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[2021] ZAWCHC 275
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Apleni v Minister of Police; Mashiyana v Minister of Police (8084/2018; 8085/2018) [2021] ZAWCHC 275 (21 July 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Before:
The Hon. Ms Acting Justice Mangcu-Lockwood
Date
of hearing: 13 July 2021
Date
of judgment: 21 July 2021
Case
No: 8084
/2018
In
the matter between:
VUYOKASI
APLENI
Plaintiff
and
MINISTER
OF
POLICE
Defendant
And
Case
No: 8085
/2018
In
the matter between:
NONTSINDISO
PEGGY
MASHIYANA
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
DELIVERED ELECTRONICALLY
MANGCU-LOCKWOOD
J,
I.
INTRODUCTION
1.
These two matters
came before me on the unopposed roll. They are applications for
interim payment in terms of Uniform Rule 34A,
against the same
respondent, the Minister of Police (“
the
Minister”
).
Two days before the hearing of the matters, the respondent delivered
notices of intention to oppose, but did not deliver answering
affidavits. However, on the day of the hearing, Mr Manuel from the
state attorney appeared to represent the respondent and proceeded
to
argue against the granting of the orders sought. The basis for the
opposition is dealt with later below.
II.
THE
RELEVANT FACTS
2.
In both matters the
applicants are plaintiffs who have instituted actions against the
Minister for damages arising out of a shooting
incident of 14 March
2016. According to the summons in both matters, the applicants, who
were employed at McDonald's fast food
restaurant in Kuilsriver, were
passengers together with seven other staff members in a white Quantum
vehicle (“
the
Quantum”
),
when members of the police (“
SAPS”
)
fired gunshots at the Quantum, apparently mistaking it for another
similar vehicle.
3.
The applicants’
claims for interim payment are based on
loss
of income flowing from physical disability which, in turn was caused
by the shooting incident. They furthermore state that
the delay in
finalizing the action, which they attribute to the respondent, is
causing them undue hardship. The hardship is further
exacerbated by
the effects of the COVID-19 pandemic on their social support
structures. They have both set out their personal circumstances,
which remain unopposed, showing that that they are both unemployed;
both unmarried with three minor children; and are both unable
to work
as a result of the injuries sustained in the incident of 14 March
2016. Both of the applicants reside with their boyfriends,
who are
also currently unemployed. For each applicant the main source of
income is a disability grant, as well as SASSA benefits
for the three
minor children, which they state are inadequate to meet their
families’ needs.
4.
For the
purposes of the applications for interim payment, the applicants
mainly rely on the respondent’s pleas in response
to paragraphs
12 and 13 of the summons in both matters, which stated as follows:
“
12.
The
members of SAPS fatally shot two (2) staff members and three (3) of
them sustained serious gunshots wounds.
13.
The members of SAPS wrongfully and negligently shot the
Plaintiff.”
5.
In response to these paragraphs, the
respondent’s pleas in both matters state as follows:
“
Ad
Paragraph 12 &13
13.
Defendant
admits that specific passengers traveling in the quantum were found
to have been fatally wounded and that certain other
passengers,
including Plaintiff, were found to have been injured in that
Plaintiff had been shot by the police.
14.
Defendant admits that the shooting of Plaintiff was
unjustified and consequently wrongful.”
III.
ADMISSION
OF LIABILITY FOR DAMAGES
6.
The applicants rely
on the admissions made in the above-quoted portion of the plea, as
well as a letter from the respondent’s
attorneys, in which a
similar concession was made - that the shooting was unlawful - for
the Rule 34A applications. They state
that these concessions amount
to a written admission of liability for their damages, as
contemplated in Uniform Rule 34A(4)(a).
This formed the first
basis for argument by Mr Manuel. He argues that the applicants have
not met this jurisdictional requirement
in that the respondent has
not admitted to liability for the applicants’ damages in
compliance with the Rule.
7.
