Avril Diljan has been awarded R120 000 compensation after a ruling by the Supreme Court of Appeal. Her arrest and detention in a filthy police cell came after two constables on patrol duty received a telephone call from the Community Service Centre regarding a complaint lodged by a certain Ms. Goliath in Eldorado Park.
The officers proceeded to the address, and when they got there, Goliath alleged that Diljan had damaged her carport by throwing stones and rubbish through her first-floor window. The officers inspected the carport and saw that it was damaged. They decided that Diljan was guilty of malicious damages to property. She was arrested and detained in the holding cells at the Eldorado police station.
The officers later testified they had no power to release her either on warning or on bail. According to them, only members of the detective branch and, in particular, the assigned investigating officer, were vested with such powers. Diljan testified that the officers asked her to accompany them to the police station under the pretext that they were to discuss the complaint lodged against her by Goliath.
At the police station, she was thrown into a cell, without being informed of the charge against her. She was not allowed any visits from family or friends during the three days she was detained in the cell. After the third night, she was told she could go home, without ever appearing in a court.
Supreme Court judge Mandela Makaula found her arrest and detention unlawful, as the officers who had arrested her, in fact, did have the discretion to warn her to appear in court, without arresting and detaining her. The fact that they did not know they had this discretion, did not make their actions lawful.
While it is not known how much Diljan initially claimed in damages, Judge Makaula said “a word has to be said about the progressively exorbitant amounts 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”, he said.
“Amounts in monetary claims in the particulars of claim should not be ‘thumb-sucked’ without due regard to the facts and circumstances,” he said.
The judge further warned that damages claims were not to enrich aggrieved people, but simply to compensate them for the injustice done to them. Institutions such as the police ministry, should not be treated as “cash cows” with infinite resources, he said. “The compensation must be fair to both parties,” the judge said.
In finding that R120 000 was fair in this case, the judge took into account that the condition of the police cell in which she was detained was unsanitary with no hot water; the blankets were dirty and smelly; the toilet was blocked and she was not given toilet paper. She could also not eat the bread and peanut butter – the only food provided to her.
The humiliation she endured at the time of her arrest, which was exacerbated by the presence of her neighbours and grandchildren, was also taken into account, the judge said.