The law clearly specifies what should happen in instances when people are deprived of their liberty. “Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefore from that other person,” says Section 5(4) of the constitution. Acting on the conviction that Molepolole police officers had unlawfully detained him, Moses Tankomane approached the High Court to sue for damages from the government ÔÇô on whose behalf the officers were acting.
The matter came before Justice Dr. Zein Kebonang who, in his judgement, speaks of the “difficulty”, not of principle but of measurement regarding claims of this nature. The difficulty is that while the law makes provision for compensatory damages to be recovered in cases of unlawful detention, the established judicial interpretive tradition has not prescribed a precise mathematical formula to guide the computation of such damages. “Although different judgements have invoked various rationales for compensation, they have left the question of the ultimate basis for an award either unanswered or difficult to articulate. For instance, should a judge simply pick a figure or must he merely invoke his sense of what strikes him or her as about right? … How is the court really to determine the amount of compensation to award? The answer is not a simple one. Should a judge also, for instance, use his “situation” sense by looking around at other cases for comparative yardstick to operate as a constraint on personal judicial idiosyncrasy?
I pose these questions not because I want to engage in an academic exercise but to show the remedial difficulties in detention cases,” Kebonang asserts in his judgement. In the matter at hand, the Molepolole police suspected Tankomane, a taxi driver, of having participated in an armed robbery that took place at a Payless store in the village. They pounced upon him at a time that he had fares onboard. In a burst of combativeness, the suspect is alleged to have hurled a torrent of PG18, reproductive-organs insults at the arresting officers.
“Some of the insults, too explicit to state in this judgement, were directed at their parents,” the judgement says. Evidence led in court was to the effect that in one instance, Tankomane threatened to reverse an officer’s birth using a certain set of vulgar Setswana words. Tankomane accused the officers of wanting to kill him the same way they had one Olefile.
Ultimately, the officers bundled him off to the police station where he was interrogated about the robbery. Tankomane’s evidence was that at the start of the interrogation, he was ordered to take his clothes off, that even as he complied he was slapped around and that afterwards, the officers excessively tightened the handcuffs they put on him. He further alleged to have been taken to another room where the torture continued. By his account, he was put in a severe stress position (hands handcuffed behind his back and legs ankle-cuffed), choked, beaten and had a ball of mutton cloth stuffed in his mouth to muffle his screams. At the end of it all, Tankomane said that he could neither dress himself nor walk properly. The interrogation broke off midway because the officers had to knock off for the day. Then they made the fateful decision of detaining Tankomane because they were not done with him.
Ultimately, they couldn’t pin anything on the suspect and had to release him. Four months later, Tankomane instituted an action against the government, claiming payment of P50 000 for unlawful arrest, detention and deprivation of liberty as well as another payment of similar amount for “pain and suffering arising from the assault by the police.” He testified on his own behalf while the defendant called two witnesses. The court disallowed evidence from a defence witness to the effect that Tankomane was a suspect in another robbery in Kanye as the introduction of this evidence flouted court rules. The assault claim failed in its entirety because in the court’s judgement, Tankomane had not marshaled adequate evidence to back his case and had been “an unreliable and untrustworthy witness.”
While he had testified that he suffered injuries in his legs, private parts and buttocks from the beating at the police station, “the doctor who examined him found no injuries similar to what [he] described.” Tankomane further complicated his case by not calling the medical doctor who examined him to give evidence. Conversely, the court took a favourable view when it came to the claim relating to unlawful detention. However, while it was easy for the court to rule that Tankomane’s overnight detention represented fundamental breach of due process, it had difficulty navigating a dark corner of compensatory justice that doesn’t reveal what formula should be used to award damages. “… in the absence of a defined formula, it must be accepted that the award must also, by necessity, be arbitrary.
The fact that there is also no objective yardstick for translating non-pecuniary losses into monetary terms also means that this area of the law is a landmine open to widely exaggerated claims,” the judgement says. In arguing his client’s case, attorney Martin Dingake cited similar cases that the High Court has handled before. The judgement says that a significant number of cases cited by Dingake (seven out of 11) appear to have resulted in awards of less than P10 000, two are in the range of P10 000 and P20 000, one was at P60 000 and another (the highest so far) at P350 000. Kebonang found that based on these cases, “one can then easily conclude that there is at least, a rule of thumb or a conventionalized benchmark, of less than P10 000 in unlawful detention cases.” That led him to award Tankomane damages of P5 000, which represents only 10 percent of the amount of the money that he sued for.
Fortunately for him though, he was also awarded costs of the suit because he partially succeeded in his claim. As far as Sunday Standard could independently establish, the P350 000 award relates to a case in which a medical doctor successfully sued the state for unlawful detention. The world over, courts take into consideration a whole matrix of factors when deciding cases of this nature. Such factors include the plaintiff’s personal and professional standing; the humiliation, shame, anxiety and worry they would have suffered; capacity to enjoy life after the fact; and loss of self-esteem. Among unlawful-detention cases that are currently before the High Court is that of Sunday Standard editor, Outsa Mokone, who was arrested and detained in September last year on sedition charges. He has since filed a draft order with the court to declare that his detention was unlawful.
