R1 MILLION FOR UNLAWFUL ARREST AND DETENTION
Khedama v Minister of Police [2022] D13841-2013 (KZD)
Ms Khedama claims R1 million as damages for being unlawfully arrested and detained by the police. The police contended that they had acted within their powers, as a warrant of arrest had been issued by a magistrate for failure to attend court on a charge of fraud. In 2018 an order was granted by consent of the parties that the Minister compensate Ms Khedama for her proven damages. The matter then came before the court for the determination of quantum.
Lopes J discusses how she was arrested at the airport on the way to an international business trip, when she was in the company of her boss and his wife; the allegations that the police made comments about “kwerekwere” in relation to her boss and her boyfriend; the conditions in the police cell; the transfer between police stations; the conditions in the days spent before she could secure bail; and the trauma suffered and the effect on her personality.
* See para [22] on the police not taking the time to verify that she was the correct person sought, such as by taking her fingerprints; refusal to grant her an opportunity to apply for bail; her continued detention; the conditions of the long journey; and the circumstances of her imprisonment.
* See para [26] for the breakdown of the damages and from [27] on interest.
The Minister is directed to pay R1 million plus interest at the rate of 15.5 percent per annum calculated from the 20th December 2013 to date of payment.
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STOLEN GOODS AND EXEMPTION CLAUSES
Schenker South Africa v Fujitsu Services Core [2022] ZASCA 7
Fujitsu concluded an agreement whereby it would, at its request, use Schenker’s services for warehousing, distribution and forwarding. One of Fujitsu’s consignments of computer equipment was flown in from Germany and was handled by Schenker. At the SAA cargo warehouse, a Schenker employee loaded the equipment on an unmarked truck and stole it. Schenker conceded in the High Court that, at the time of theft, the employee had acted within the course and scope of his employment. Fujitsu was successful in its claim for damages of USD 516,877 against Schenker.
Phatshoane AJA discusses the exemption clause in the agreement; the High Court’s finding that the employee was not executing the contract when he stole Fujitsu’s goods and that the theft was an act outside the performance of the agreement, so the exemption clause did not apply. The crux of the appeal was whether on a proper construction of the agreement, Schenker’s liability was exempted.
The court discusses the case law and finds that Schenker established that its liability was excluded by the pertinent clauses. The appeal is upheld and the order of the High Court replaced with one dismissing the claim.
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PRIVATE PROSECUTION FOR MURDER
Hendricks v Asmal [2021] A73-19 (WCC)
Rochelle Naidoo was in a romantic relationship with Faizel Hendricks. She died from a single gunshot wound delivered while the barrel of the gun was in her mouth, when Mr Hendricks was in the same house. The DPP declined to prosecute, so the deceased’s mother instituted a private prosecution. He was found guilty of murder and sentenced to 15 years’ imprisonment. Mr Hendricks, represented by his counsel, had testified at the inquest, but at the trial he exercised his right to remain silent. Mr Hendricks appeals his conviction and the question was whether the deceased committed suicide as alleged by Mr Hendricks, or whether she was shot by him.
Kusevitsky J discusses the evidence at the inquest; the evidence of the ballistics expert and the medical evidence; the evidence relating to the police officers; whether the overall pattern of injuries supported suicide or homicide; the post mortem report; whether the private prosecutor cross-examined her own witness [60]; and the actions of Mr Hendricks after the death of the deceased [117].
The appeal against the conviction is dismissed. The sentence is confirmed.
(Fortuin J concurred.)
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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