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[2015] ZASCA 152
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Naidoo v Minister of Police (20431/2014) [2015] ZASCA 152; [2015] 4 All SA 609 (SCA); 2016 (1) SACR 468 (SCA) (2 October 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20431/2014
DATE:
02 OCTOBER 2015
Reportable
In
the matter between:
CHARMAINE
NAIDOO
..................................................................................................
APPELLANT
And
MINISTER
OF
POLICE
...................................................................................
FIRST
RESPONDENT
T
S
MOLEFE
.................................................................................................
SECOND
RESPONDENT
ISIAH
TUANYANE
MAMPEILE
..................................................................
THIRD
RESPONDENT
IVAN
PERUMAL
.........................................................................................
FOURTH
RESPONDENT
LINDY
KHAZI
..................................................................................................
FIFTH
RESPONDENT
WOMEN’S
LEGAL CENTRE TRUST
INTERVENING
.....................................
AMICUS
CURIAE
Neutral
citation:
Naidoo v Minister of Police
(20431/2014)
[2015] ZASCA 152
(2
October 2015)
Coram:
Maya ADP, Lewis, Petse, Mbha and Mathopo
JJA
Heard:
31 August 2015
Delivered:
2 October 2015
Summary
:
Negligence ─ Duty of care ─ police conduct in breaching
rights under the
Domestic Violence Act 116 of 1998
actionable. Arrest
─ legality of ─ arrest without a warrant ─ person
arrested whilst seeking assistance from
the police under the
Domestic
Violence Act ─ arrest
by police without warrant under
s
40(1)
(b)
or
(q)
of
the
Criminal Procedure Act 51 of 1977
not absolving police from
liability if requirements of the section not met. Damages ─
assault ─ appellant a victim
of domestic violence assaulted by
police while seeking assistance from them ─ appellant suffering
secondary victimisation
─ that factor aggravating the
contumelia
element of the assault.
ORDER
On
appeal from
:
Gauteng
Local Division of the High Court, Johannesburg (Mbongwe AJ sitting as
court of first instance):
1
The appeal is upheld.
2
The order of the court below is set aside and there is substituted
therefor the following:
‘
1
The first defendant is ordered to pay the following sums to the
plaintiff;
(a)
the amount of R200 000 in respect of claim one;
(b)
the amount of R70 000 in respect of claim two;
(c)
the amount of R10 000 in respect of claim three.
(2)
The first defendant shall pay interest on the aforesaid amounts at
the rate of 15,5 per cent per annum from the date of service
of the
summons to the date of payment.
(3)
No order as to costs is made.’
JUDGMENT
Petse
JA (Maya ADP, Lewis, Mbha and Mathopo JJA concurring):
Introduction
[1]
In the early evening of 12 April 2010 the appellant (Ms Charmaine
Naidoo) was assaulted and injured by her former husband, Mr
Charlton
Naidoo, at their common home in Lenasia South, Johannesburg. She was
rendered unconscious. The plaintiff’s daughter,
Ms Cindy
Naidoo, solicited the assistance of the police and paramedics who
responded at different times. The appellant was conveyed
by ambulance
to and admitted at Chris Hani Baragwanath Hospital where she received
medical treatment overnight. The next day she
was discharged from
hospital. This incident was a manifestation of a long-standing
marital conflict between the parties.
[2]
On Wednesday 14 April 2010 the appellant and her sister, Ms Roelene
Vandeyar, went to the Lenasia South Police Station to lay
a charge of
assault against Naidoo under the
Domestic Violence Act 116 of 1998
. A
police officer who attended to the appellant told her that she
required a protection order from the magistrates’ court
before
the police could assist her. In consequence, the appellant went to
the magistrates’ court. There she was advised that
a protection
order was not a pre-requisite for a charge being laid. She then
returned to the police station for assistance but
alas none was
rendered. What followed thereafter was a dreadful series of
traumatic, humiliating, dehumanising and flagrant violations
of the
appellant’s right to dignity, freedom, security of her person
and bodily integrity. Instead of being assisted, she
was arrested,
ostensibly pursuant to a charge of assault laid against her by Naidoo
at the instigation of an Inspector Molefe,
and detained overnight.
The next day, when she was being taken to the Vereeniging
Magistrates’ Court, she was assaulted by
a police officer who
threw her into the rear of a police van. She suffered physical injury
comprising soft tissue injuries in the
right arm and right leg with
severe swelling. In court, the charges against her were withdrawn by
the prosecutor.
