IN THE HIGH COURT OF SOUTH AFRICA

In the matter between:

and

JUDGMENT

It is common cause that on 20 September 2005, plaintiff was arrested without a warrant of arrest by members of the South African Police Services acting within the course and scope of their employment with defendant   It is further common cause that subsequent to his arrest, plaintiff was taken to the Ravensmead Police Station for the purpose of obtaining a so-called warning statement from him. There he was detained in custody in the police cells and released approximately one hour after he had been arrested. He appeared in court a few days later when the charge of common assault, which had been preferred against him, was withdrawn.

In his particulars of claim, plaintiff alleges that as a result of the aforegoing, he suffered damages in an amount of R100 000 due to the grave distress, inconvenience and humiliation suffered by him which, he alleges, resulted in a grave impairment of his dignity. The action was defended and after hearing evidence, the magistrate granted judgment in favour of plaintiff for payment of R60 000 as damages, together with interest thereon and ordered defendant to pay plaintiff's costs on the scale as between attorney and client. Defendant now appeals against the whole of the judgment and order made by the magistrate.

As appears from the magistrate's reasons for judgment, defendant conceded the merits of the action during argument. The magistrate was accordingly only called upon to decide the issue of the quantum of plaintiff's claim and to make an appropriate costs order   As appears from defendants notice of appeal, the contention on behalf of defendant is that the magistrate erred and misdirected himseff in awarding the amount of R60 000 as damages and awarding plaintiff costs on the attorney and client scale.

"The ordinary rule is that the successful party is awarded costs as between party and party. An award of attorney and chent costs is not lightly granted by the court: the court leans against awarding attorney and client costs, and will grant such costs only on rare occasions. It is clear that normally the court does not order a litigant to pay the costs of another litigant on the basis of attorney and client, unless some special grounds are present."

It is clear from the evidence that plaintiff is a sophisticated, educated and successful businessman, who at the time of his arrest and detention employed approximately 50 people in his two factories in the Western Cape. I have no doubt that being arrested and handcuffed in full view of his employees, plaintiff suffered severe humiliation and was gravely injured in his dignity. His dignity was further injured during his subsequent detention, especially in view of the manner in which he was treated.

On reflection I am of the view that on the facts of the present matter, an amount of between R30 000 and R40 000 would constitute adequate compensation. In my opinion an amount of between R10 000 and R20 000, as suggested by Mr Jacobs, would not amount to adequate compensation for the plaintiff. It follows, in my view, that there is a striking disparity between the award made by the magistrate and that which I would have awarded.

In the circumstances I conclude that this Court should interfere with the exercise of the trial court's discretion by awarding a lesser amount as damages. I should add that in regard to interest on the damages, the magistrate awarded interest as from the date of judgment. Mr Engela, after being prompted by this Court, moved for an amendment to the summons to claim interest as from the date of an earlier demand. This application is opposed and, upon consideration, we are of the view that Mr Jacobs correctly submitted that in the absence of a cross-appeal, such an amendment cannot be granted. The application for an amendment of the summons is accordingly refused

In regard to the costs order made by the magistrate, I am of the view that there is no legally justifiable basis for the making of a punitive costs order. In awarding costs on a punitive scale, the magistrate found that:

The mere fact that the defence to the merits was unsuccessful, does not mean that the opposition was vexatious or obstructive. In my view there are no special grounds justifying a punitive cost order, in fact, by defending the action, the defendant succeeded in having the claim of RtOO 000 reduced to R60 000. The magistrate also sought to justify the punitive costs order on the basis that plaintiff had a right to come to court. However, that is a right also afforded to defendant, who was successful in having the claim reduced. I accordingly conclude that the magistrate misdirected himself in finding that in the circumstances of this case, a punitive costs order is justified.

1. The appeal succeeds and the order made by the magistrate is set aside and the following substituted therefor:
"(a) Defendant is to pay damages to plaintiff in an amount of R35 000, together with interest thereon at the rate of 15,5% per annum, caEculated from date of judgment to date of final payment
(b) Defendant is to pay plaintiff's costs of suit on the   scale   as   between   party   and   party, including counsel's fees." 
2.     No order is made as to the costs of the appeal.
FOURIE, J

I agree