THE HIGH COURT OF SWAZILAND
Case No. 832/89
the matter between:
LUBBER 1st Defendant
STORE (PTY) LTD 2nd Defendant
THE PLAINTIFF Mr. Lukhele
THE DEFENDANTS No appearance
plaintiff, a married woman who sues with the assistance of her
husband and legal guardian, alleges that she was unlawfully and
falsely arrested by the first defendant in a store in Manzini on 23rd
October 1987, at which time he was acting in the course of his
employment by the second defendant. In her particulars of claim, she
avers that in consequence of the arrest she suffered damages in the
sum of E30,000.
filed this action on 9th October 1989.
affidavit of service was defective in that it was not signed by the
server and it does not show on which of the defendants the
summons was served. Nevertheless notice of intention to defend was
given on behalf of the second defendant by an attorney. He
subsequently gave notice of withdrawal as attorney of record for both
defendants in July 1994, and later riled an affidavit of service of
that notice on the second defendant, stating in the affidavit of
service that he could not serve the first defendant who had left the
plaintiff applied for judgment by default in terms of paragraphs (a)
to (c) of the particulars of claim which sought relief against both
defendants, the one paying the other to be absolved. Judgment by
default was sought on the basis that the defendants had failed to
furnish a new address for service within ten days after their
attorney's notice of withdrawal had been served on 26th August 1994.
It seems to me that there was then a problem in that: the application
for judgment by default was signed on 29th August 1994 - in other
words before the ten day period had expired. Nevertheless it was not
filed until 30th September and in any event the plaintiff filed a
further notice of application for judgment by default (dated 24th
November 1994) on 29th November 1994.
2nd December 1994, Dunn J. granted judgment by default. I interpret
this to mean, having regard to the terms of the prayer for judgment,
that he did so against both defendants. He postponed the matter to
9th December 1994 for proof of damages.
the affidavit that she lodged subsequently for the purpose, the
plaintiff has deposed that the first defendant detained her on an
allegation that she had stolen items from the second defendant. She
has also said that she was detained in front of work mates and many
customers, and that the first defendant then marched her through the
middle of Manzini in front of many members of the public; and that at
a subsequent court trial she was acquitted because the first
defendant admitted that the items found in her possession could not
be identified as belonging to the second defendant. She says that she
was deprived of her liberty and suffered public humiliation in
consequence of the arrest.
plaintiff has not said, specifically, that she did not steal anything
from the store. Nevertheless, in my view, she does not need to do so.
A shop manager has no powers over and above those of ordinary
citizens to restrict the liberty of an individual. In particular he
has no special powers to do so because the store displays goods for
members of the public, thereby soliciting their custom. The store is
of course entitled, as in the case of any other private individual or
body, to the protection of the criminal law, but if its staff choose
to detain someone on suspicion of theft, and cannot show that they
are justified in doing so, then the store and such staff will be
liable in damages.
to quantum, there is no special rule either that a private person who
arrests someone unlawfully is liable to pay a higher amount of
compensation. There have been several decisions in this court in
recent years as to the appropriate amount. These have related to
actions against police officers. For example, in Ziyane v. The
Attorney General (Civ. Case No. 396/59) (detention for one hour in
humiliating circumstances) E5000 was awarded. In Nhlabatsi v.
Swaziland Government (Civil Case No. 1273/91) (detention for several
days) E12000 was awarded. In Lukhele v. Attorney General (Civil Case
No. 1057/91) (detention for three and a half months) E50,000 was
plaintiff, on her undisputed account, suffered the indignity of being
detained in front of people in the store and then paraded through
Manzini, as well as the ordeal of a criminal trial. In the
circumstances, I assess general damages at E8000 with interest
thereon at 9 per cent per annum and costs.
the record shows, unequivocally, is that the second defendant had
notice of the action not later than 2nd November 1993 (when its
attorney gave notice of intention to defend) and that the first
defendant had notice of it at least from 24th July 1994.
think that the appropriate orders are therefore as follows:
in favour of the plaintiff against
defendants jointly and severally, the one paying the other to be
absolved, in the sum of E8000 general damages and interest thereon at
9 per cent per annum from 24th July 1994, and costs; and
in favour of the plaintiff against the second defendant for interest
on E8000 at 9 per cent per annum from 2nd November 1993 until 24 July