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[2011] ZAGPJHC 108
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Alves v LOM Business Solutions (Pty) Ltd and Another (GSJ) [2011] ZAGPJHC 108; 2012 (1) SA 399 (GSJ); [2011] 4 All SA 490 (GSJ) (9 September 2011)
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
REPORTABLE
CASE NO :
09/21956
DATE:09/09/2011
In
the matter between:
ANDREW
ALVES
.....................................................................................................
Plaintiff
and
LOM
BUSINESS SOLUTIONS (PTY)
LIMITED
.........................................
First
Defendant
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
..................................................
Second
Defendant
JUDGMENT
WILLIS
J:
[1]
The plaintiff has claimed damages by way of action. He has alleged
that the defendants were negligent in preparing the transcript
for
his appeal hearing resulting in his having to spend a further,
unnecessary period of incarceration. According to counsel and
the
attorneys for the parties this is, as far as they have been able to
ascertain, the first case of its kind. I too am unaware
of any claim
of such a nature having been brought before. The second defendant is
the Minister of Justice and Constitutional Development
who has been
nominally cited as the member of the National Executive with overall
responsibility for the administration of justice
in this country.
[2]
The plaintiff, who had been indicted for murder, was convicted in the
South Gauteng High Court (per Horn J) of attempted murder
on 13
December 2005. The learned judge immediately granted leave to
appeal. The appeal was directed to the “full bench”
of
this division. The appeal was heard on 29 February 2008. Judgment in
the appeal was given on 5 March 2008. The appeal was successful.
The
plaintiff’s conviction and sentence were set aside.
[3]
The plaintiff claims that the long interval of time between the
granting of the leave to appeal and the hearing thereof may
be
attributed to the negligence of the defendants in that they failed to
ensure that an appeal record was prepared within a reasonable
time.
The plaintiff alleges that, as a result of the defendants’
breach of their duty of care, he (the plaintiff) was incarcerated
for
longer than was reasonably necessary in the circumstances. This has
given rise to the claim for general damages for psychological
pain
and suffering and loss of earnings. The plaintiff claims R3, 65
million as general damages and R153 800,00 for loss of income.
[3]
The full canvas of the facts presents a complex picture. Looking at
that canvas, a court does not readily feel sympathy for
the
plaintiff. It is common cause that he, together with his co-accused,
all white men, assaulted an innocent black man in the
vicinity of 13
Krynauw Street in Boksburg during the night of Friday, 5 December
2003. These three men had left a braai at which
a fair amount of
liquor had been consumed in order to buy petrol. While they were away
they committed the assault. They returned
to the braai again and
spoke to others present of their deed. The reason for the assault
arises from the warped perception of the
plaintiff and his co-accused
as to the “collective guilt” of others. The business at
which the plaintiff had been working
had been robbed an armed gang of
black men the previous day. The plaintiff decided that the robbery
should be avenged by assaulting
a black man. The plaintiff had
described the robbers as “kaffirs”. This is the sort of
behaviour reminiscent of that
of the Ku Klux Klan in the deep South
of America more than 50 years ago.
[5]
According to one of the plaintiff’s co-accused in the criminal
trial, the assault was vicious. The victim was hit with
clenched
fists. He was kicked with booted feet. His head was bashed against a
tree trunk. Thereafter the plaintiff drove over
the victim’s
legs with a vehicle. The plaintiff denied these details although he
did admit to having assaulted a person on
the night in question. The
plaintiff’s erstwhile girlfriend, Mariette Labuschagne had left
the braai with one Hennie Badenhorst
to buy some cooldrinks. Although
she did not see the actual assault, the saw the victim upon her
return as well as the blood on
the hands of the assailants. She also
heard the plaintiff and his co-accused discuss the incident among
themselves. Mariette Labuschagne
was severely traumatized by the fact
that the assault had taken place. She had telephoned her Aunt Daleen
at 22h13 on 5 December
2003 for comfort and to seek advice. She had
done so about ten to fifteen minutes after she had seen the injured
victim. To do
so she had used a borrowed cellular telephone. The
telephone records reflect the call having been made at this time. The
plaintiff
was arrested on 6 December 2003. It seems that the
plaintiff was arrested consequent upon a report which Mariette
Labuschagne had
given to the police. The plaintiff was later charged
with murder. He remained in custody until the judgment in the appeal
was handed
down on 5 March 2008.
[6]
The person whom the plaintiff is alleged to have assaulted died on 9
December 2003. Two difficulties loomed large for the State
in the
criminal trial: (i) was the person who died indeed the person whom
the plaintiff assaulted and (ii) even if (i) was proven
beyond
reasonable doubt, did the deceased die as a result of his injuries?
These issues relate to the chain of evidence with which
all lawyers
will be familiar. The chain of evidence is of particular importance
in criminal cases where the death of the victim
is an element of the
offence.
[7]
The evidence of the State is that a severely injured man was seen by
members of the Boksburg Police Services at the Boksburg
charge office
at 21h45 on 5 December 2003 and an ambulance summoned. According to
the Boksburg Police records only one person was
assaulted in the
vicinity of that police station that night. The hospital records show
that the person who died and whom the plaintiff
is alleged to have
assaulted was admitted to the Oliver Tambo Memorial at 21h40 on 5
December 2005.
