IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CASE NO.: 1153/06 In the matter between: DIRK HENDRIK PRINS PLAINTIFF and MINISTER OF SAFETY AND SECURITY RESPONDENT JUDGMENT LANDMAN J [1] Mr Dirk Hendrik Prins, the plaintiff, and his wife Hazel lived in a caravan at the Amanda Country Lodge, Donkerhoek, Rustenburg. He is middle aged and a panel beater by trade. His wife is a car guard. He fell upon hard times and fell behind with his rent. On 25 April 2005 Mr Grey Sparke, the resort manager and Mr Alfred Zwane, the caravan park manager, gave the plaintiff written notice to vacate the premises of Amanda Country Lodge by no later than 5pm on 1 st May The notice also stated: failure to adhere with (sic) this notice will result in severe legal action being 1

2 taken. [2] The plaintiff vacated the premises on 25 April He and his wife found accommodation with a friend in the ou dorp of Rustenburg. On 5 May 2005 Mr Sparke and Mr Zwane arrived at the plaintiff s new address and arrested the plaintiff or at least induced him to accompany them to the Rustenburg Police Station. At the Police Station the managers laid a complaint against the plaintiff. [3] Inspector Susan Schoeman interviewed them and recorded, in an affidavit, the complaint viz the plaintiff failed to pay lodging losies in terms of the Hotel Act (which had been repealed). She took the plaintiff to the cells and handed him over to Inspector Matshe. [4] According to the plaintiff he was placed in an overcrowded cell containing about 40 other suspects. He was detained until his release at the Magistrates Court on Monday 9 May The control Prosecutor, Mr Bekker, withdrew the charges that had been preferred against him. [5] The plaintiff says he paid a protection fee of R100 a day during his incarceration to other inmates who were in de facto control of his cell. He was given 2 blankets and was obliged to sleep in the exercise yard which is covered by a grid but otherwise open to the elements. He was cold at 2

3 night. There was not enough room to sleep. No mattress was supplied. He slept on the concrete floor. The blankets were dirty and lice infested. The inmates controlling the cell did not permit him to use the toilet until Monday morning. He was given 2 meals a day but inmates took his food away, so he did not eat regularly. [6] The inmates were criminals. At least one inmate told him that he had hijacked motor vehicles. threatened to harm his wife. Some inmates [7] When he was released his ring, which was inexpensive but had sentimental value as it was given to him by his son 12 years at the time, and his shoelaces were not returned to him. The staff of the Rustenburg Police Station told him that they had been lost. [8] Mrs Prins was guarding cars on Thursday 5 May outside Clicks in Rustenburg when she received word that her husband, the plaintiff, was detained in the cells of the local Police Station. She got a fright. She went to the Police Station and was able to speak to him for about 2 minutes. He had not yet been booked. [9] Altold she visited the plaintiff 3 times while he was in the cells. There were 6 or 7 people in front of him. They conversed in public. She gave him R100 a time to pay 3

4 protection money. She was pushed and jostled when she visited the plaintiff. She said the cells were crowded. She confirmed, under cross examination, that the plaintiff complained of the bad conditions in the cells. He came out starving. She saw the hands of inmates in his cell grabbing his food. He told her that it was cold. The top of the cell was open. He slept in the open exercise yard. She was asked whether the plaintiff had complained to her about the state of the blankets. She said he did not. She said she did not know whether his blankets had been taken away from him. He did not tell her that he had been bitten by lice. [10] She said he told her he had been to the toilet once but he did not describe the condition of the toilet to her. [11] She said that their children particularly the 22 year old and 20 year old did not wish to have anything to do with him because he had been in gaol. Nevertheless they had spoken to him briefly on his birthday. She sought assistance from Mr Bekker, the control prosecutor, at the Rustenburg Magistrates Court. [12] Mr Bekker testified on behalf of the plaintiff. He saw Mrs Prins together with Inspector Claasen the case liason officer. Mrs Prins told him about her husband s arrest. He gathered that it was about rent money but he could not fully understand her. Mrs Prins told him she had to pay money 4

