• In June 2017, a refugee went to a Department of Home Affairs office to
apply for the re-issue of his refugee papers that had been stolen
during a robbery.
• Instead of getting help, Ntahompagaze Abdul was
arrested by Home Affairs officials on a charge of being an illegal
immigrant and detained for 13 days.
• The Gauteng High Court in
Pretoria has ordered that the minister of Home Affairs pay R300 000 to
the refugee for the unlawful arrest and detainment.
The Gauteng High
Court in Pretoria has ordered the minister of Home Affairs to pay R300
000 to a refugee who was unlawfully arrested at one of the department`s
offices after he tried to apply for a re-issue of his refugee papers
that had been stolen.
On 7 June 2017, Ntahompagaze Abdul was arrested
on a charge of being an illegal immigrant after he went to the
Department of Home Affairs (DHA) officers in Marabastad, Pretoria, to
apply for his refugee documents - which he had lost during a robbery
three days earlier.
According to a judgment handed down earlier in
May, Abdul was arrested by members of the DHA. After that, he was handed
over to members of the SA Police Service at the Pretoria Central Police
Station, where he was detained for 13 days.
On 20 June 2017, Abdul was released when it was discovered that he had been mistakenly arrested, Judge Elizabeth Kubushi said.
`As
a result of such arrest and detention, the plaintiff [Abdul] is said to
have suffered an infringement of his right to physical and
psychological integrity and physical liberty,` Kubushi said.
`The
plaintiff has, consequently, instituted action for unlawful arrest and
detention against the minister of home affairs and the minister of
police. The matter is defended.`
The matter was initially set down for trial in May 2020, where it was partially settled.
`Among
others, the following was by agreement between the parties made an
order of court, namely, that (a) the defendant [minister of home
affairs] concedes liability in respect of the plaintiff`s 100% proven or
agreed damages; (b) the claim against the minister of police is
withdrawn; and (c) the quantum is postponed sine die [with no appointed
date for resumption].`
Kubushi said Abdul was claiming R13 000 for
loss of income and general damages of R400 000, which was later
increased to R600 000.
`During oral argument, the plaintiff`s counsel
included a further claim for future medical expenses and related
expenses in respect of the treatment of depression and anxiety.`
Post-traumatic stress disorder
As
part of the matter, Abdul submitted medical reports by psychiatrists
and psychologists, which spoke about his mental state following the
arrest and detention.
Two specialist psychiatrists who independently
examined Abdul agreed that, due to his arrest and subsequent incidents,
he suffers from major depressive disorder and post-traumatic stress
disorder (PTSD).
`The psychiatrists agree that the plaintiff requires
psychiatric treatment and management. They also agree that the
plaintiff suffered trauma physically, emotionally and economically, but
does not require protection on psychiatric grounds.`
Two clinical
psychologists said Abdul`s unlawful arrest and incarceration had left
him with a range of physical, emotional and psychological difficulties
directly occasioned by the trauma of his experience in custody.
General damages
Kubushi
said from the medical reports, it could be determined that, during his
detention, Abdul could not make a phone call to inform anyone that he
was incarcerated, which made him anxious.
He also could not make a phone call to get his medication brought to him.
The reports said:
During the time he could not take his medication, he developed rashes on certain parts of the body.
Abdul
further told the experts that he was locked up with other inmates in a
dirty, smelly holding cell with only one open toilet wherein when any
person wanted to relieve themselves, they would have to do it in full
view of others.
The minister of Home Affairs` counsel contended that Abdul was held at a police station and that prison would have been worse.
It
was also argued that Abdul`s PTSD, anxiety disorder and major
depressive disorder could not solely be a result of his arrest and
detention because he is from a country that experienced war in the past,
which caused his parents to flee to South Africa.
Based on case law
and the facts before the court, Kubushi said the R600 000 claimed by
Abdul as compensation for general damages was excessive.
`A fair,
reasonable and appropriate amount to compensate the plaintiff in the
circumstances of this matter is R300 000,` Kubushi said.
The court dismissed Abdul`s claim for loss of income as a hairstylist.
Meanwhile,
the claim for future medical expenses and related expenses was
postponed as Abdul`s legal team asked for a postponement to amend its
application for such a claim.