Unlawful arrest and detention - quantum

SIBUSANI DLAMINI

VS

THE ATTORNEY GENERAL

Civ. Case No. 78/97

Coram S.W. Sapire, CJ

For Plaintiff Mr. Manzini

For Defendant No appearance

JUDGMENT

(18/03/99)

This is a matter in which the plaintiff sues the Government for damages arising from wrongful arrest and detention. The facts of the matter are that the plaintiff is a well-known businesswoman of some standing in the community who was arrested by the Police on a charge of murder it being alleged that she had intentionally killed the wife of a prince. After her arrest she was detained for a period of approximately 3 months before she was released with no case against her ever being prosecuted. She was held on a charge of murder which made it impossible for her as the law stands to be released on bail. She accordingly had no alternative but to remain in custody until her case was heard.

She has described the conditions under which she was held, which, to say the least, were degrading and which affected her dignity and health. There is no need for people who are held, even legitimately, to await trial to be treated with anything less than consideration and there is no reason why they should suffer the same indignities as prisoners.

But there is more to it than that. The charge of murder, which was made, had no basis in fact at all. It seems that the deceased in this case, i.e. the Princess had died from a failed abortion. There is no evidence that the plaintiff was party to the procuring of the abortion or that she had anything to do with the death of the deceased. What is worse is that even if she had been shown to be party to the procuring of the abortion, this does not mean that she had any intention to kill the woman. On the contrary it would mean that she was attempting to assist her, albeit in the commission of an offence.

The charge sheet in the Subordinate Court alleges that she did wrongfully and unlawfully and intentionally kill one Inkhosikati Penny Matsetse. It is quite clear that this allegation of intention was made without any basis of fact

The time is now long past when the Director of Public Prosecutions should make use of the Non-bailable offences order to imprison persons who, on the evidence before him, are not guilty of a non-bailable offence but may be guilty of some other offence which is bailable. The approach should be to keep people out of prison if possible granting bail to persons who on the facts have committed offences other than non-bailable offences. In the appropriate circumstances they should be admitted to bail. In this case, however, it did not happen and I refer this back to the Attorney General and to the Director of Public Prosecutions so that their conduct in these matters and the conduct of the persons who serve them and of the Police should be guided by the considerations to which I have stated.

. In this case, there was no proper basis for the holding of the plaintiff in custody in degrading circumstances for a period of three months. She is entitled to damages and the question of the assessment of damages I will advert to later.

Before doing that I want to observe that this is a trial which was regularly set down. The Attorney General who represents the defendant is not in Court. There has been no evidence led to substantiate the plea, which alleges justification for the arrest, and there has been nothing to indicate that the plaintiff’s account is not correct and to be accepted unreservedly. Some explanation for the default is owing to the court.

As far as the damages are concerned Mr. Manzini has been diligent in producing judgments of this Court and of the Appeal Court dealing with the awards of damages in these and similar circumstances. He has referred me to first of all the matter of Frank B. Magagula vs the Commissioner of Police, which was a judgment in 1992 and in that case the awards of damages are in my view pitifully inadequate. The plaintiff was awarded E1, 200.00 for assault He was awarded E2, 000.00 for damages for false imprisonment and E3, 000.00 for injuria he suffered in the hands of the defendant. He was therefore given a total amount of E7.831.55. There are of course distinguishing features but this award was in my view unquestionably low having regard to the facts of that case. I can take no guidance from the award made therein.

There is the case of Maxwell Lukhele vs the Attorney General,[1] where the plaintiff was apparently wrongfully arrested and detained on the charge of high treason. In that case the defendant was unable to justify the arrest for the treatment of the plaintiff and the Court found for the plaintiff. Having done that the judge in that case pertinently observed that in considering awards, sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in free society which should be jealously guarded at all times. There is an associated duty on the Courts to preserve these rights against infringements. These are sentiments with which I wholly agree

Unlawful arrest and detention constitute a serious inroad into the freedom and rights of an individual. The words of Broome JP in MAY v UNION GOVERNMENT2 1954(3) SA 120 at 130(f) [2]were quoted and they are: -

“Our law has always regarded the deprivation of personal liberty as a serious injury, and where the deprivation carries with it the imputation of criminal conduct of which there was no reasonable suspicion the injury is very serious indeed. ”

The plaintiff in that case as in this case was not only wrongfully arrested and detained but also had to face serious criminal charges. In that case it was high treason. In this case it is murder. The judge in that case observed that the plaintiff is, in his view, entitled to be compensated in full measure for the humiliation and indignity that resulted in the relevant circumstances. The judge went on to consider what the relevant circumstances were and he took into account that the plaintiff was a man of standing in the community and that his arrest was given a wide publicity in the two national newspapers in the country. These circumstances are present in this case too. The period of imprisonment in Lukhele’s case was a period almost three and a half months and the treatment he received was no better or no worse than that received by the plaintiff in this case. There has been no explanation as to why it was necessary to arrest this woman or why a case she should have been held so long before she was released. I have no doubt that her reputation may well have been tarnished in the public eyes and her esteem has been damaged. After considering the awards made in other cases, and after considering all the circumstances of the matter before him including the steady decline in the value of money, the judge considered a fair award in respect of general damages to be one of E50.000.00. To this amount the sum of E9.000.00 was for special damages was added. In the result the plaintiff in that case was awarded a sum of E59.000.00 with costs.

That case does approximate in many ways the case presently before me but in my view the damages to be awarded in the present case are to be on a higher scale.

I also refer to the case of Ziyane vs the Attorney General[2] which was decided by Hannah CJ. In that case the period of incaceration cannot be compared with what the plaintiff in this case has had to suffer. In that case the inconsolation was for a relatively short period of time, that is less than an hour. That was the only mitigating factor. In that case too the plaintiff was a well respected member of the community occupying a responsible position as the Principal of SIMPA. He was subjected to humiliations not present in this case but he too was held in close confinement with others, which he, like the present plaintiff not unreasonably found most offensive. The usual occupants of police cells are not persons with whom respectable people would want to be in close contact. As the learned Chief Justice observed, it is no excuse to say, “these conditions are typical of what Police cells are here in Swaziland.” The judgment was for E5 000.00 but this amount obviously does not apply in the present case where the period of imprisonment was much longer.

I also take into account that the value of money is continually on the decline and that in the four and a half years since the Lukhele judgment the value of a Lilangeni like most currencies has declined considerably. Taking all these factors into consideration, I now examine the claims, which have been made by the plaintiff. The first claim was for costs of defence on the charge and the bail application. These have not been proved and accordingly cannot be included in the award. Then there is general damages for contumelia, deprivation of freedom and discomfort and general damages for the impairment of plaintiff’s dignity and reputation. It seems to me that these two heads are really the same because contumelia includes the impairment of dignity and reputation of the plaintiff and as I have observed the deprivation of freedom and the discomfort he suffered are closely related to the impairment of her dignity and reputation. The claim arising from loss of earning and estimated loss of future earning has not been pursued so we are really left with the two claims under 9.2 and 9.3 which as I say should really be treated as one.

In my view it would be fair in view of the serious injury to the plaintiff that a substantial award be made and I have decided to award her E120,000.00 and costs.

S.W. SAPIRE

CHIEF JUSTICE

[1] case 1057/91[]

[2] 396 / 1989

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