5 as a fee to protect her husband. He called for the docket. On Monday he perused the docket and advised that the plaintiff had not committed a crime. In any event the plaintiff had been arrested without a warrant. complained of his treatment in the cells. The plaintiff [13] Mr Bekker had visited the cells of the Rustenburg Police Station on those occasions when he dealt with bail aplications. He described the layout of the cells. The cells are in an L shape. There is a holding cell and 5 permanent cells. All cells consist of a roofed area and an area only closed by an overhead grid (the exercise yard). He had heard inmates complaining of rain and cold when they slept under the grid. He had also heard complaints of rape and assault in the cells. He did not pay attention to the conversation of the plaintiff with his wife. But he remembers the plaintiff complaining of sleeping under the grid. He had not been at the cells when it was time to sleep. [14] It was put to him that the Police had made a mistake of law and that the Police had bona fide believed that the plaintiff could be arrested. He stated that he did not know what their version of the case was. [15] Superintendent Sellela, the Station Commander of the Rustenburg Police Station, gave evidence. His evidence was that: 5

6 (a) The regulations regulating the condition of the cells are strictly adhere to. (b) The cells are never overcrowded. Excess inmates are transferred to other Police Stations or the Prison. At times there may be one extra person in a cell. (c) He has never heard of the concept of protection money. (d) As it was winter 3 blankets and a mattress were issued (e) (f) to the inmates. The blankets are drycleaned every 2 weeks. The inmates do not sleep in the exercise section of the cells. They are locked in the roof area of the cell. (g) The plaintiff would not have been prevented from using the toilet. (h) Three meals (not 2) are served per day. (i) Policemen are on duty when the food is served and food could not be taken away from the plaintiff. (j) The inmates were suspects and not criminals. But, as some were suspected of serious crimes, they were locked in at night in order to prevent them escaping. (k) Inmates are given their possession when they are released. The plaintiff would have received his ring and shoelaces as possessions were locked in a safe. The plaintiff would have signed a receipt for his possessions. [16] The plaintiff s description of the conditions prevailing in his cell does not tally at all with the version of the defendant. They cannot both be true. The plaintiff struck me as being an honest man of humble circumstances. He could easily have exaggerated the conditions. I do not think he did. 6

7 [17] Mrs Prins supports part of her husband s testimony. She could, if she was being untruthful, have confirmed even more. [18] Superintendent Sellelo on the other gave his evidence confidently and crisply. It would be most commendable if the conditions at the Rustenburg cells were a textbook example of what they should be. But they simply sound too good to be true. [19] The defendant has been obstructive as regards the prosecution of this matter. Essential documents were not provided timeously to the plaintiff s attorneys. The defendant provided a copy of an occurrence book. But it appears that this is of no value as a separate book is kept for the cells. This book, so says the Superintendent, could reflect that the cells are visited every hour. The Superintendent said that the cell register would indicate that the cells were not overcrowded. He was asked by Mr Botha, who appeared for the plaintiff, to bring the register to court. He returned from Rustenburg the next day and said that he arrived there late and departed too early to secure the register. [20] He also said that the receipts kept by the station would reflect whether the plaintiff s possessions were returned to him. This document was also not produced. [21] Mr Bekker, as opposed to the other witnesses, is an independent witness. He did not see the cells during the period of the plaintiff s detention but he has seen them on other occasions and he has heard, by virtue of his position as a control prosecutor, frequent complains about assault, 7

8 rape and inmates sleeping in rain and cold. He is also a witness to the plaintiff s distress regarding his experiences while in detention. [22] Although a faint attempt was made in cross examination to negate the wrongfulness of the arrest and detention, no argument was presented to me by the defendant to justify the defendant s plea. The plaintiff was unlawfully and wrongfully arrested and detained by members of the Rustenburg Police Station acting within the course and scope of their employment. The defendant is vicariously liable for the delict committed by them. The plaintiff has suffered harm on account of his unlawful arrest and detention. [23] What remains is to determine the quantum of the damages suffered by the plaintiff. In deciding on the quantum to be awarded to the plaintiff I am mindful that: (a) There is no fixed formula for the assessment of damages for non patrimonial loss. See Seira v Minister of Safety & Security and Others 2005 (5) SA 130 (C) at 148. (b) It is recognised that a court has the power to estimate an amount ex aequo et bono and consequently enjoys a wide discretion, with fairness as the dominant norm. In Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) Holmes J stated at 287E F: I have only to add that the Court must take care to see that its award is fair to both sides it must give just compensation to the plaintiff, but it must not pour out 8

