J.C.A v Minister of Safety and Security (3771/2007) [2023] ZAKZDHC 101 (12 September 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2023 >> [2023] ZAKZDHC 101 | Noteup | LawCite sino index ## J.C.A v Minister of Safety and Security (3771/2007) [2023] ZAKZDHC 101 (12 September 2023) J.C.A v Minister of Safety and Security (3771/2007) [2023] ZAKZDHC 101 (12 September 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2023_101.html sino date 12 September 2023 # SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy # # NOTING JUDGMENT NOTING JUDGMENT CASE NO:3771/2007 In the matter between: # J[…] C[…] A[…] J[…] C[…] A[…] # PLAINTIFF PLAINTIFF and # MINISTER OF SAFETY AND SECURITY MINISTER OF SAFETY AND SECURITY # DEFENDANT DEFENDANT Delivery Date:                                      12 December 2023 In Court : FF Time : 9:30 Judge Delivering Judgment: Judgment Written By: S Singh AJ Judgment Delivered By:                        Mathenjwa J Judgment Pages: 07 Dissenting/ Concurring Judgment Pages : 0 Total : Secretary:                                             O Ngalonkulu ## IN THE HIGH COURT OF OSUTH AFRICA IN THE HIGH COURT OF OSUTH AFRICA ## KWAZULU-NATAL LOCAL DIVISION, DURBAN KWAZULU-NATAL LOCAL DIVISION, DURBAN Case No:3771/2007 In the matter between: ## J[…] C[…] A[…] J[…] C[…] A[…] ## PLAINTIFF PLAINTIFF and ## MINISTER OF SAFETY AND SECURITY MINISTER OF SAFETY AND SECURITY ## DEFENDANT DEFENDANT ORDER 1 The defendant shall pay the sum of R9 887 860 into the trust account of the plaintiffs attorneys N.G Pillay and Company within 30 days of this order, for and in respect of the plaintiffs loss of earnings (R9 237 860) plus general damages (R650 000). 2 The defendant shall pay interest on the outstanding amount, which is to be calculated at the prescribed rate per annum from date of this order of court to date of final payment. 3 The defendant shall pay the taxed legal costs of the plaintiff on an attorney- client scale exclusive of the costs of all the experts and counsel of the plaintiff. ## JUDGMENT JUDGMENT ### S Singh AJ S Singh AJ Introduction [1] This is an action by the plaintiff for damages for his unlawful arrest, detention and malicious prosecution. The two heads of damages are past and future loss of earnings and general damages. ### Issuesanddisputes Issues and disputes [2] In 2018, the defendant conceded liability for the merits of the plaintiff's claims. The issues for determination by this court are for quantum. [3] The defendant disputes the following facts:- (a) That the plaintiff has documentary proof of his employment pre-morbid as a trainee valuator who earned R12 000 per month ; and (b) The plaintiff's expert reports and oral testimonies are supported by documentary proof in respect of the damages claimed by the plaintiff. [4] The defendant however has no expert reports or any evidence to contradict the plaintiff's expert reports and oral testimonies. The defendant also failed to comply with an order of court to deliver any summary evidence of experts by or before 8 November 2022. The lack of such evidence renders the said disputes and opposition by the defendant as unreliable, factually unsubstantiated and of no legal value. [5] The various experts and expert reports evidences the damages claimed by the plaintiff. ### Loss of earnings Loss of earnings [6] Professor Lazarus, the clinical neuropsychologist who interviewed and assessed the plaintiff confirmed in court that he had documentary proof of the plaintiff's pre-morbid employment as a certificated trainee valuator at Gelman & Associates, a valuator office. This expert further confirmed that the plaintiff's physical, mental and sexual traumatic episodes of assault and abuse including being photographed publicly as a result of his unlawful assault, detention and removal from his usual routines in life has impacted the plaintiff seriously and continuously thereby causing the plaintiff, post­ morbid, to be unable to work, study, socialise or lead a normal life. [7] Professor Buitendach, the industrial psychologist who interviewed and assessed the plaintiff confirmed in court that she had documentary proof of the plaintiff's pre-morbid employment as a certificated trainee valuator officer. This expert further said that: - (a) The plaintiff had told her that his pre-morbid earnings were R12 000 per month; (b) She checked and verified his said earnings which is documented in the relevant government gazette as the earnings of a trainee valuator at the time concerned; and (c) She agreed with the medical doctor, Dr Bridgemohan's findings which she observed in the plaintiff who suffers from various post-morbid physical, emotional and psychological disabilities as a result of the police incidents which have caused the plaintiff to be in continuous unemployment, post morbid, and also unable to advance his education. [8] Doctor Bridgermohan, the general medical doctor of the plaintiff, who interviewed and assessed the plaintiff confirmed in court that the plaintiff had serious personal, physical, emotional and psychological disabilities with no prospect of recovery post-morbid the said police incidents which included sexual abuse in detention. The witness further confirmed that the plaintiff is severely traumatised, unstable physically due to injuries to the right side of his body, and also mentally unstable due to brain injuries, all of which are due to the said police incidents