It is convenient to
set out the relevant provisions of the Uniform Rule at this point. It
provides as follows:
“
34A
Interim payments
(1)
In an action for damages for
personal injuries or the death of a person, the plaintiff may, ,
apply to the court for an order requiring
the defendant to make an
interim payment in respect of his claim for medical costs and loss of
income arising from his physical
disability or the death of a person.
(2)
Subject to the provisions of rule
6 the affidavit in support of the application shall contain the
amount of damages claimed and
the grounds for the application, and
all documentary proof or certified copies thereof on which the
applicant relies shall accompany
the affidavit.
(3)
Notwithstanding the grant or
refusal of an application for an interim payment, further such
applications may be brought on good
cause shown.
(4)
If at the hearing of such an
application the court is satisfied that —
a.
the defendant against whom the
order is sought
has in writing
admitted liability for the plaintiff’s damages
;
or
b.
the plaintiff has obtained
judgment against the respondent for damages to be determined,
the
court may, if it thinks fit but subject to the provisions of subrule
(5), order the respondent to make an interim payment of
such amount
as it thinks just, which amount shall not exceed a reasonable
proportion of the damages which in the opinion of the
court are
likely to be recovered by the plaintiff taking into account any
contributory negligence, set off or counterclaim.
(5)
No order shall be made under
subrule (4) unless it appears to the court that the defendant is
insured in respect of the plaintiff’s
claim or that he has the
means at his disposal to enable him to make such a payment.
(6)
The amount of any interim payment
ordered shall be paid in full to the plaintiff unless the court
otherwise orders.
(7)
Where an application has been
made under subrule (1), the court may prescribe the procedure for the
further conduct of the action
and in particular may order the early
trial thereof.”
8.
According to Mr
Manuel, in order to meet the requirement in Uniform Rule 34A(4)(a),
it must be shown that the respondent has admitted
to liability for
the quantum or part of the quantum of damages. It is not sufficient
that his client has admitted to the wrongfulness
of the shooting.
What the provision requires according to Mr Manuel, is admission of
liability for damages proved. The Rule, according
to him, is meant
for situations in which a defendant admits liability for payment of
damages but the parties do not agree on the
amount of quantum
payable. In this regard, he referred to paragraph 19 of the summons
in both matters in which the applicants have
set out the quantum of
damages claimed in respect of loss of income; and to the response in
the plea in which those amounts are
denied by the respondent.
Accordingly, it was argued that the respondent has not admitted
liability for payment of damages.
9.
Not
only is the interpretation contended by Mr Manuel not sustainable,
but it is not supported by the case law. It is well to remember
the
context for the Rule. The context is to alleviate hardship which a
plaintiff may suffer while waiting for the claim to be brought
to
finality, in other words, before
final
determination of the quantum of damages payable in the main action.
According
to subrule (1) an application may be brought at any
time
after the expiry of the period for the delivery of the notice of
intention to defend, a
clear
indication that the Rule does not require admission of proven damages
by a defendant. The Rule envisages that an application
of this nature
may be brought even before a defendant has delivered a plea.
This
was the view of the Court in
Karpakis
v Mutual & Federal Insurance Co Ltd
[1]
.
