Durban — An Eastern Cape woman is challenging a recent full court decision that slashed her R1 million damages award, previously by the Durban High Court, to R350 000.
The award was made to Cynthia Nobuhle Khedama in January 2022 after police admitted they wrongfully arrested her and caused her suffering during 10 days of detention.
Khedama, who was 30 when she was arrested at Durban’s King Shaka International Airport in December 2011, approached the Supreme Court of Appeal (SCA) for relief last month.
In documents lodged with the SCA, Khedama, represented by attorney Abdul Shaikjee, said the full court’s decision to reduce the R1m compensation, handed down by Judge Graham Lopes was akin to apartheid-style court rulings where the purse of white rulers was protected.
The minister of police appealed Judge Lopes’ decision. It went before the full court sitting in Pietermaritzburg, headed by KwaZulu-Natal’s Judge President, Thoba Poyo-Dlwati.
The ruling was made in March.
Judge Poyo-Dlwati also ruled that the interest on the compensation award remained at 15.5% a year and must be calculated from January 2022, the date when Judge Lopes made his judgment, and not December 2013, the date on which summons was issued to police.
Khedama was a sales manager working for a chain of Durban fashion boutiques.
She was due to travel with the Cameroonian owner and his wife to Europe and the Middle East on a fashion-scouting mission for their stores.
They were in the boarding lounge when police questioned her about fraud matters pending against her.
Based on their suspicion she might be a drug-runner, Khedama said her suitcase was searched in the open and the contents had fallen onto the floor.
Khedama said she was taunted about associating with “kwerekwere” (foreigners).
She was questioned in a room at the airport for two hours, handcuffed and taken to the Tongaat police station where she was kept in a “cold and dirty” cell.
She briefly appeared at the Verulam Magistrate’s Court and was informed that she would be moved to Cape Town regarding the fraud charges.
The trip to Cape Town was a prolonged three days and she was subjected to more appalling holding cell conditions.
She appeared at the Philippi Magistrate’s Court on December 11, 2011, and police established her fingerprints did not match those of the person they were looking for.
Khedama was granted bail the next day and asked to return.
During her entire time in detention, Khedama was not afforded a bath, change of clothes, had hardly eaten and was unable to sleep.
On her return, she got confirmation that she was not the person police sought.
Khedama, who testified before Judge Lopes, told the court she suffered severely in detention and it had broken her as a person and she chose to commit suicide, but her attempt failed.
She was demoted at work and had to win back the confidence of her boss.
She did, and was on another planned overseas trip with her boss when she was approached by the same two police officers at the airport, and questioned once again.
Khedama explained the Cape Town occurrences and although the officers said they were “joking and just wanted to know what happened”, she was afraid she would again suffer the same fate.
Clinical psychologist Dr Ebrahim Chohan told Judge Lopes that even though he consulted with Khedama nine years later, he was convinced she would have had symptoms of anxiety and other adverse effects, and could have committed suicide.
Chohan said he had done tests which confirmed that she did not exaggerate her suffering, as suggested by the State’s medical expert, who then conceded that Chohan’s assessment was correct.
Judge Lopes found that police’s treatment of Khedama had been “appalling”, her constitutional rights were ignored and she was a credible witness.
Why police did not make the effort initially to verify Khedama’s identity puzzled Judge Lopes.
He viewed the police questioning her for the second time at the airport as being “malicious”.
Judge Lopes quantified the damages suffered to be more than R1m but granted her compensation for the amount she claimed.
He cited various pieces of case law justifying interest to be paid on the date on which summons was served.
Judge Poyo-Dlwati said the issues they had to determine was whether Judge Lopes’s award was “palpably excessive”; R1m damages and the date from which interest should be calculated.
She agreed Khedama’s experiences were traumatic and police acted maliciously. However, she cited case law to support the court’s view that the primary purpose when assessing the quantum of damages was not to enrich the aggrieved party but award compensation in the form of a solatium for injured feelings.
She also cited instances where lesser compensation was paid to victims of “even more horrific circumstances”. Therefore, she found R350 000 to be appropriate and ruled that interest be calculated from January 2022.
Shaikjee supported his client’s action with an affidavit highlighting purported flaws in the full court’s ruling, which included its understanding of Judge Lopes’s method of calculating the award.
He said Judge Lopes based his ruling on case law and considered the “breach of constitutional rights” by the police officers including the xenophobia expressed by the use of the word “kwerekwere”, which heightened Khedama’s fears and trauma.
“It was a rationally informed calculation.”
Shaikjee said Chohan’s experience made him an authoritative expert, and Khedama ultimately lost her job and was now a housewife.
He said the solatium as a principle of law in damages assessment reigned from colonial apartheid regimes that controlled the country until 1994.
“This principle yielded a pittance of compensation to the black populace for legal claims of brutality and aggression.”
Shaikjee said in the last 29 years there had been no manifest reformation or development of common law process to adjudicate damages cases against the minister of police, and it was time to “open the curtains into this dark room”.
He also compared awards made in case law against what the full court awarded Khedama, which showed it was disproportionate.
Shaikjee said Khedama was “shocked” at the full court’s award as there was no explanation for what she was being compensated for.
“The mere say-so of a judge is not sufficient.”
Shaikjee said the full court erred in deviating from the manner in which Judge Lopes awarded interest, which was consistent with applicable case law.
No response was received from the SAPS and the Office of the Chief Justice did not comment.
Sunday Tribune