[8]
The State case had this insurmountable difficulty: the records at the
Boksburg Police Station and the Oliver Tambo Memorial
Hospital do not
tally with the objective evidence as when Mariette Labuschagne made
her telephone call to her aunt. The evidence
points to the fact that
the person whom Mariette Labuschagne had seen as the victim of the
plaintiff’s assault was neither
the person who had been seen at
the Boksburg Police Station on the night in question nor the person
admitted to hospital who later
died (and for whose death the
plaintiff was charged with murder). The objective records at the
police station and the hospital
preceded the objective evidence as to
when Mariette Labuschagne saw the victim: the deceased would already
have been in hospital
at the time she saw the victim. Horn J said in
his judgment:
It
is so that there are some discrepancies as to exactly what time the
assault took place. However, it is understandable that in
circumstances such as this where we have a moving situation, a
situation where a lot of people have gathered to have a braai, where
there were several incidents which occurred, people are not going to
be accurate with the times of the events.
[9]
Tshiqi J (as she then was) delivered the appeal judgment, with which
judgment both Blieden and Saldulker JJ concurred. Tshiqi
J pointed
out that one could only begin to reconcile the different versions as
to time if one could find that the hospital record
of the time of the
admission of the deceased person was wrong. There was no basis for
doing so. Indeed, in the absence of convincing
evidence that the
hospital records were wrong, the principle of omnia praesumuntur rite
esse acta (everything is presumed to have
been done correctly) would
apply: they must be accepted as being correct. It is true that
Mariette Labuschagne and Hennie Badenhorst
were taken to the Tambo
Memorial Hospital to identify the victim on 7 December but, as Tshiqi
J pointed out in her judgment, they
would have had a fraction of time
to observe the victim on 5 December 2003, in very poor light indeed,
Badenhorst contradicted
himself in material respects as to what he
had observed and the police had been highly suggestive that they were
being taken to
see and identify the victim.
[10]
The State’s difficulties were compounded by the fact that the
evidence shows that the deceased contracted pneumonia after
his
admission to hospital and died as a result thereof. The assault may
have contributed to the onset of the pneumonia but, according
to the
evidence, this cannot be certain. The hospital records show that
after his admission, the deceased’s condition improved
quite
dramatically. Suddenly, his condition took a turn for the worse.
There is no record of the treatment he received after contracting
pneumonia. It is thus not possible to rule out that the deceased had
died as a result of a novus causus interveniens, the negligent
treatment which he received at hospital. By reason of the
difficulties which the State faced on the question of causation, Horn
J found the plaintiff and his co-accused guilty of attempted murder
rather than murder itself.
[11]
The appeal court refrained from expressing any view on the
correctness of the court’s reasoning relating to the issue
of
causation because it considered that it was bound to intervene
because the question of whether the person who had died was the
victim of the assault in question could not be determined.
[12]
Upon conviction, the plaintiff was sentenced to 12 years’
imprisonment of which nine years were suspended on certain
conditions. As mentioned earlier, Horn J granted leave immediately.
The plaintiff was thus convicted, sentenced and granted leave
to
appeal on 13 December 2005, approximately two years after the
assault. Horn J refused the plaintiff’s request for bail
pending the appeal.
[13]
The registrar of the High Court instructed “Sneller Verbatim”
to transcribe the record on the trial proceedings
on 9 January, 2006.
He used a form J33 for this purpose. Sneller Verbatim were succeeded
as the official court transcribers for
the whole of the Gauteng
Province by the first defendant, LOM Business Solutions (Pty)
Limited, the official date of commencement
being I June 2006. In
actual fact, it took until October 2006 before the first defendant
had taken over from Sneller Verbatim.
[14]
The evidence of several witnesses, including Annette Leonard who had
worked for Sneller Verbatim at the beginning of 2006,
the chief
registrar, the plaintiff and one Lionel Greenberg who assisted the
plaintiff makes it clear that the reason for the delay
in preparing
the record for the appeal lay in the fact that difficulties were
experienced in locating certain documentary exhibits
used during the
trial. It was common cause, in the end, that transcribing the oral
evidence given in the trial – which ran
to about 1100 pages –
should have taken a matter of weeks at most and not months. In other
words, the transcript should have
been ready by the end of the first
term of 2006. Thereafter, everyone agreed that a date for the hearing
of the appeal would have
to be arranged. This should reasonably have
occurred in the second term of 2006. Everyone also agreed that it
would have been
reasonable to have expected the appeal to have been
heard either during the third or the fourth term of 2006.
[15]
It so happens that the complete record of the trial hearing was made
available by the first defendant to the registrar only
on 7 October
2007, i.e. during the fourth term of 2007. As has been noted
previously, the appeal was heard on 29 February, 2008,
i.e. during
the first term of 2008. The appeal was therefore heard a year to 15
months later than it reasonably should have been.
In regard to the
computation of ‘reasonableness’. I have sought to apply
the Constitutional Court’s decision
in Saunderson v
Attorney-General, Eastern Cape.
1
In that case Kriegler J referred with approval to the ‘balancing
test’ in Barker v Yingo
2
which he described as ‘seminal’.
3
By parity of reasoning, the plaintiff was kept in gaol for a year to
15 months longer than he should have been.
