Luhlanga v Malinga (NULL) [1994] SZHC 88 (15 November 1994);

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IN THE HIGH COURT OF SWAZILAND


HELD AT MBABANE


CIV. T. NO. 817/92


In the matter between:


DONALD LUHLANGA Plaintiff


And


ERIC MALINGA Defendant


CORAM : A.F.M. THWALA


FOR PLAINTIFF : MR. MADAU


FOR DEFENDANT : MR. LANDMARK


JUDGMENT


15/11/94


In this case the Plaintiff is applying for a default judgment and he claims the following from the defendant:


  1. Payment of the sum of E200.000 being damages for unlawful and intentional arrest of the Plaintiff on the 4th February, 1994.

  2. Payment of E50,000 being damages for unlawful and intentional arrest of the Plaintiff on 18th February, 1991.

  3. Payment of the sum of E50,000 being damages arising from publication of statements which were defamatory to the Plaintiff on 19th February, 1991.


The Plaintiff applies for default judgment against the defendant who is a police officer in the Manzini District Headquarters.


2


The claim arises from the interrogation by the police of the Plaintiff in a murder case in 1991. The defendant was the senior officer in the investigation team.


The Plaintiff was called by the Manzini police on 4th February 1991. They wanted to interview him about the murder. For unknown reasons he was kept in police custody for four days. The defendant was in charge of the investigating team. He was not acting in his personal capacity, but during the course and scope of his employment. The Plaintiff chose to sue him personally because his claim against Government was time barred. He was again called by the police on 18th February, 1991 and was kept for twelve hours. The Plaintiff also claimed damages for defamation which he abandoned during the hearing because he was unable to prove the Shwama custom.


It is not disputed, although the action was not defended at the trial, that the Plaintiff was detained for four days without being charged. In his evidence he states that he was not given food for the first two days. His relatives were not allowed to see him. He slept on the floor and sometimes slept on the benches or chairs. He was again called on the 18th February, 1991. Me was kept for twelve hours and was released without being charged. The court is unable to decide whether this was a reasonable period in the circumstances because this is an application for default judgment.


The Plaintiff has established that his arrest and detention for the two periods were unlawful because he was not charged.


3


The defendant had not come to court to justify Plaintiff's


detentions over the two periods (SEE ZIYANE V ATTORNEY-GENERAL CIVIL CASE NO. 396/89 AND AUTHORITIES QUOTED THEREIN).


This is unfortunate because the defendant is now sued in his personal capacity. It is clear that the defendant as a police in charge of the investigating team detained the Plaintiff during the course of investigation of a murder case. It is also clear that the proper defendant is the government. The Plaintiff decided to sue the present defendant because his claim against the Government was then prescribed. It is unfortunate that the defendant did not give the summons to the Commissioner of Police who could hand it to the Attorney-General to ask the Ministry of Labour to pay for the defence of the defendant.


The court must now decide the quantum of damages to award to the Plaintiff for the unlawful detention over the two periods. The Plaintiff was supposed to be helping the police in their investigation but the police did not exercise their powers correctly. To a certain extent, a citizen may be asked to help the police. It can be stated to him that he is asked to help and not that he is not going to be charged. As the matter is not defendant, the evidence of the Plaintiff had gone unchallenged as far as the treatment he received in the four and a half days. I call the 18th of February a half day. In Ziyane's case, the Plaintiff was detained for one hour but his detention was accompanied by circumstances very humiliating to him. CJ. Hanna awarded E5000. In SHEPHERED MELUSI NHLABATSI vs THE GOVERNMENT OF SWAZILAND CIV. CASE NO. 1273/91 the detention was for a period of four days. The C.J. Hull awarded E12,000. In the above two cases, the Plaintiffs had sued Government, not the police in their personal xxxcities. Government defended the actions. The court heard both sides.


4


In the present case the Plaintiff delayed until his claim against Government was prescribed. He then sued the defendant in his personal capacity. I must not be understood to be saying the Plaintiff had no right to sue the defendant. Taking into account the number of days spent in detention by the Plaintiff and that if the police had exercised their powers properly, this action should not have come before the court. I award the damages in the sum of E10.000 for the four and a half days.


I therefore enter judgment for E10.000 damages for the Plaintiff with costs


A.F.M. THWALA


JUDGE