which prevent the plaintiff from adjusting back to his pre-morbid normal life in all spheres of his life including his inability to work, study or socialise. [9] Mr Loots, the actuary who interviewed and assessed the loss of earnings of the plaintiff and whose actuarial report was handed in to court by consent between the parties, confirmed the current total loss of earnings of the plaintiff up to the age of 65 is in the amount of R10 851 129. [10] Accordingly, after deduction of contingencies applicable to the pre-morbid and post-morbid earnings of the plaintiff , the plaintiff ' s loss of earnings is calculated as follows : - (a) Pre-morbid (before February 2002) Past loss of earnings (R12 000 per month) R144 000 5% contingency R7 200 Total R136 800 (b) Post morbid (after February 2002) Future loss of earnings (2002 up to 2037 , age 65) R10 707 129 15% contingency R1 606 069 TOTAL R9 101 060 The total loss of earnings (pre and post-morbid) of the plaintiff is therefore R9 237 860 . ### General damages General damages [11] I turn now to deal with the fair and reasonable award of general damages which is claimed by the plaintiff in the maximum amount of R650 000 . The factors considered by this court include : the duration of the deprivation of liberty of the plaintiff who was incarcerated unlawfully for a day upon his first arrest and detention , and had to attend court on multiple days over a period of time , then charges were withdrawn after which he was rearrested and charged again , and had to re-appear in court on multiple occasions until the charges were withdrawn again due to lack of evidence . [12] There was no reasonable and probable cause for the police to initiate or instigate the prosecution in its own part against the plaintiff. As such, the said charges were maliciously instigated twice with an animus injuriandi by the police instigators, who had also unlawfully arrested and detained the plaintiff, and the said cases were concluded in favour of the plaintiff (see Minister of Justice and Constitutional Development v Moleko [2008] 3 ALL SA 47 (SCA)). The Constitutional Court has held that in these sorts of cases, 'damages are awarded to deter and prevent future infringements of fundamental rights by organs of state. They are a gesture of goodwill to the aggrieved ... '. [1] [13] The court must consider the nature and importance of the constitutional rights in issue . In this case , such rights include- (a) The right to dignity which s 10 of the Constitution protects ; (b) The right to freedom and security which s 12 of the Constitution protects . This includes the right not to be arbitrarily or without just cause deprived of freedom ; (c) The right to privacy which s 14 of the Constitution protects ; and (d) The rights which are protected bys 35 of the Constitution . The award will reflect and be commensurate with the aforesaid rights of the plaintiff. [2] [14] Further cases that were considered include: - (a) Olivier v Minister of Safety and Security and another 2009 (3) SA 434 (W) in which the court made an award with a current value of R83 707 for the public arrest and detention for six hours of a police officer where he worked; and (b) Nqweniso v Minister of Safety and Security [2012] ZAECGHC 84 in which the court made an award with a current value of R128 424 for deprivation of liberty of approximately 20 hours in unhygienic conditions in circumstances where the plaintiff suffered the indignity of arrest at work in the presence of colleagues for alleged theft. [15] The circumstances of the plaintiffs claim , the breach of his constitutional rights , publication of his photographs in the newspaper , humiliation and severe post-morbid sequelae of injuries and traumas of a physical , mental and emotional lifelong effect are at a much higher level which is indicative of a far greater award as proposed by the plaintiff's counsel. In arriving at this amount , counsel also referred to previous cases as a guide as well as the expert reports and evidence and correctly submitted that this court may have regard to previous cases but must consider the facts of this case pertinent to the plaintiff, as well as the lack of expert reports and evidence for the defendant. Order [16] Accordingly, the following order is made- 1 The defendant shall pay the sum of R9 887 860 into the trust account of the plaintiff's attorneys N . G Pillay and Company within 30 days of this order , for and in respect of the plaintiff's loss of earnings (R9 237 860) plus general damages (R650 000). 2 The defendant shall pay interest on the outstanding amount , which is to be calculated at the prescribed rate per annum from date of this order of court to date of final payment. 3 The defendant shall pay the taxed legal costs of the plaintiff on an attorney- client scale exclusive of the costs of all the experts and counsel of the plaintiff. # S SINGH AJ S SINGH AJ APPEARANCES Counsel for the plaintiff : NG Winfred Instructed by : NG Pillay and Company Counsel for the defendant NM Naidoo Instructed by The State Attorney Date of hearing 23-26 October 2023 Date of judgment 12 December 2023 [1] Mahlangu and another v Minister of Police 2021 (2) SACR 595 (CC) para 50. [2] Minister of Safety and Security v Tyulu (2009] ZASCA 55; 2009 (5) SA 85 ; 2009 (2) SACR 282; [2009] 4 ALL SA 38 (SCA) para 26. Cited with approval in Mahlangu supra para 51. sino noindex make_database footer start