[16]
The plaintiff gave a harrowing account of his time spent in gaol. He
referred to the overcrowded conditions and generally unpleasant
atmosphere that prevailed in prison. He described how he could not
afford to pay for the transcript himself and had to rely on
the State
to do so. He described how he had repeatedly followed up his request
for a transcript with both the transcribers and
the
office of the registrar even to the extent of making a nuisance of
himself. He had also engaged the assistance of Lionel Greenberg,
a
person well known to the court and almost all officials in this
building. Lionel Greenberg rendered this assistance free of charge.
On his own admission, Greenberg made a nuisance of himself in
championing the plaintiff’s cause while he was in prison.
[17]
The plaintiff is a qualified fitter and turner. He was born on 7
March 1977. Immediately before his arrest he was earning
R1800,00
per week as a maintenance fitter. Almost as soon as he was released
after his successful appeal he was again employed
as a maintenance
fitter earning R2000,00 per week. He now runs his own business.
[18]
I do not think the plaintiff has a claim against the first defendant.
In the first place, the record should have been ready
during the time
when Sneller Verbatim were employed by the second defendant.
Secondly, the delays related to the tracking down
of missing
documentary exhibits. It seems that both Sneller Verbatim and the
first defendant had been diligent in attempting to
track down these
exhibits, even to the extent of attempting to enlist the assistance
of an advocate who had been on private brief
for one the plaintiff’s
co-accused. Thirdly, the first defendant credibly claimed that it did
not get the support which it
could reasonably have expected to have
received from the second defendant – a fact objectively
illustrated by the fact that
it only received payment for the
transcript in this matter on 18 December 2008 – more than a
year after it was made available
on 7 October 2007. Fourthly, it is
the responsibility of the staff in the National director of Public
Prosecutions’ office
– which falls under the aegis of the
second respondent – to ensure that there are sufficient
duplicate copies of documentary
exhibits to cater for situations such
as the one in question. The first defendant fairly and correctly
indicated that it would
not seek an order for costs against the
plaintiff in the event that the claim against the first defendant
failed but succeeded
against the second defendant.
[19]
The second defendant has protested that Sneller Verbatim was not
joined as a party to these proceedings. The right to object
that
other parties have not been joined is limited.
4
I am not sure that it can even be said that Sneller Verbatim has a
direct and substantial interest in the issues involved.
5
In any event, the following factors are relevant: (i) the objection
of non-joinder was raised late in the day; (ii) the evidence
shows
the reason for the delay is to be found in the fact that documentary
exhibits were not located – the blame for which
could not be
placed at the feet of the transcribers, whoever they may have been;
(iii) there does not appear to have been any registered
legal persona
known as “Sneller Verbatim”, either at the office of the
registrar of companies or close corporations
and (iv) no one seems to
know of any legal entity which traded as “Sneller Verbatim”.
The non-joinder objection of
the second defendant cannot, in the
circumstances be sustained.
[20]
Does the plaintiff succeed in his claim against the second defendant?
Ms Buthelezi, who appeared for the second defendant,
conceded that
her client owed a duty to appellants in the position of the plaintiff
to ensure that records were prepared for the
hearing of an appeal
within a reasonable time.
[19]
In terms of section 12 of our Constitution, everyone has a right to
freedom; in terms of section 21 to freedom of movement;
in terms of
34 to access to the courts; in terms of section 35 the right to
challenge the lawfulness of one’s detention and
a right of
appeal. These constitutional rights cannot be rendered nugatory by
unreasonable delays in the offices for which the
second defendant is
responsible.
[20]
Section 316(7)(b)
of
the
Criminal Procedure Act 51 of 1977
, as amended (“the
Criminal Procedure Act&rdquo
;) provides as follows:
(b)
If an application under subsection (1) for leave to appeal is granted
and the appeal is under
section 315
(3) to be heard by the full court
of the High Court from which the appeal is made, the registrar shall
without delay prepare a
certified copy of the record, including
copies of the evidence, whether oral or documentary, taken or
admitted at the trial, and
a statement of the grounds of appeal:
Provided that, instead of the whole record, with the consent of the
accused and the Director
of Public Prosecutions, copies (one of which
must be certified) may be prepared of such parts of the record as may
be agreed upon
by the Director of Public Prosecutions and the accused
to be sufficient, in which event the judges of the full court of the
High
Court concerned may nevertheless call for the production of the
whole record.
[21]
In S v Carter,
6
a case which dealt with the preparation of documents by the registrar
for forwarding to the Supreme Court of Appeal (‘the
SCA’),
rather than a full bench, Heher JA delivering the unanimous judgment
of the court said:
….
More important,
s 316
contains no equivalent of SCA
Rule 8(3)
which
brings about the lapse of an appeal on failure to lodge the record
within the prescribed period. The reason for this is obviously
that
the duty is imposed on the registrar of the High Court and not the
appellant. This is also understandable given that a high
proportion
of appellants in criminal matters come to this Court on legal aid.
[22]
He continued:
Consequently, if there was a failure to comply with
s 316(7)(a)
in
this case, which as will be seen, was not resolved, then the primary
responsibility must be sought in the office of the registrar
of the
High Court.
