Cape Town - The Minister of Police has been ordered to pay a woman who was unlawfully arrested and detained R120 000 in damages and cumulative interest on the amount.
Avril Diljan was arrested on September 18, 2015 after police had responded to a malicious damage to property complaint in Eldorado Park.
According to information, “Peace officers constables Ntombela and Tsile were on patrol duty when they received a call from the Community Service Centre (CSC) informing them that Diljan had thrown stones and rubbish on her neighbour’s carport from her first floor window.
“The officers were unanimous in their view that an offence of malicious damage to property had been committed by the appellant. As a result, they immediately arrested and subsequently detained her in the holding cells at the Eldorado police station. Both officers testified that they detained the appellant because they were satisfied she had committed an offence listed in Schedule 1.
“They further testified they had no power to release her either on warning or on bail. They asserted that only members of the detective branch and, in particular, the assigned investigating officer were vested with such powers,” court documents read.
After being arrested on the Friday, Diljan was released from custody on the Monday, without appearing in court. Diljan, during trial, testified that the conditions under which she was detained were appalling.
SCA appeal documents read that the peace officers had not exercised the discretion vested in them as required by law and SCA judge Mandela Makaula said they effected an arrest under a “mistaken belief” not knowing they had a discretion.
“Constable Ntombela testified that he could not have warned the appellant because he ‘did not have powers’ to do so. In the same vein, Constable Tsile stated the following: ‘Unfortunately we do not have those powers because it is a different department’.
“Accordingly, that they did not exercise a discretion that they unquestionably enjoyed is beyond dispute. It must therefore follow axiomatically that both the arrest and subsequent detention of the appellant were unlawful,” said Makaula.
Determining costs for damages suffered by Diljan, but also to avoid the police ministry being “treated as a ‘cash-cow’ with infinite resources”, Makaula said: “The acceptable method of assessing damages includes the evaluation of the plaintiff’s personal circumstances; the manner of the arrest; the duration of the detention; the degree of humiliation which encompasses the aggrieved party’s reputation and standing in the community; deprivation of liberty; and other relevant factors peculiar to the case under consideration.
“A word has to be said about the progressively exorbitant amounts that are claimed by litigants lately in comparable cases and sometimes awarded lavishly by our courts. Legal practitioners should exercise caution not to lend credence to the incredible practice of claiming unsubstantiated and excessive amounts in the particulars of claim. Amounts in monetary claims in the particulars of claim should not be ‘thumb-sucked’ without due regard to the facts and circumstances of a particular case,” said Makaula.
Cape Times