[3]
The appellant instituted a delictual action in the Gauteng Local
Division of the High Court, Johannesburg against the Minister
of
Police (the Minister) and certain members of the South African Police
Service (SAPS) for damages. She claimed that members of
the SAPS had
wrongfully and negligently failed to comply with the legal duties
they owed to her in terms of the Domestic Violence
Act 116 of 1998
(the Act), the Regulations and National Instructions issued in terms
of the Act; that they were guilty of
unlawful arrest and
detention and assault; that they had breached the
constitutional duty owed to her by them; and that they
breached a
statutory duty in consequence of which she again allegedly became a
victim of domestic violence on 2 September 2010.
[4]
It was common cause on the pleadings that at all times material to
the appellant’s claims the members of the SAPS, in
their
dealings with the appellant, were acting in the course and within the
scope of their employment as servants of the Minister
and that the
Minister was vicariously liable for their wrongful actions. The trial
came before Mbongwe AJ who, at its conclusion,
dismissed the
appellant’s action with costs.
[5]
In dismissing the appellant’s claims under the various heads
the court below held, inter alia, that: (a) the Minister
could not be
held liable because the members of the SAPS who were said to have
breached the legal duty allegedly owed to the appellant
under the Act
were not cited as defendants and in consequence ‘the court
[could] not entertain a claim unless all the parties
who stand to be
affected by an order the court may give have been brought before
court’; (b) as the third [respondent] had
died before trial, it
was incumbent upon the appellant to substitute his estate or its
representative as a party in the action;
and (c) the arrest and
detention of the appellant was lawful for there had been a complaint
of domestic violence laid against the
appellant by her former
husband. Mbongwe AJ subsequently dismissed the appellant’s
application for leave to appeal which
was granted by this court on
petition to it.
The
facts
[6]
It is necessary to set out the facts as they appear from the evidence
led at the trial in some detail. During the evening of
12 April 2010
the appellant was severely assaulted by Naidoo, from whom she is now
divorced. As a result of the scuffle that had
ensued, he pushed the
appellant causing her to fall to the kitchen floor, hitting her head
against the door. She suffered a concussion
and when she regained her
consciousness she was surrounded by paramedics who stabilised her and
thereafter conveyed her to hospital
for treatment. She was admitted
to hospital, treated overnight and discharged the next day.
[7]
On 14 April 2010 she went to the Lenasia South Police Station
accompanied by Vandeyar, to report the assault and lay a criminal
charge of domestic violence against Naidoo. There, as explained
above, she was attended to by an unidentified member of the SAPS
who
informed her that before she could lay a charge of domestic violence
it was necessary for her to first apply for and obtain
a protection
order under the Act which she could do at the Lenasia Magistrates’
Court. She then went to the magistrates’
court as advised, to
apply for a protection order. She was attended by a certain Ms
Buthelezi who informed her that a protection
order was not a
prerequisite for her to lay a criminal charge under the Act. She was
also told that she could, if so inclined,
apply for a protection
order once she had laid a charge.
[8]
The appellant returned to the charge office and reported to the same
officer who had attended to her in the first instance as
to what
Buthelezi had advised her. That officer then approached Inspector
Molefe, the second respondent, and requested him to assist
the
appellant. Molefe asked her for Naidoo’s telephone numbers
which she furnished. Molefe then telephoned Naidoo and requested
him
to report to the charge office, and then advised the appellant to
wait until he arrived. When Naidoo ultimately arrived Molefe
first
spoke to him on the side, after which he told Naidoo and the
appellant to discuss the matter between themselves to see if
they
could resolve their dispute amicably. This failed.
[9]
The appellant reported to Molefe that their negotiations had come to
nought and that she was consequently intent on pursuing
the charge
against Naidoo. Molefe advised her that Naidoo would similarly lay a
charge against her and if this were to happen she
would also be
liable to be arrested. Molefe then asked both the appellant and
Naidoo to write their respective statements. Once
they had done so,
they were both arrested, charged and detained in separate police
cells at the police station.
[10]
The following morning (15 April 2010) the third respondent, Mr Isiah
Mampeile, then a member of the SAPS, since deceased, informed
the
appellant in her police cell that he had come to take her to court.