7
[23]
The purpose of the statutory obligation imposed on the registrar to
prepare a record of appeal in criminal matters is, in my
respectful
view, expressed with admirably succinct accuracy and clarity by
Erasmus J in S v Manyonyo
8
where the learned judge said:
The
reason for the statutory insistence on the expeditious despatch of
records on review is generally to promote the speedy and
efficient
administration of justice, but in particular to insure that an
accused is not detained unnecessarily in cases where the
court of
review sets aside the conviction or reduces the sentence.
9
[24]
Similar views have been expressed in a long line of cases such as S
v Letsin;
10
S v Raphatle;
11
S v Lewies;
12
S v Hlungwane;
13
S v Maluleke
;
14
S v Sanatsi
15
and
S v Heslop
.
16
None of these cases deals, however, with the civil remedy that may be
available to someone whose rights were infringed by delays
in
preparing the appeal record. An eloquent lamentation about the law’s
delays is also to be found, albeit in a somewhat
different context,
in the civil case of
Minister of health
and Another N.O. v New Clicks South Africa (Pty) Ltd and Others
(
Treatment Action
Campaign and Another as
Amici Curiae
)
17
[25]
Ms
Buthelezi
submitted
that
the Minister
had a defence of
vis maior
or
casus fortuitus
,
that her client was prevented from preparing the record for appeal by
forces beyond his control. I disagree. It was not beyond
the control
of the officials who worked in the second defendant’s
department to ensure that delays relating to having copies
of
documentary exhibits are readily available. It is true that the
principles of
vis maior
and
casus fortuitus
usually
apply to questions of the enforceability of contracts.
18
Nevertheless, there seems to be no reason why the principle should
not extend to obligations that arise from a duty of care to
the
public as a whole: in the leading case concerning the point, the
Appellate Division referred with approval to
Averanius’
Interpretatio Juris Civilis
4.24.2 where
the justification for the principle is stated by
Averanius
as follows:
Quia impossibilium nulla est
obligatio
(Because where there is an
impossibility, there is no obligation
–
my translation).
19
[26]
In
Olitzki Property Holdings v State Tender Board and Another
20
Cameron JA, delivering the unanimous judgment of the SCA, said as
follows:
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretation, since the statute may on a proper construction by
implication
itself confer a right of action, or alternatively provide
the basis for inferring that a legal duty exists at common law. The
process
in either case requires a consideration of the statute as a
whole, its objects and provisions, the circumstances in which it was
enacted, and the kind of mischief it was designed to prevent. But
where a common-law duty is at issue, the answer now depends less
on
the application of formulaic approaches to statutory construction
than on a broad assessment by the court whether it is "just
and
reasonable" that a civil claim for damages should be accorded.
The conduct is wrongful, not because of the breach of the
statutory
duty per se, but because it is reasonable in the circumstances to
compensate the plaintiff for the infringement of his
legal right. The
determination of reasonableness here in turn depends on whether
affording the plaintiff a remedy is congruent
with the court's
appreciation of the sense of justice of the community. This
appreciation must unavoidably include the application
of broad
considerations of public policy determined also in the light of the
Constitution and the impact upon them that the grant
or refusal of
the remedy the plaintiff seeks will entail.
[27] It must also be
borne in mind that, even if the law recognises the existence of a
legal duty to act and even if such duty has
been breached, with the
result that the conduct complained of is unlawful, the element of
fault must still be satisfied before
liability will attach to the
defendant. In order for fault or culpability to attach to an
omission, the classic test referred to
in Kruger v Coetzee
21
is applied. This entails that liability arises if a reasonable person
in the position of the defendant would have foreseen that
his conduct
would reasonably possibly cause harm to another and would have taken
reasonable steps to avert it, but the defendant
failed to do so. The
test is an objective one which does not depend on the subjective
intent or mind set of the defendant, but
rather on the particular
circumstances of each case. The reasonable person would have foreseen
the prejudice to the plaintiff occasioned
by the delay. It is
obvious. It is a needlessly long time spent in prison. Steps could
reasonably have been taken to prevent it.
[28]
A further relevant consideration is that there must be a causal
connection between the unlawful and negligent conduct complained
of,
and the harm which is alleged to have ensued. The element of
causation involves two distinct enquiries. This is clear from
the
decision of the SCA in mCubed International (Pty) Ltd & Another v
Singer & Others.
22
First, in regard to the issue of factual causation, it must be
determined whether or not the postulated cause can be identified
as
the sine qua non of the loss in question. This has become known as
the ‘but-for’ test. In applying such a test,
one makes a
hypothetical enquiry as to what would probably have happened, but for
the wrongful act of the defendant.
23
If the plaintiff's loss would still have ensued absent the
defendant's conduct, factual causation is lacking and that is the end
of the matter.
24
Secondly, if factual causation has been established, it must be
determined whether the wrongful act is linked sufficiently closely
to
the loss concerned for liability to ensue.
25
If the damage is too remote, no liability will accrue.
26
Both the ‘but-for’ test and the lack of remoteness of the
linkage between the plaintiff’s prejudice and the second
defendant’s negligence have been satisfied in this case.
[29]
The judgment of the Constitutional Court in Carmichele v Minister of
Safety and Security
27
emphasized that prosecutors, for example, owe the public a duty to
carry out their functions in the interests of the public.