Regarding
the objective of the Rule
,
the
Court held that it is to
afford
a plaintiff an adjectival or procedural remedy to obtain, by way of
interim payment some of the medical costs and loss of
income arising
from his physical disability. It is not an advance payment in respect
of the damages which the plaintiff hopes will
be awarded to him at
some future time once proved. As the Court stated:
“
It
appears quite clearly that the interim payment envisaged by the Rule
is well and truly an interim one, that is to say, it
is one 'on
account' of what plaintiff (ie the claimant or applicant for the
interim payment) must still prove in order to obtain
judgment in his
favour at the trial where he is the plaintiff. It is, I think, also
clear that it never was, nor is it, the intention
of the Rule that
the Court, when it grants an interim payment, actually
pronounces judgment against defendant in plaintiff's
favour
on the cause of action which forms the subject-matter of the dispute
between the parties, nor does the Court give judgment as
to
part of plaintiff's claim. On the contrary, the entire claim remains
extant and still has to be proved at the trial - including
also those
very portions of it as may be covered by the interim payment or part
thereof. What is more, no part whatsoever of plaintiff's
claim
becomes extinguished or satisfied by the interim payment and the
entire interim payment is repayable, in whole or in part,
under
certain circumstances when the Court makes 'a final order' (subrule
(10)(a) ). It is quite clear that the Court, when
it decides to
grant an interim payment, does not in any way whatsoever
quantify and assess plaintiff's damages in the way
it would do when
giving judgment, ie after it has heard all the evidence touching upon
the quantum of damages and has
thereafter decided what the
exact amount of its award of damages should be. On the contrary, the
Court merely exercises a judicial
discretion under subrule (4) and,
having applied certain yardsticks and safeguards mentioned in the
Rule, grants an interim payment
in 'such an amount as it
thinks just', taking into account the criteria set out in
subrules (4) and (5). If the interim payment
were to be equated to,
or indeed be, a final judgment relating to damages of part
of the amount of damages claimed (or
suffered) by plaintiff in the
main action, subrule (5) would have no place whatever in the entire
Rule and be completely nugatory
because the possible
impecuniosity of the defendant or the fact that he is not insured
against plaintiff's claim can, in the
case of a judgment for damages,
not possibly have any bearing on the judgment for damages,
for in such event the defendant's
impecuniosity or his inability to
satisfy the judgment or the fact that he is not insured for the event
giving rise to plaintiff's
claim, are entirely irrelevant.”
[2]
10.
In
the case of
Karpakis
,
as in the present one, the defendant had conceded liability on the
merits and the only issue remaining for determination was the
quantum
of damages. The Court in
Karpakis
interpreted the requirement in Rule 34A(4)(a) to mean that the
defendant has conceded the merits of the action.
[3]
A similar view is espoused in Erasmus where, in relation to Uniform
Rule 34A(4)(a) the authors state that the “
subrule
distinguishes between ‘liability’ and ‘damages’.
An agreement of finding on liability disposes of
everything bar
the quantum of damages and hence the willingness to afford
the plaintiff interim payments”
.
[4]
11.
There
is accordingly no support for the view that Uniform Rule 34A(4)(a)
requires that the quantum of damages be admitted by a defendant.
I
was not referred to any authority for this argument in any event.
Rather, the authorities show that an admission of merits is
what is
intended by the requirement of an admission of liability for
damages.
[5]
There is no dispute
before me about the fact that the portion of the plea that I have
quoted above amounts to a written admission
of the merits of the
applicants’ claims. I am satisfied in this regard that the
requirement of Rule 34A(4)(a) is met.
IV.
THE
LOSS OF INCOME
12.
The next argument by Mr Manuel related
to whether or not the applicants have indeed incurred a loss of
income. I was referred to
actuarial reports which are attached to the
applicants’ applications. In each one it is recorded that each
of the applicants
was unable to return to work to date but “
have
received their income to date”
.
Indeed, the actuarial report in both instances is based on an
assumption that the applicants continue to receive their salaries
after the shooting incident. Through these statements Mr Manuel
sought to cast doubt on whether the applicants have stopped working
and earning an income. In response to this charge the applicants’
counsel, Ms Davids, pointed to the applicants’ affidavits
in
which they state that they do not receive any salaries or income but
rather receive disability and SASSA grants, but which are
inadequate.
I was also referred by Ms Davids to other expert reports in which it
is recorded that the applicants have lost the
ability to work, and
specifically an ability to stand for long periods of time, which is
what is required for their work at McDonald’s.
As I have
previously stated, the applicants’ version is not contradicted
on the evidence before me. I have no reason to reject
it. I am
satisfied on the papers that the applicants have each incurred a loss
of income. The next question is how much should
be awarded as interim
payments.
13.
Ms Apleni seeks an amount of R130 380 as
interim payment, whereas Ms Mashiyana seeks an amount of R81 400.