As she was being escorted to a police van she asked Mampeile
to allow
her a moment in order to speak to the fourth respondent, Colonel Ivan
Perumal. But Mampeile would have none of that and
sternly ordered her
to board the police van. Mampeile then forcibly flung her into the
rear of the police van. As a result of this
she was traumatised and
suffered pain and swelling in the right side of her body. She then
just lay tearfully in the rear of the
police van. At this stage
Perumal appeared and inquired as to what had happened. She made a
report to Perumal who directed that
she alight from the rear of the
van and sit in the cab. The police van drove to the Vereeniging
Magistrate’s Court where
the charge against her was withdrawn.
She was then released from custody.
[11]
Upon her release, the appellant obtained a medical examination report
form (referred to in the evidence as J88) from the Lenasia
Charge
Office and consulted a Dr Munchi in relation to her assault by
Mampeile. The doctor recorded in his medical report
that the
appellant had suffered soft tissue injuries in her right arm and
right leg with severe swelling. On 16 April 2010 the
appellant
consulted Ms Lisa Vetten, working for a non-governmental organisation
called Tshwaranang Legal Advocacy Centre that rendered
free
counselling to abused women and children. She had three sessions with
a social worker. The social worker subsequently referred
the
appellant to a counselling psychologist, Mr Charl Louw, who was in
private practice in Johannesburg at the time but also did
consulting
work for a number of governmental and non-governmental organisations.
Louw had emigrated to New Zealand by the time
the matter came to
trial. For this reason an application was made during the trial to
allow Louw to testify via video link which
the court below granted.
[12]
Louw prepared a psychological impact report which was admitted into
evidence at the trial by agreement between the parties.
In essence
this report deals with the following: (a) the psychological
assessment of the appellant; (b) clinical impressions formed
by Louw;
(c) the impact of the trauma on the appellant; and (d) his conclusion
and recommendations. Like the social worker, Louw
had three separate
sessions of one hour each with the appellant. Moreover, in his
report, which was confirmed in his evidence at
the trial and which
was not seriously challenged by the respondents, Louw expressed the
opinion that because of her experience
with the police both on 14 and
15 April 2010 the appellant had difficulty in overcoming her ordeal
and was in fact suffering from
chronic Post Traumatic Stress
Disorder. The appellant told the counselling psychologist that
whenever she recalled the incidents
she would experience flashbacks
that emotionally overwhelmed her. She was still emotionally
distressed and this left her irritable
and at times depressed. And
Louw opined that the appellant’s traumatic experiences, whilst
not entirely discounting the impact
of the initial assault by Naidoo,
were causally linked to the experiences she had been subjected to at
the hands of the police.
Louw attributed this to the fact that the
appellant’s anguish was intensified because the police had, by
their conduct, exacerbated
her sense of vulnerability.
[13]
The second and fifth respondents also testified at the trial. But for
present purposes only the evidence of Molefe is material.
He
testified that on 14 April 2010 he was on duty at the Lenasia Charge
Office and attended to the appellant and Naidoo when they
laid
charges of domestic violence against each other. After Molefe had
explained to them (wrongly, as I shall show) that he was
required to
arrest them both, he arrested and detained them in separate cells. On
15 April 2010 they were both taken to the Vereeniging
Magistrates’
Court but the charges were withdrawn by the public prosecutor, Mr
Ludick, apparently for further investigation.
However, nothing came
of the further investigation for the appellant’s daughter,
Cindy, declined to make a statement to him.
Later, both the appellant
and Naidoo withdrew the charges that they had laid against each other
and signed withdrawal statements
confirming that they had no desire
to pursue their respective cases against each other. When asked how
many cases of domestic violence
he had dealt with in his police
career, Molefe said it was ‘quite a lot’ although he
could not give an estimation of
the number. He also stated that he
was ‘not quite sure’ if he knew about the National
Instructions 7 of 1999 issued
by the National Police Commissioner. I
shall elaborate on these national instructions later. And yet he
confirmed that if the appellant
was told that she could not lay a
charge without a protection order, as she had testified, that advice
was wrong. When pressed
to explain why he thought it necessary to
arrest the appellant if the charge laid against her was common
assault, Molefe could
offer no plausible answer, about which more
will be said later.
[14]
On 26 January 2015 this court granted the Women’s Legal Centre
Trust (the Trust) leave to intervene as an
amicus
curiae
and to make written submissions.
At the hearing of the appeal the Trust was permitted to address the
court.
[15]
It bears mentioning at the outset that at the hearing of the appeal
counsel for the appellant informed us that the appellant
was no
longer persisting in claims 4, 5 and 6 on appeal. Consequently only
claims 1, 2 and 3 are the subject of this appeal.