28
The court also made the point that the courts must take into account
the pressures under which court officials work and must be
careful
not to use hindsight as a basis for making unfair criticisms.
29
The Carmichele case is furthermore one of the leading authorities on
the duty of the courts in South Africa to develop the common
law.
30
In that case the court emphasized that in considering the question of
whether a positive duty rests on persons employed by the
State to act
in a particular manner due regard should be had to the principle of
proportionality taking into account the ‘spirit,
purport and
objects of the Bill of Rights’ contained in the Constitution.
31
[30]
I have derived considerable comfort from the case of Zealand v
Minister of Justice and Constitutional Development
32
decided in the Constitutional Court. One Jonathan Zealand was
convicted on 28 September 1998 of murder in the Port Elizabeth High
Court. On appeal, his conviction and sentence were set aside on 23
August 1999. The registrar of that High Court negligently failed
to
issue a warrant for Jonathan Zealand’s release until 8
December 2004, with the result that he remained in custody until
9
December, 2004, more than five years after his conviction and
sentence had been set aside. Although there are differences between
the factual matrices of the two cases, there are also significant
similarities. Langa CJ, delivering the unanimous judgment of
the
Constitutional Court, gave firm endorsement to the principle that
Jonathan Zealand’s right to freedom had been seriously
infringed.
33
Langa CJ held the detention from 23 August to 30 June 2004 had been
unlawful and justified a delictual claim m for damages.
34
[31]
Against this background, I am satisfied that the plaintiff should be
successfully be awarded damages arising from his extended
period of
incarceration attributable to the failure of the Department of
Justice and Constitutional Development to ensure that
his record of
proceedings was prepared within a reasonable time for the appeal
hearing to have taken place. The more difficult
question is this: how
does one quantify the general damages in this particular case?
[32]
Since the case of Salzmann v Holmes
35
it has been recognized that in claims for damages based on injuria, a
court takes into account a variety of factors. These relate,
in the
main to contumelia but also take into account loss of reputation and
a penalty to be inflicted upon the defendant.
36
It has been clear since the case of Matthews and Others v Young
37
that for an action to rely on injuria (the actio injuriarum) the
wrong committed must have been intentional.
38
Contumelia requires dolus (intent).
39
A claim based on negligence, as in this case, is brought in terms of
the actio legis Aquliae for which either dolus or culpa may
be
elements.
40
Under the actio legis Aquliae the plaintiff is awarded ‘the
damnum, that is the loss suffered by the plaintiff by reason
of the
negligent act’.
41
The compensation (skadevergoeding) awarded is ‘die verskil
tussen die vermoënsposisie van die benadeelde vóór
die onregmatigde daad en daarna… Skade is die ongunstige
verskil wat deur die onregmatigde daad ontstaan het.’
42
The amount of compensation is therefore computed according to the
diminution in the plaintiff’s patrimony. Compensation is
not
punishment.
43
Nevertheless, even in the Santam Versekeringsmaatskappy Beperk v
Byleveldt case which affirmed this ‘compensation is not
punishment’ principle, Rumpff JA (as he then was) delivering
the majority judgment, affirmed the view of McKerron in Law
of
Delict that ‘the interests of society are sometimes better
served by allowing the injured party to recover damages beyond
the
compensatory measure.’
44
Rumpff JA also referred with approval to the observations of Lord
Reid in the English case of Parry v Cleaver
45
that ‘the ordinary man’s sense of justice’ and
public policy were relevant considerations.
46
The ordinary person’s sense of justice and considerations of
public policy are particularly important in a case such as
this. It
seems there can be no easy or rigid formula.
[33]
I accept that the plaintiff suffered psychologically as a result of
his long period of imprisonment. Since the case of Bester
v
Commercial Union Versekeringsmaatskappy van SA Beperk
47
it has been clear in South African law that damages may be awarded
for psychological pain and suffering provided the consequences
could
reasonably have been foreseen. That it is no holiday to be in prison
in South Africa is sufficiently well known for the
plaintiff’s
trauma to have been foreseeable.
[34]
During the course of hearing counsel’s submissions on quantum
it was agreed that a court must avoid on the one hand,
sending out a
message that there are large sums of money to be made out of the
mistakes which may be made by state officials. On
the other hand, it
was also accepted that the amount should not be derisory showing
contempt or indifference to the loss of freedom.
The approach to
quantum should be different in a case such as this from the situation
where there has been an unlawful arrest and/or
detention. An unlawful
arrest need not always be intentional but may also occur
negligently.
48
Nevertheless, society’s disapprobation is less in a case such
as this than one in which there has been an unlawful arrest.
Counsel
for the parties spent some time in making computations according to a
daily rate. The question arises as to whether there
should be a ‘per
diem rate’ in matters of this kind. A ‘daily rate’
in cases such as this would be inappropriate.
It would be too
formulaic to do justice in different cases
49
.
As I pointed out in Mvu v Minister of Safety and Security,
50
views as to what may be an appropriate award in a particular set of
circumstances may differ quite markedly from person to person.
