After peacefully protesting outside a police station, 11 protesters were arrested and detained for three days “without probable cause or provocation”. After their release, they sought R11m in damages from the police, including police minister Bheki Cele, for this “egregious infringement” on their rights.
The Johannesburg high court on Tuesday found in favour of the protesters, but lowered the total to R330,000 with interest, after the state did not file any papers opposing the protesters’ claim.
Background
The SA Police Service (SAPS) apparently engaged in “violent and brutal conduct” in suppressing the protest in August 2019. Later in the day, members of the same community, the plaintiffs in the case, went to the Norwood Police Station to protest against SAPS’s earlier conduct.
In response to this second protest, SAPS again acted incorrectly “without probable cause or provocation”, the court said. The protestors were detained for three days, until the National Prosecuting Authority refused to prosecute and they were released. The protesters allege that SAPS tried to bring spurious charges against them but the prosecutors could find no laws that were broken.
In 2022, the protesters began legal proceedings to sue the police and relevant state officials, including the minister, for R11m.
In response, the state attorney initially indicated the state would be opposing. However, despite this initial indication, no papers were filed opposing the protesters’ claims, even after their lawyers send further notices to the state attorney.
But just because the state essentially did not oppose, did not mean the court would automatically grant the protester’s relief. The court still had to examine the case, without the benefit of opposing papers, evidence or counsel.
The High Court’s findings
On Tuesday, acting judge Bart Ford found in the protester’s favour, but could not agree to the R11m the protesters wanted for the suffering they had endured. Though he was sympathetic to the protesters, a balance had to be struck.
In explaining his ruling, Ford wrote: “The willy-nilly, baseless and often soul-destroying conduct of arrests, when there is no probable cause, cannot be allowed to continue unfettered and drastic steps need to be taken to avoid this disgraceful state of affairs.”
Examining the facts, “there can be no doubt that their arrest was not only unlawful, but it was humiliating and baseless.” The protesters “had their freedom and security of person deprived in a most objectionable manner and suffered damages as a result.”
He labelled it a “disgrace” when a person “abuses the authority, imbued on him, by virtue of a constitutional designation”.
He concluded the protesters had clearly demonstrated the police had unnecessarily and unlawfully detained them, without cause. As a result of this unlawful conduct, the protesters had suffered in jail cells for days. They said they endured “abuse”, reputational damage, and general harm. Their rights to dignity, freedom and speech were infringed.
“These rights,” Ford wrote, “were violated by persons who ought to have protected them.”
However, Ford still had to grapple with what the court should do in response to this. Courts, he said, cannot let sympathies for the injured lead to the impoverishment of the perpetrator. Or, in the colourful language of an earlier judgment Ford cites, the court “must not pour out largesse from the horn of plenty at the defendant’s expense”.
Further, a court’s primary purpose in awarding damages is not to “enrich” harmed people but to compensate for the suffering they endured.
He then referenced previous court judgments, where people — even the elderly — had been detained unlawfully for days a time. As a result, he was bound not to stray too far from the amounts awarded in those previous judgments.
Ford noted that in 2022, the Supreme Court of Appeal had chastised the High Court for issuing “exorbitant amounts”. He wanted to avoid such a future possible finding.
For that reason, he reduced the total claim of R11m — R1m per protester — to R330,000 (R30,000 per protester). The state was ordered to pay this “on or before September 30 2023”.
The state was also ordered to pay the legal costs.
As Business Day previously reported, SAPS had said in its 2021/22 annual report, it had paid out R470,499,128.38 in similar civil claims.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.