[16]
I now turn to consider the legal requirements for delictual claims of
the nature in issue in this appeal. As I have already
stated, the
appellant instituted a delictual claim in which she sought to hold
the Minister vicariously liable for the alleged
wrongful acts of the
members of the SAPS in their dealings with her on 14 and 15 April
2010.
[17]
It is trite that acts causing physical and emotional harm to a
plaintiff are wrongful. The claims made by the appellants were
based
on a series of acts and breaches of statutory duty.
[18]
The Constitutional Court had occasion to state in
S
v Baloyi (Minister of Justice & another Intervening)
[1999] ZACC 195
;
2000 (2) SA 425
(CC) para 13 that freedom from
violence is fundamental to the equal enjoyment of human rights and
freedom. It went on to state
─ an observation that is pertinent
in the present context ─ that the sting of domestic violence
lies in its ‘hidden,
repetitive character and its immeasurable
ripple effect on society and in particular family life’. The
Constitutional Court
also stressed that domestic violence reinforces
patriarchal domination given its ‘systemic, pervasive and
overwhelmingly
gender-specific’ nature (para 12). And that its
harrowing effects are made all the more devastating because of ‘the
ineffectiveness of the criminal justice system in addressing family
violence’ which in turn ‘intensifies the subordination
and helplessness of the victims’ (para 12).
[19]
Mr Wesley, who appeared with Ms Kazee for the appellant, contended
that the court below erred in rejecting the evidence of
the appellant
and that had it considered it against the relevant constitutional and
statutory backdrop it would have been driven
to a different
conclusion. Mr Wesley submitted that the court below gave a cursory
summation of the evidence which manifests a
fundamental misconception
on its part.
[20]
At this juncture it is necessary to remind oneself that the appellant
approached the police to seek assistance under the Act,
its
Regulations and the police standing orders as encapsulated in the
National Instruction 7 of 1999
[1]
issued by the National Commissioner of Police pursuant to s 18(3) of
the Act. In
Minister
of Safety and Security v Venter & others
[2011] ZASCA 42
;
2011 (2) SACR 67
(SCA) this court, recognising the
extensive nature of the rights and remedies accorded victims of
domestic violence under the Act,
emphasised (para 19) the manifest
object of the Act spelt out in the preamble which is to ‘afford
the victims of domestic
violence the maximum protection from domestic
abuse that the law can provide.’
[21]
Section 2 of the Act provides that:
‘
2
Duty to assist and inform complainant of rights
Any
member of the South African Police Service must, at the scene of an
incident of domestic violence or as soon thereafter as is
reasonably
possible, or when the incident of domestic violence is reported─
(a)
render such assistance to the complainant as may
be required in the circumstances, including assisting or making
arrangements for
the complainant to find a suitable shelter and to
obtain medical treatment;
(b)
if it is reasonably possible to do so, hand a
notice containing information as prescribed to the complainant in the
official language
of the complainant's choice; and
(c)
if it is reasonably possible to do so,
explain to the complainant the content of such notice in the
prescribed manner, including
the remedies at his or her disposal in
terms of this Act and the right to lodge a criminal complaint, if
applicable.’
[22]
Equally important are the provisions of paragraph 7(1) of the
National Instruction that impose a duty on members of the SAPS
to
render assistance to victims of domestic violence by receiving and
investigating the complaint and which further decrees that
they may
not shirk this responsibility by directing the complainant to seek
other means
[2]
as Molefe had
sought to do. Some of the acts complained of by the appellant were
plainly deliberate. Others, such as the giving
of incorrect advice
and failing to comply with duties imposed on members of the SAPS,
were not. Thus the question arises as to
whether they were negligent
and in determining that one must ask
whether
a reasonable person in the position of the members of the SAPS would
have taken precautions to guard against the harm suffered
by the
appellant. The answer must be in the affirmative regard being had to:
(a) the nature of the appellant’s complaint;
(b) the wide
ranging remedies accorded a victim of domestic violence by the Act;
(c) the comprehensive and explicit directives
given to members of the
SAPS both in the Regulations promulgated under s 18(3) of the
Act and the National Instructions
7 issued by the National
Commissioner of Police all of which proclaim a single-minded
objective which is to afford victims of domestic
violence the maximum
protection from domestic abuse that the law can provide.
