COSTING CONTRITION
The high court has refused to sign off on a R450,000 damages settlement related to an unlawful arrest in 2018, finding R80,000 to be more appropriate
In early 2018, Tshepang Moumakwe was unlawfully arrested by police in the North West and held for four days in the Mahikeng police cells. Subsequent to his release he sued the police, claiming R600,000 in damages.
Now, it’s common for initial amounts in damages and defamation claims to be way over the top. And perhaps in that respect the parties didn’t take the figures too seriously. But what came next was almost unbelievable.
First, the police didn’t dispute that they’d acted unlawfully — that’s unusual. Then, what is even more unusual, the two sides reached an out-of-court settlement. At this point, things stopped being merely unusual and became astonishing. The police agreed to pay Moumakwe R450,000 within 30 days, failing which normal interest would be levied on the sum. They would also pay his legal costs.
The two sides further agreed that their settlement would be made an order of court. But that’s where their agreement ran into trouble. When he saw the settlement, acting judge
Andrew Reddy balked, saying it was way out of sync with the facts of the matter and with judicial thinking about such awards. He pointed out that when judges make a compromise an order of court, they have to exercise that power judicially.
According to Moumakwe’s claim, the police had forced him to lie on the ground outside his home, and arrested him in full view of his family and members of the community — for allegedly pointing a firearm at someone called “Mothusi”. He was detained for four days at the police station, where he said he suffered conditions that were “inhumane”.
Once he was taken to appear in court, however, Moumakwe was told his matter wasn’t on the roll, and he was released. Finally, some months later, he was informed that the prosecutor had declined to prosecute.
As a result of all this, he said he had suffered psychological trauma, severe emotional shock and the deprivation of liberty.
Given this background, Reddy noted that no expert reports had been provided to explain the settlement amount. Instead, the compromise had been reached without “an iota of evidence”.
The parties wanted their agreement to be made an order of court, but, said Reddy, a judge’s role is “not to simply function as a conveyor belt ... mass producing court orders that may be legally objectionable” .A compromise may only be made an order of court if it complies with the constitution and the law.
This settlement was “certainly legally objectionable”, Reddy added, being inconsistent with both public policy and the constitution.
Fair and reasonable
The right to liberty is precious and is enshrined in the supreme law, which guarantees the right not to be deprived of freedom arbitrarily or to be treated in a cruel, inhumane or degrading way, Reddy said.
Moumakwe had been deprived of his liberty, and he should be compensated for that deprivation and the attendant mental distress it caused. However, Reddy said, each case has to be decided on its own facts, and the courts have stressed that the primary purpose is “not to enrich the aggrieved party”.
The courts have also warned legal practitioners not to continue “the incredible practice of claiming unsubstantiated and excessive amounts”. Lawyers should know the “reasonable measure of previous awards” and should consider these a “barometer” when bringing claims.
It’s a fallacy that there’ sa “going rate” per day in such cases, Reddy continued, but to award amounts that are “miles apart” where the facts are similar is bad for public confidence and could lead to forum shopping.
In this case, Moumakwe must have experienced humiliation, and his four-day detention was “not insignificant”. But the court had to assess damages that were fair and reasonable to both sides, with due regard to public policy: “The public purse is not a horn of plenty.”
Given all the circumstances, R80,000 would be appropriate, Reddy held, adding that the legal costs were to be on the magistrate’s court’s scale.