51
[35]
The plaintiff assaulted a person in a perverse act of ‘revenge’
for the armed robbery which he experienced. The
perversity lies in
the fact that because the robbers were black, he thought he would
exact vengeance on a black man who had nothing
to do with the
robbery. Nevertheless, there are far too many unanswered questions to
accept that the assault was as severe as only
one witness, his
co-accused (accused 1) made out. Accused 1, 18 years old at the time
of the trial, was considerably younger than
the plaintiff. Accused 1
had been under the influence of the plaintiff. He had been on bail
throughout all the proceedings. He
was clearly anxious to heap as
much blame on the plaintiff as possible. Horn J, found in his
judgment that accused 1 had been
an opportunistic witness, blaming
the plaintiff as much as he could but trying to extricate himself
from culpability for the common
cause fact that he had participated
in the assault of a fellow human being. Accused 1 appears, frankly,
to have been an appalling
witness. Why?
[36]
If the victim had been severely assaulted, how come his case did not
come to the attention of the Boksburg police station:
the only case
of assault with which the Boksburg police dealt that night was one
which, according to their records and that of
the local hospital
nearby, could not have been the case in which the plaintiff had been
involved?
[37]
If the relationship between the plaintiff and his erstwhile
girlfriend had not been troubled (as the plaintiff claims), how
come
she did not accompany him to buy petrol? How come she went alone with
Hennie Badenhorst to buy cooldrinks late at night? Why,
as the court
of appeal found, was Hennie Badenhorst such an unsatisfactory, indeed
contradictory witness? Why, if the victim as
seen by Hennie
Badenhorst and Mariette Labuschagne was as badly assaulted as they
said, did they merely assist him to cross the
road and not take him
to the nearest police station or the hospital?
[38]
Horn J found that the plaintiff was an unsatisfactory witness. Before
me, the plazintiff gave a good account of himself. In
the judgment in
the criminal appeal the learned judges expressed the hope that the
appellants had “learned a lesson from
this case”. Perhaps
the plaintiff did. What kind of lessons may he have learned, however?
This case has been a difficult
one. Among the reasons for the
difficulty is that we continue to be haunted by South Africa’s
great demon: race.
[39]
In evaluating the evidence, I am mindful of the well known passage
set out in the case of SFW Group Limited & Another
v Martell
et Cie & Others
52
2003 (1) SA 11
(SCA) at paragraph [5] as follows:-
On
the central issue as to what the parties actually decided, there are
two reconcilable versions. So, too, on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by the courts in resolving factual
disputes may conveniently be summarised as follows:
To
come to a conclusion on the disputed issues, a court must make
findings on:
The credibility of the
various witnesses;
Their reliability;
The probabilities.
As
to (a) the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity
of the
witness. That, in turn, will depend on a number of subsidiary
factors not necessarily in order of importance such as:
The witness’
candour and demeanour in the witness box;
His bias, latent or
patent;
Internal contradictions
in his evidence;
External contradictions
in what pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions;
The probability or
improbability of particular aspects of his version;
The calibre and cogency
of his performance compared to that of other witnesses testified
about the same incidents or events.
As
to (b), a witness’ reliability will depend, apart from the
factors mentioned under (a) (ii), (iv), (v) above, on
the opportunity he had
to experience or observe the events in question; and
the quality,
integrity and independence of his recall thereof.
As
to (c), this necessitates an analysis and evaluation of a probability
or improbability that each parties’ version on each
of the
disputed issues. In the light of its assessment of (a), (b) and (c)
the court will then, as a final step, determine whether
the party
burdened with the onus of proof has succeeded in discharging it. The
hard case which will doubtless be the rare one,
occurs when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in
another. The more convincing the
former, the less convincing will be latter. But when all factors
equipoised the probabilities
prevail.
Having
regard to this test and the evidence outlined above, the factual
finding of this court regarding the plaintiff’s assault
on his
victim is that the plaintiff perpetuated a perverse racist assault on
his victim, the severity of which cannot be determined.
[40]
By agreement between the parties, the Minister defendant called his
witness before the first defendant did so. When, at the
end of the
second last day of the trial, the first defendant’s witness had
given evidence-in-chief, I informed counsel for
the parties that as
it was clear we would finish the next day and as it was common cause
that it had taken an inordinately long
time to prepare the record of
the trial proceedings, counsel should please prepare argument on the
question of liability if any
and, if so, the quantum to be awarded.
The next morning counsel for the second defendant applied for my
recusal. She submitted
that, by this request before the first
defendant’s witness had been cross-examined by her, I had shown
‘bias’.
The application was opposed by the first
defendant and the plaintiff. Applications of this nature have become
a ‘vogue item’
in this division. I dismissed the
application.
[41]
The opening lines in the first section of our Constitution refer to
State of South Africa as being founded on the values of
‘Human
dignity, the achievement of equality and the advancement of human
rights and freedoms’. Section 7 (1) of the
Constitution goes on
to provide that:
This
Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms
the
democratic values of human dignity, equality and freedom.
In
the case of Kaunda and Others v President of the Republic of South
Africa
53
in
which there were four separate judgments in the Constitutional Court,
the learned justices of that court repeatedly referred
to ‘dignity,
equality and freedom’ collectively, listing the words in the
self-same sequence as appears in section
7 (1). I am aware that there
are those who consider that the sequence of dignity first, equality
second and freedom third in this
phraseology indicates a hierarchy of
rights with equality preceding freedom and dignity preceding
equality. I am reminded of the
fact that, in the fourth century A.D.