[3]
Negligence
[23]
In
Kruger v Coetzee
1966 (2) SA 428
(A) at 430 E-H this court
stated the test for negligence as follows:
‘
For
the purposes of liability
culpa
arises if ─
(a)
a
diligens paterfamilias
in the position of the defendant ─
(i)
would forsee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant has failed to take such steps.
.
. . Whether a
diligens paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case. No hard and fast
basis can be laid down.’
[24]
In determining the question of negligence one must of course pay heed
to the warning of Nicholas AJA in
S v Bochris Investments (Pty)
Ltd & another
[1987] ZASCA 140
;
1988 (1) SA 861
(A) at
866I-867C that:
‘
In
considering this question [reasonable forseability], one must guard
against what Williamson JA called “insidious subconscious
influence of
ex post facto
knowledge” (in
S v Mini
1963 (3) SA 188
(A) at E-F). Negligence is not established by showing
merely that the occurrence happened (unless the case is one where
res
ipsa loquitur
),
or by showing after it happened how it could have been prevented. The
diligens paterfamilias
does not have “prophetic foresight”. (
S
v Burger
[1975 (4) SA 877
(A)] at
879D). In
Overseas Tankship (UK) Ltd v
Morts Dock & Engineering Co Ltd (The Wagon Mound)
[1961] UKPC 1
;
1961 AC 388
(PC) ([1961] All ER 104) Viscount Simonds said at 424
(AC) and at 414G-H (in All ER):
“
After
the event, even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of the reasonable man which alone
can
determine liability.”’
See
also in this regard:
Sea Harvest
Corporation (Pty) Ltd & another v Duncan Dock Cold Storage (Pty)
Ltd & another
[1999] ZASCA 87
;
2000
(1) SA 827
(SCA) para 27.
[25]
It is trite that the question whether the precautions taken to guard
against foreseeable harm were reasonable or not is a factual
one.
This was explained by Scott JA in
Cape Metropolitan Council v
Graham
2001 (1) SA 1197
(SCA) as follows (para 7):
‘
Turning
to the question of negligence, it is now well established that
whether in any particular case the precautions taken to guard
against
foreseeable harm can be regarded as reasonable or not depends on
a consideration of all the relevant circumstances
and involves a
value judgment which is to be made by balancing various competing
considerations. These would ordinarily be:
“
(a)
the degree or extent of the risk created by the actor's conduct;
(b)
the gravity of the possible consequences if the risk of harm
materialises;
(c)
the utility of the actor's conduct; and
(d)
the burden of eliminating the risk of harm'.
.
. . If a reasonable person in the position of the defendant would
have done no more than was actually done, there is, of
course, no
negligence.”’ (Citations omitted)
On
the facts of this case the question to be answered is whether a
reasonable person in the position of the members of the SAPS
would
have taken precautions to guard against the harm suffered by the
appellant. Put differently, the question is whether in the
light of
the peculiar facts of this case the conduct of the police fell short
of the conduct of the notional reasonable person.
(See in this regard
Sea Harvest Corporation
para 21.) Undoubtedly, the answer must be in the affirmative.
Factual
and legal causation
[26]
In
Minister
of Safety and Security & another v Carmichele
[2003]
ZASCA 117
2004 (3) SA 305
(SCA) this court reaffirmed a
well-established principle that causation has two elements. In
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(AD) at 700E-I Corbett CJ
explained these elements as follows:
‘
The
enquiry as to factual causation is generally conducted by applying
the so-called “but-for” test, which is designed
to
determine whether a postulated cause can be identified as a
causa
sine qua non
of the loss in question.
In order to apply this test one must make a hypothetical enquiry as
to what probably would have happened
but for the wrongful conduct of
the defendant. This enquiry may involve the mental elimination of the
wrongful conduct and the
substitution of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff’s
loss would have ensued or not. If it
would in any event have ensued, then the wrongful conduct was not a
cause of the plaintiff’s
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa sine qua non
of
the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine qua non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act is linked
sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too remote. This
is basically a juridical
problem in the solution of which considerations of policy may play a
part. This is sometimes called “legal
causation”.’
(Citations omitted.)
Claim
one
[27]
Counsel for the
amicus
referred
us to a number of international and regional instruments whose
purpose is to eradicate all forms of gender-based discrimination
that
have the effect of impairing the enjoyment by women of fundamental
rights and freedom. It is internationally accepted that
states that
subscribed to those instruments must take all measures necessary to
provide effective protection to women against all
forms of violence.