9 largesse from the horn of plenty at the defendant s expense. See Seira s case at 149. (c) Awards in comparable cases provide general guideline. But as Innes C J said in Hulley v Cox 1923 AD 234 at 246 Of course, each claim must depend upon its own facts, and a comparison with other cases can never be decisive; but it is instructive. Of course previous awards need to be converted to current value. (d) Awards in decisions predating the new constitutional dispensation ushered in by the Interim Constitution (The Constitution of the Republic of South Africa of 1993) and the final Constitution (The Constitution of the Republic of South Africa of 1996) may be too low for delicts relating to the invasion of liberty, committed after the new dispensation took effect. In a constitutional dispensation where our Bill of Rights rules and regulates the affairs of men, it would seem to me to follow that an infringement of such an entrenched right protected by the Constitution may very well attract a larger measure of damages than under a system where citizens were not accustomed to the protection of entrenched rights. Per Claasen J in Lui Quin Ping v Akani Egoli (Pty) Ltd t/a Gold Reef City Casino 2000 (4) SA 68 (W). (g) (e) The circumstances of the arrest. (f) The duration of the detention. The conditions of the detention. 9

10 (h) The effect of the arrest and detention on the plaintiff. (i) The standing of the plaintiff in the community. (j) The presence or absence of malice. (k) The presence or absence of an apology. (l) The presence or absence of publicity. (m) Any contribution by the plaintiff to his loss. See Tobani v Ministerial Correctional Services NO [2002] 2 ALL SA 318 (SE). [24] Further, as to the quantum of the claim, the circumstances of the plaintiff s arrest, its duration and nature, its distressing effect upon him, his standing, the absence of malice on the part of the defendants, and the awards in comparable cases, a fair and proper award for the deprivation of the plaintiff s liberty occasioned by his unlawful arrest would be R In my view this finding is correct. The detention of a person is either justified by the laws which regulate detention in a prison, or it is not. So fundamental is the right to personal liberty that the lawfulness otherwise of a person s detention must be objectively justifiable, regardless of the bona fides of the gaoler and regardless whether or not he was aware of the wrongful nature of the arrest and detention. This has always been the position. [25] Mr Senatle submitted that although he did not necessarily want to justify the arrest, the plaintiff was the author of his own misfortune. He should have paid his rent. Had he done so he would not have been arrested and detained. This is a meritless contention. The plaintiff s impecuniosity s does not 10

11 constitute a crime and cannot diminish, in any way, the amount of compensation to which he is entitled. [26] Although the State Attorney (in the application for postponement before me which was refused) said he recommended to his client that R would be awarded, Mr Senatle submitted that R4000 would be adequate compensation. [27] I am unable to appreciate how Mr Senatle fixed on this amount. He took me through an exercise where he considered a number of cases since He updated the quantum in these cases in accordance with Koch s The Quantum Year Book to 2005 and what then worked out what can be described as a daily rate for unlawful detention. He also described the facts of these cases. Dladla v Minister of Police 1973 (2) SA 714 (W) R3 700; Ngcobo v Minister of Police 1978 (4) SA 930 (D) R8 600; Minister van Wet en Order v Van Den Heever 1982 (4) SA 16 (C) R 2 500; Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (VSC) R13 000; Thandani v Minister of Law and Order 1991 (1) SA 702 (E) R1 300; and Manase v Minister of Safety and Security and Another 2003 (1) SA 567 (CkHC) R [28] I am doubtful about the value of this exercise but in any 11

12 event the lowest amount awarded per day (according to these cases) is R Mr Senatle suggests that R1 000 per day would be a satisfactory amount for the plaintiff. He was unable to motivate why it should be lower than the lowest amount previously awarded. His suggestion also fails to take into account the wrongful arrest of the plaintiff. [29] In my opinion the decision in Louw v Minister of Safety & Security 2006 (2) SACR 178 (T) provide a useful benchmark. There, as the head note states, the plaintiffs, a married couple, claimed damages from the defendants on the grounds of unlawful arrest. The first plaintiff, acting in the course of her duties as an employee, removed a fax machine belonging to her employer from premises occupied by the fourth defendant and his wife. His wife, who was an employee of the same business, had just been dismissed. The fourth defendant reported the incident to the police who, after arriving on the scene in numbers, formed the opinion that a theft had taken place. Despite plaintiffs explanation and documentary proof of ownership, they were arrested and led from their premises in full view of the public in a humiliating manner, and detained on a Saturday night in one of Pretoria s busiest police stations. They were traumatised by the police s action, and were exposed to hardened criminals while being detained under appalling conditions. The plaintiffs had suffered not only humiliation and an invasion of their dignity, but also emotional harm that had not 12