(C.E.), a vital aspect of Christian doctrine turned, in a certain
sense, literally, upon
a single iota:
54
were the Father, Son and Spirit of ‘like’ substance
(homoiousios) or of the ‘same’ substance (homoousios)?
55
Much division may be avoided if it was accepted that dignity,
equality and freedom are fundamentally inter-related and
inter-connected.
[42]
The history of slavery makes it clear that without freedom, human
dignity is severely eroded, if not destroyed. In our experience
of
freedom, ordinary human beings may rejoice that their quality of life
in a significant respect surpasses that of queens and
princes. As
Elizabeth I of England said in her Golden Speech: ‘To be a
king, and wear a crown, is a thing more glorious to
them that see it
than it’s pleasant to them that bear it.’
56
It is the thirst for freedom that reminds us of the fundamental
equality of all human beings.
[43]
Isaiah Berlin contended in his famous essay, Two Concepts of Liberty
based on his inaugural lecture delivered in 1958, that
‘upon
the permissible limits of coercion opposed views are held in the
world today, each claiming the allegiance of very
large numbers of
men.’
57
In that essay he made a helpful distinction between two central
senses of the word ‘freedom’.
58
The one sense he describes as ‘negative freedom’.
59
This is the freedom of a person to act in an unobstructed manner.
60
He also terms this a ‘freedom from’.
61
The other freedom he describes as ‘positive freedom’.
62
This is the freedom of individuals to be the instruments of their
own and not other persons’ acts of will.
63
This ‘positive freedom’, he says may be described as a
‘freedom to’.
64
[44]
No interested observer of society will be oblivious to the question:
but what about freedom from hunger, poverty and disease?
Should there
not be an interference with economic freedom not only in order to
ensure that there is freedom from these scourges
of hunger, poverty
and disease but also the achievement of equality? Is this not what
the socio-economic rights in sections 26
to 29 of the Constitution
are all about? I contended in Emfuleni Local Municipality v Builders
Advancement Services CC and Others
65
that the evidence is now overwhelming that ‘robbing Peter to
pay Paul’ has prevented millions of human beings around
the
world from escaping from the bonds of poverty. It is better to
encourage Peter to employ Paul. If Peter is to employ Paul,
Peter
needs to be free to innovate, to take risks, to explore his economic
freedom. Economic freedom is the engine through which
to achieve the
equality of a minimum standard of living, consistent with human
dignity, for all.
[45]
That freedom is important has had an ancient, even religious
resonance. For example, those familiar with The Book of Common
Prayer
used by the Anglican Church will recall that in the Order for Morning
Prayer there is the Prayer for Peace. In that prayer
there is the
invocation of this apparent paradox: ‘O God… whose
service is perfect freedom…’. Perfect
freedom is not
freedom to do as one wants but freedom to choose a way of life.
66
That way of life may lead to freedom from fear, anxiety, failure,
selfishness, envious self-regard and so on.
[46]
Ms Buthelezi, who appeared for the Minister, submitted in her written
heads of argument that Jonathan Zealand, the litigant
in the Zealand
v Minister of Justice and Constitutional Development case
67
received the equivalent of R1100,00 per day as damages. In round
figures, this would translate into an award of R2 million today.
[47]
Having regard to the principles and the case law set out above, R300
000,00 as general damages would seem appropriate. Insofar
as loss of
earnings is concerned, approximately R2000,00 per week translates,
over 15 months, to around R120 000,00. Not without
irony, Ms
Buthelezi pointed out that, while in custody, the plaintiff had
‘enjoyed’ ‘free board and lodging’.
I shall
take this into account and award R50 000,00 as the net loss of
earnings. The total of the plaintiff’s proven damages
therefore
amounts to R350 000,00.
[49]
Counsel for the plaintiff asked that I make a pertinent provision
that the costs of the second defendant’s application
for
absolution from the instance at the close of the plaintiff’s
case as well as the costs of the application for my recusal
be
included in the order for costs. I responded by saying that, in my
understanding, an order that one party is to pay another’s
costs of suit would include these costs. Mr Snoyman persisted with
his request, saying that this would avoid any problems on taxation.
I
shall oblige, even though I think the order will be pedantic.
[48]
Judgment is given in favour of the plaintiff against the second
defendant. The following is the order of the court:
(i)
The second defendant is to pay the plaintiff the sum of R350 000,00
(three
hundred and fifty thousand rand) together with interest at the rate
of 15,5 percent per annum from the date of judgment
to date of
payment and costs of suit;
(ii)
The aforesaid costs are to include the costs of the second
defendant’s application for absolution from the instance at
the
close of the plaintiff’s case as well as the costs of the
application for my recusal;
(iii)
The plaintiff’s claim against the first defendant is dismissed
without there being any order as to costs.