The Convention on the Elimination of All Forms of Discrimination
Against Women
[4]
and the
Protocol to the African Charter on Human Peoples’ Rights on the
Rights of Women in Africa,
[5]
amongst others, have as their particular focus the protection of the
right to human dignity and the protection of women against
all forms
of violence that member states are obliged to enforce by legislative
measures. Both the Constitutional Court and this
court have
reaffirmed the principle that the State is obliged under
international law to protect women against violent crime and
gender
discrimination inherent in violence against women.
[6]
[28]
Taking cognisance of the international and regional initiatives
relating to the protection of women against all gender-based
discrimination, South Africa enacted the Act. One of the objects of
the Act in the preamble declares that:
‘
AND
HAVING REGARD to the Constitution of South Africa, and in particular,
the right to equality and to freedom and security of the
person; and
the international commitments and obligations of the State towards
ending violence against women and children, including
obligations
under the United Nations Conventions on the Elimination of all Forms
of Discrimination Against Women and the Rights
of the Child; . . .’
[29]
Counsel for the appellant argued that the respondents violated the
appellant’s right to freedom and security of her person
and
treated her in a cruel and degrading way. Consequently, concluded the
argument, the appellant was subjected to secondary victimisation
which intensified and prolonged her trauma. And such conduct was in
breach of their statutory obligations both under the Act, the
Regulations and paragraph 7(1) of the National Instruction
[7]
which, amongst others, impose a duty on members of the SAPS to render
assistance to victims of domestic violence.
[30]
Counsel for the appellant readily accepted that although the conduct
of Molefe constituted a breach of his constitutional and
statutory
duties owed to the appellant in a most fundamental way, that conduct
was not pertinently relied upon as underpinning
this part of the
appellant’s action. It was, however, contended that the
evidence led at the trial to which the respondents
acquiesced,
relating to the conduct of Molefe, meant that the court below was not
precluded from considering such evidence. Of
course, it is trite that
litigants are obliged to allege in their pleadings all the material
facts on which they rely for their
cause of action. Ordinarily it is
impermissible for a party to plead a particular cause and at trial
seek to establish a different
case. Nor is it permissible for a trial
court to base its decision on something outside the parameters of the
pleadings.
[8]
[31]
But that practice, hallowed though it is, is not cast in stone. Where
the issue has been fully canvassed in evidence and will
not occasion
prejudice to the opponent a party may be allowed to rely on an issue
not covered in the pleadings. In
South British Insurance Co Ltd v
Unicorn Shipping Lines (Pty) Ltd
1976 (1) SA 708
(A) this court
put it thus (at 714G):
‘
However,
the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in evidence.
This means fully canvassed by both sides in the sense that the court
was expected to pronounce upon it as an issue.’
[9]
[32]
On his own version, Molefe did not assist the appellant immediately
when she sought assistance upon returning from the magistrates’
court. He caused her to wait because he had asked Naidoo to come to
the police station first. When Naidoo eventually arrived he
suggested
to the parties that they should rather endeavour to reconcile. When
the appellant informed him that she was still determined
to pursue
her charge against Naidoo, Molefe suggested that he lay a
counter-charge against the appellant pointing out to the latter
that
she also faced arrest.
[33]
Counsel for the respondents argued first that the appellant was
assisted by the police to lay her charge, albeit belatedly,
after
Naidoo had arrived at the police station and had himself also laid a
counter-charge against the appellant. Second, it was
submitted that
if the appellant had established that the members of the SAPS had
breached their legal duty as alleged, she was
not without a remedy
and that her recourse was to require that the police invoke s
18(4)
(a)
of the Act. Section 18(4)
(a)
provides, inter alia, that failure by a member of the SAPS to comply
with an obligation imposed in terms of the Act or the national
instructions issued by the Commissioner under subsection (3)
constitutes misconduct. These submissions are without merit. The
first submission is belied by the evidence led at the trial which has
already been set out above. The second submission based on
s 18(4)
(a)
of the Act is similarly misplaced. That section, as already explained
above, does not purport to provide for delictual liability
flowing
from a breach of a legal duty imposed on members of the SAPS to take
reasonable positive steps to prevent harm to persons
in the position
of the appellant. Accordingly, I am satisfied that what the appellant
experienced on 14 April 2010 at the hands
of members of SAPS
constituted a breach of the legal duty that those members owed to
her. Thus the emotional harm, humiliation
and trauma that the
appellant was subjected to is the antithesis of what the Act, the
Regulations and the National Instruction
─ with their extensive
remedies ─ seek to accomplish.
