Court name
High Court of eSwatini

Mbhamali v Swaziland Government () [2000] SZHC 92 (31 October 2000);

Law report citations
Media neutral citation
[2000] SZHC 92
Coram
Sapire, CJ









1


SWAZILAND
HIGH COURT


James
Mbokodvo Mbhamali


Plaintiff


Vs


Swaziland
Government


Defendant


Civ.
Case No. 1357/96


Coram Sapire,
CJ


For
Plaintiff Mr. Thwala


For
Defendant Ms Sikhondze


JUDGMENT


(31/10/2000)


This
is a matter in which the plaintiff sues the Government for damages
arising from wrongful arrest and detention. The facts of the matter
are that the plaintiff, a young man aged approximately 30 years at
the time was arrested on of charges arising out of the death of an
individual in the Republic of South Africa.


The
charge against him was one of attempted murder and from the date of
his arrest to the date on which he was released, a period of more
than two months


2


elapsed.
At that time there were no extradition papers served on the accused,
he was never brought before the Magistrate, the question of bail
never arose and there is no indication before the court as to what
prompted his release after this extended period in custody.


He
was held originally at the police cells and later transferred to the
prison at Big Bend. Neither of these places offered desirable or
comfortable accommodation and one can accept that the stay there was
degrading and humiliating. I have previously observed that there is
no need for people who are held even legitimately to await trial to
be treated with anything less than consideration and there is no
reason why they should suffer the same indignities privations and
hardships as prisoners who are already convicted.


The
defendant has not denied liability and has only contested the amount
of damages. I have heard the plaintiff testify as to his damages. I
am satisfied that he is a perfectly decent man. Although not enjoying
a prestigious position in society he is nonetheless respected. He at
least enjoyed this respect before his incarceration. To be treated
like a convicted criminal is a grave denial of his rights.


He
was a photographer earning some E100.00 per week. By reason of his
incarceration he directly lost 10 weeks income. After his release he
had to re­establish his business and it would be proper in these
circumstances to allow him compensation for a further 10 weeks at a
reduced amount which would be make an award of E6 000.00 fair.


As
far as general damages are concerned, I have regard to but am not
bound by 'awards in similar previous cases.


In
Sibusani Dlamini vs the Attorney General1 I awarded damages in very
similar circumstances. In that case the period of detention was 3
months. The difference on this account have to affect the amount of
damages I awarded. In many other respects the cases are similar and
the considerations to which I referred are

1
Civil Case No. 78/97


3


apposite
in the present case. In the case I referred to I reviewed a number of
judgments and indicated therein differences from and similarities to
the present circumstances.


I
also referred to the words of Broome JP in May vs the Union
Government2


"I
have always regarded the deprivation of personal liberty as a serious
injury, and where the deprivation carries with it the imputation of
criminal conduct of which there was no reasonable suspicion the
injury is very serious indeed "


The
considerations which prompted me to make an award of damages in the
previous case are present in the instant case. The basis of the award
in that case having regard to the fact that the period of
incarceration was 1 month less than that in the previous case, an
award of general damages in the amount of E50 000.00 is apposite to
which must be added the amount awarded in respect of the loss of
income. Therefore the judgment to the plaintiff in the amount of E56
000.00 and costs.


SAPIRE,
CJ


1
Edited


2
1954(3) SA 120 @ 130(F)