DATED
AT JOHANNESBURG THIS 9TH DAY OF SEPTEMBER, 2011
______________________
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff: Adv. C. Snoyman
Counsel
for the First Defendant: Adv. I.T. Allis
Counsel
for the Second Defendant: Adv. Z. Buthelezi
Attorneys
for the Plaintiff: L.A. Marks
Attorneys
for the First Defendant: Thomson Wilks
Attorneys
for the Second Defendant: The State Attorney
Dates
of hearing: 22nd to 25th August, 2011
Date
of judgment: 9th September, 2011
1
1998 (2) SA 38
(CC) at paragraph
[25]
2
[1972] USSC 144
;
407 US 514
(1972) at 530-2
3
1998 (2) SA 38
(CC) at paragraph
[25]
4
See
Transvaal Agricultural Union v Minister of Agriculture and
Land Affairs and Others
2005 v(4) SA 212 (SCA) at paragraphs
[64]-[66];
Burger v Rand Water Board And Another
2007 (1) SA
30
(SCA) at paragraph [30];
Bowring N.O. v Vrededorp Properties
CC and Another
2007 (5) SA 391
(SCA) at paragraph [21].
5
See
Transvaal Agricultural Union v Minister of Agriculture and
Land Affairs and Others
2005 v(4) SA 212 (SCA) at paragraphs
[64]-[66];
Burger v Rand Water Board And Another
2007 (1) SA
30
(SCA) at paragraph [30];
Bowring N.O. v Vrededorp Properties
CC and Another
2007 (5) SA 391
(SCA) at paragraph [21].
6
2007(2) SACR 415 (SCA) at paragraph
[8]
7
At paragraph [9]
8
1996 (11) BCLR 1463
(E)
9
At 1466C
10
1963 (1) SA 60
(O)at 61E –H
11
1995(2)SACR 452 (T)
12
1998 (1) SACR 101
(C) at 104b
13
2
001(1) SACR 136 (T) at 142
et
seq
.
14
2
004 (2) SACR
577
(T) at paragraph [12]
15
2006 (2) SACR (SCA) at paragraph [11]
16
2007 All SA 955
(SCA) at paragraph [2]
17
2006 (2) SA 311
(CC) at paragraph [68]
18
See, for example, the leading case,
Peters, Flamman and Co. v
Kokstad Municipality
1919 AD 427
19
Peters, Flamman and Co. v Kokstad Municipality
(
supra
)
at 435
20
2001 (3) SA 1247
(SCA) at paragraph [12]
(Footnotes
omitted)
21
1966 (2) SA 428
(A) at 430E-F
22
2
009 (4) SA 471
(SCA) at paragraphs
[21] to [23]
23
At paragraph [22]
24
Ibid
.
25
At paragraph [23]
26
Ibid
.
27
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
28
At paragraph [72]
29
At paragraph [73]
30
At paragraphs [33] to [43].
31
At paragraph [43]
32
2008 (4) 458 (CC)
33
See paragraphs [24] to[47]
34
See paragraphs [53] to[55]
35
1914 AD 471
at 483
36
Ibid
.
37
1922 AD 492
38
At p503-4
39
See,
Matthews and Others v Young
(
supra
) at 503.
40
See,
Matthews and Others v Young
(
supra
) at 503-4.
41
See
Oslo Land Co. Ltd. v The Union Government
1938 AD 584
at
590.
42
See,
Santam Versekeringsmaatskappy Beperk v Byleveldt
1973
(2) SA 146
(A) at 150B.
43
See,
Santam Versekeringsmaatskappy Beperk v Byleveldt
(
supra
)
at 152F-H.
44
1973 (2) SA 146
(A) at 153C-D
45
1970 AC 1
at p14
46
Santam Versekeringsmaatskappy Beperk v Byleveldt
(
supra
)
at 150G
47
1973 (1) SA 769
(A) at 779B-782D
48
See, for example,
Thompson and Another v Minister of Police and
Another
1971 (1) SA 371
(E) and
Newman v Prinsloo and Another
1973 (1) SA 125
(w) at 127G-128A.
49
I have adopted the adjective ‘formulaic’ in respectful
admiration of Cameron JA’s pithy use of the word in
the
Olitzki
case (
supra
).
50
2009 (6) SA 82
(T);
2009 (2) SACR 291
(GSJ) at paragraph [15]
51
At paragraph [15]
52
2003 (1) SA 11
(SCA) at paragraph [5]
53
2005 (4) SA 235
(CC)
54
The ninth letter of the Greek alphabet, transliterated as ‘i’,
being the smallest letter of that alphabet and synonymous
with
something small –
The Oxford English Dictionary
.
55
Drobner, H. 2007,
The
Fathers of the Church
, Peabody,
Massachusetts, USA: Hendrickson Publishers p203-97;
Bettenson,
H. Editor and translator, 1970.
The Later Christian Fathers, A
Selection of the Writings from St Cyril of Jerusalem to St Leo the
Great,
Oxford: Oxford University Press, , p2-3; 48; 63-84.
56
The speech is readily available. I have used
The Penguin Book of
Historic Speeches
edited by Brian MacArthur,1995, London:
Penguin Books, p41-4.
57
The essay is to be found in numerous publications. Here I have used
The Proper Study of Mankind, An Anthology of Essays by Isaiah
Berlin,
edited by Henry Hardy and Roger Hausheer; 1997, London:
Chatto and Windus, p191-242.
58
Ibid
.
59
Ibid
.
60
Ibid
.
61
Ibid
.
62
Ibid
.
63
Ibid
.
64
Ibid
.
65
2010 (4) SA 133
(GSJ) at paragraphs [18] to [31]
66
The point, in my opinion, is well made by Berlin in the essay to
which I have already referred.
67
(
supra
)