Did
appellant suffer psychological harm?
[34]
In support of this part of her claim the appellant called Louw, a
counselling psychologist, as an expert witness. As
I have
stated before, the expert report of Louw was admitted by consent and
its contents and his evidence at the trial were not
seriously
challenged by the respondents. After interviewing the appellant on
three different occasions Louw set out to ascertain
whether the
appellant exhibited any symptoms of Post-Traumatic Stress Disorder.
For this purpose he employed two psychometric methods.
First, he used
the Impact of Event Scale-Revised (IES-R) which is designed to assess
current subjective distress for any specific
life event. Second, he
used the DSM-IV Criteria for Post-Traumatic Stress Disorder.
According to Louw the results of the IES-R
assessment revealed that
the appellant, inter alia: (a) re-experienced the traumatic event ‘at
a clinically significant level’;
(b) attempted to avoid being
reminded about the traumatic event to a clinically significant level;
and (c) is ‘. . . exposed
to feelings of psychological and
physical hyperarousal and that she feels irritable, struggles to
concentrate, has an exaggerated
startle response and feels restless
as a result of the trauma’.
[35]
The diagnostic results of the DSM-IV are set out in Louw’s
report from which he concluded that the incidents that befell
the
appellant ‘continue[d] to have a significant impact’ on
her and that ‘she is affected on various social,
interpersonal,
emotional and psychological areas of functioning’ which is
indicative of the severity of the incident. And
that the information
elicited from the appellant ‘is consistent with a person
suffering from chronic Post Traumatic Stress
Disorder’,
directly attributable to the incidents.
[36]
It was contended on behalf of the respondents that because the
appellant was already traumatised as a result of the domestic
violence perpetrated by Naidoo before she went to the police it could
not be asserted with reasonable certainty that her psychological
condition was caused by the incidents that she experienced at the
police station. In my view, this aspect was adequately dealt
with by
Louw in his evidence at the trial in response to what was put to him.
It was put to Louw under cross-examination as to
whether he had
investigated the trauma suffered by the appellant following the
physical abuse perpetrated by Naidoo. In response,
Louw said that he
had asked the appellant specifically about this and that he had
focussed, in his assessment, on that very aspect
‘to gain an
insight into how she understands that trauma’. And his
assessment was that her traumatic experiences ‘link[ed]
specifically to experiences she had at the police station’.
This was likewise taken up by the trial court which sought
elucidation
from Louw as to ‘how he would draw the line in
[his] assessment and say these effects are as a result of the abuse
by [Naidoo]
and these . . . are as a result of the conduct of the
police…’ Again Louw explained that given his training
and expertise
as a clinician he was able, from the sessions he had
with the appellant and whilst acknowledging that the impact of the
domestic
violence could not be entirely discounted, to conclude that
the appellant could clearly relate to her experiences at the police
station as harrowing. Moreover there has been no suggestion from the
evidence that the appellant was malingering.
[37]
In light of the aforegoing I am satisfied that the appellant has
succeeded in establishing her first claim against the respondents.
Claim
two
[38]
The appellant’s second cause of action, as will be recalled,
was that her arrest and detention were unlawful. The Minister
resisted this claim and invoked
s 40(1)
(b)
and
(q)
of
the
Criminal Procedure Act 51 of 1977
to justify the arrest.
Section
40
(1)
(b)
and
(q)
of the CPA provide that a peace
officer (such as Molefe) may without warrant arrest any person ─
‘
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1 . . .;
.
. .
(q)
who is reasonably suspected of having committed an
act of domestic violence as contemplated in
section 1
of the
Domestic
Violence Act, 1998
,
which constitutes an
offence of which violence is an element
.’
(My emphasis.)