Neither applicant
has set out in the papers how these amounts are
computed. In terms of Rule 34A(4), the Court has a discretion to
order such amount
as it thinks just, but the amount must not exceed a
reasonable proportion of the damages which in the opinion of the
court are
likely to be recovered by the plaintiff taking into account
any contributory negligence, set off or counterclaim. In the summons
Ms Apleni seeks a total amount of R1 172 500,00 in respect
of loss of income, and Ms Mashiyana seeks R1 202 800. I was
informed
from the Bar that these amounts include past and future loss of
income. There is furthermore no claim of contributory
negligence, set
off or counterclaim raised. I consider the amounts claimed to be
reasonable amounts for interim relief, given that
the applicants were
employed as waitresses at MacDonald’s and have been unemployed
since March 2016, and continue to suffer
financial hardship whilst
awaiting finalisation of this matter. According to the actuarial
reports, Ms Apleni earned approximately
R2173 per month, and Ms
Mashiyana R2030 per month. I am of the view that the amounts claimed
are reasonable, just and appropriate
in the circumstances.
14.
At the hearing of the matter, the
applicants also sought relief in terms of Rule 34A(7), asking the
Court to prescribe a procedure
for the further conduct of the action,
including the allocation of an early trial. The basis for this relief
is said to be the
respondents’ conduct which has caused delays
in finalising the matter, despite the admission of liability in the
papers.
Although it does appear from the papers that there have been
regrettable delays in the matter, it also appears that there are
certain
expert reports which are still sought by the respondent
before it can commit itself to finalising the matter. The matter is
therefore
not ready for trial.
However,
given the uncontradicted and detailed version of the applicants -
that it is the conduct of the respondent which has caused
unnecessary
delays in the matter - it is appropriate that an order should be
granted that any outstanding expert reports should
be requested and
received by end of August 2021.
15.
From the papers it is evident that the
respondent’s attorneys have been
approached
on numerous occasions with a view to bringing finality to the matter.
This, especially in light of the respondent’s
admission
to the merits of the applicants’ claims, which was contained in
the plea delivered as far back as November 2018.
Whilst it is so that
the respondent is entitled to pursue every avenue it wishes to in
order to oppose the claims, including by
seeking as many expert
reports it wishes to, it is also a fact that, by any account, these
matters have incurred unnecessary delays.
The shooting incident was
in March 2016. The summons and plea were delivered in 2018. When
regard is had to the fact that the respondent
admitted liability to
the merits in 2018, the delays are regrettable, and induce no
surprise for the applications that have now
been brought. Indeed, the
respondents have themselves been numerously
warned
of the imminence of these applications.
V.
ORDER
16.
In the result, the following order is
made:
a.
In case number 8084/2018, the respondent
shall pay an amount of R130 380 as an interim payment in terms
of Uniform Rule 34A
to the bank account of the applicant’s
attorney, by 5pm on Friday 20 August 2021;
b.
In case number 8085/2018, the respondent shall pay an amount of
R81 400
as an interim payment in terms of Uniform Rule 34A to
the bank account of the applicant’s attorney, by 5pm on Friday
20 August
2021;
c.
In the event of the respondent failing to comply
with paragraphs (a) and (b) above, the applicants are granted leave
to approach
this Court on the papers filed of record, supplemented,
if necessary, for judgment against the respondent in the total sum
prayed
for.
d.
Any further expert report required by either party
in cases
8084/2018 and 8085/2018
shall be
requested and received by 31 August 2021;
e.
The respondent is directed to pay the costs of the
application for Rule 34A interim payment in both cases
8084/2018
and 8085/2018
, including costs of counsel.
N
MANGCU-LOCKWOOD
Judge
of the High Court
[1]
1991
(3) SA 489
(O) at 495
[2]
At
496B - H
[3]
At
497E
[4]
At
D1-453.
[5]
See
also
Tolstrup
NO v Kwapa NO
2002
(5) SA 73
(W) at 77E-H.