stated above, it is in the interest of justice that the award to be made for the five days in custody has to be appropriate and fair for both parties.

 

Order

[33]       The following order is made:

(a)               The Defendant is held liable for wrongful arrest and detention of the Plaintiff for the period 13 December 2013 until 18 December 2013.

(b)               The Defendant is ordered to pay the Plaintiff the sum of R145 000 (Hundred and forty-five thousand rand) for general damages.

(c)               The Defendant is ordered to pay the costs of suit.

 

 

 

M.L SENYATSI

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

APPEARANCES

For The Plaintiff: ADVOCATE JJS PRINSLOO SC

Instructed By: MR VIVIEN DE KLERK OF DE KLERK & MARAIS INC.

 

For The Defendant  ADVOCATE SR SIBARA

Instructed By MR S MODUKANELE OF THE STATE ATTORNEY, PRETORIA

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