13 yet been entirely overcome. It was fortunate that they were held for only 20 hours, that they were intelligent people able to deal with what had happened to them, and that their reputations had not suffered materially. Nevertheless, the seriousness of the matter should not be underestimated, damages in the amount of R was awarded to each plaintiff. This amounts to about R today. [30] Louw s case must be compared with Manase v Minister of Safety and Security (supra) where the court took a serious view of the malicious arrest and detention of the plaintiff. He was at the time of 65 years old, married, a grandfather and a successful businessman, residing permanently in Keiskammahoek. Not only had he never been in any trouble with the law before, but he must also have been respected in the small village where he lived and conducted his business. The serenity of his life was obviously shattered by the arrest and, as he testified, the detention proved to be a traumatic experience. He was detained for a lengthy period 49 during which time he had to share a cell with criminals. Due to his arrest and detention he has lost the esteem not only of the people of Keiskammahoek, but also of his business associates. [31] The court was of the opinion that the malicious arrest and detention were the main wrongful acts committed against the plaintiff. The malicious prosecution was a natural corollary to 13

14 the previous acts. After careful consideration of all the facts, and especially the hardship, humiliation and indignity suffered by the plaintiff. The court was of the opinion that an award of general damages in the sum of R was fair and just in this case. R of this amount was allocated to the claim for malicious arrest and detention. R amounts to R today. [32] I am of the view that damages in the amount of R taking into consideration the undermentioned facts would be fair. The affront to the plaintiff s dignity, his humiliation, the restriction, his liberty, the duration of his detention, the appalling circumstances of his detention, his social standing, the absence of malice (sheer incompetence prevailed), the absence of a apology by the defendant which would have been the right thing to have done, and the limited publicity given to the detention. I do not think that the arrest and detention of the plaintiff was a principal cause of the poor relationship between him and his two elder children. The arrest and detention was wholly unwarranted. It was not caused by the plaintiff s conduct. [33] It remains for me to mention that the plaintiff, whose dignity had been invaded, was subjected to demeaning crossexamination regarding his credibility (as was his wife s) in a bid to diminish the quantum of his claim. 14

15 [34] Mr Senatle, who appeared for the defendant, put it to the plaintiff and his wife that the eviction notice had been handed to the plaintiff s Rustenburg attorney and that they were being untruthful when they denied this. However, when the docket was eventually produced after the proposition had been put to the witness it transpired that it contained, inter alia, the eviction notice. Mr Senatle submitted that perhaps the attorney had given it to the Police. This is mere speculation. Randell and Bax The South African Attorneys Handbook note at page 11 that: Among some of the Plakaats translated by J. de Villiers Roos one finds that attorneys at the Cape, in common with advocates, were not allowed to argue ( kakelen ) after the judge passed sentence; that they might not take more cases than the could expeditiously manage; that advocates could keep their hats on when the judges did, but attorneys had to be bareheaded; that pleadings should be short, without unnecessary verbiage or repetition; that no lawyer might presumptuously assert what he could not prove, and that they should attend court whether they had cases or not. [35] The plakaat refers to some rules of conduct or etiquette which are time bound. But it refers to more universal rules i.e: that no lawyer might presumptuously assert what he could not prove. It is a lesson which should be taken to heart. In the circumstances I intended awarding costs on the High Court scale even though the amount awarded falls within the 15

16 jurisdiction of the Magistrates Court. [36] In the premises: 1. The defendant is ordered to pay to the plaintiff the amount of R together with interest at the present rate from date of judgment to date of payment and costs on the High Court scale. A A LANDMAN JUDGE OF THE HIGH COURT APPEARANCES: For the Plaintiff : Mr S Botha For the Defendant : Adv Senatle Attorneys for the Plaintiff : Botha Coetzer & Smith Attorneys for the Defendant : State Attorney Date of Hearing : August 2006 Date of Judgment : 08 September