[39]
The Bill of Rights in the Constitution guarantees the right of
security and freedom of the person, including the right, in
the words
of s 12(1)
(a)
of the Constitution, ‘not to be deprived
of freedom arbitrarily or without just cause’. In
Zealand v
Minister of Justice and Constitutional Development & another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para 25, the Constitutional
Court said the following:
‘
This
is not something new in our law. It has long been firmly established
in our common law that every interference with physical
liberty is
prima
facie
unlawful. Thus, once the claimant establishes that an interference
has occurred, the burden falls upon the person causing that
interference to establish a ground for justification. In
Minister
van Wet en Orde v Matshoba
[1989] ZASCA 129
(A);
1990 (1) SA 280
, the Supreme Court of Appeal
again affirmed that principle, and then went on to consider exactly
what must be averred by an applicant
complaining of unlawful
detention. In the absence of any significant South African authority,
Grosskopf JA found the law concerning
the
rei
vindicatio
a
useful analogy. The simple averment of the plaintiff’s
ownership and the fact that his or her property is held by the
defendant
was sufficient in such a case. This led that court to
conclude that, since the common-law right to personal freedom was far
more
fundamental than ownership, it must be sufficient for a
plaintiff who is in detention simply to plead that he or she is being
held
by the defendant. The onus of justifying the detention then
rests on the defendant. There can be no doubt that this reasoning
applies
with equal, if not greater, force under the
Constitution.’
[10]
[40]
And, as was explained by Van Heerden JA in
Duncan
v Minister of Law and Order
1986 (2) SA
805
(A) at 818G-H, once the jurisdictional requirements of the
section are satisfied, the peace officer may, in the exercise of his
discretion, invoke the power to arrest permitted by the law. However,
the discretion conferred by s 40(1) of the CPA must be properly
exercised, that is, exercised in good faith, rationally and not
arbitrarily. If not, reliance on s 40(1) will not avail the peace
officer.
[41]
It is now settled that the purpose of the arrest is to bring the
arrestee before the court for the court to determine whether
the
arrestee ought to be detained further, for example, pending further
investigations or trial. (See
Minister
of Safety and Security v Sekhotho & another
[2010] ZASCA 141
;
2011 (5) SA 367
paras 30-31.) Thus it goes without
saying that an arrest will be irrational and consequently unlawful if
the arrestor exercised
his discretion to arrest for a purpose not
contemplated by law. This brings me to the next inquiry, that is,
whether the respondents
established at the trial that Molefe
exercised the discretion to arrest the appellant in a proper
manner.
[11]
On this aspect the
evidence of Molefe is critical. Under cross-examination he said:
‘
It
is domestic violence. I cannot allow the two people to go back under
the same roof again. I do not know what is going to happen
there. So
it is better if we separate them until then, they will go to court
and court decide. . . . Because sometimes court say
one must leave
the house and go stay, look for a place somewhere. But that should be
decided by court, not me.’
[42]
In my view this piece of evidence ineluctably leads to the conclusion
that Molefe either exercised his discretion to arrest
arbitrarily or
for an improper purpose, that is, to separate the appellant from
Naidoo until she was brought to court the following
day. This is all
the more so if regard is had to the fact that it was: (a) only at his
instance that Naidoo laid a counter-charge
of domestic violence
against the appellant; and (b) he had, contrary to the prescripts of
the Act, the Regulations and the National
Instructions, insidiously
advised the appellant to settle the matter with Naidoo under threat
of arrest in the event that the
matter was not settled.
Accordingly, in the light of the foregoing it cannot be said that
Molefe, in exercising his discretion
to arrest as he saw fit, ‘stayed
within the bounds of rationality’. Moreover, on his own
account, Molefe considered
himself obliged to arrest the appellant
because a docket of domestic violence had been opened against her and
that she was therefore
liable to be arrested as a matter of course.
The court below agreed and held that ‘it was standard practice’
that an
arrest had to follow as a matter of course. No consideration
was given to the crucial question whether the charge of common
assault
laid by Naidoo against the appellant was an offence referred
to in Schedule I so as to satisfy one of the jurisdictional facts
required for the proper exercise of the power under s 40(1)
(b)
of the CPA. And in any event the ostensible charge laid against the
appellant by Naidoo was, on the evidence, instigated by Molefe
himself as a ruse to cajole her to withdraw the charge that she had
laid against him.
[43]
As to s 40(1)
(q)
of the CPA the
amicus
argued that it too does not avail the respondents even had it been
relied upon by them. The gravamen of the
amicus’
submission was that there was no evidence led at the trial to
establish that Molefe had entertained a reasonable suspicion that
the
appellant had committed an act of domestic violence constituting an
offence of which violence is an element. Consequently,
concluded the
argument, it could not be asserted that Molefe had exercised any
discretion he might have had in good faith, rationally
and not
arbitrarily. In my view, it is not open to the respondents to invoke
s 40(1)
(q)
of the CPA for the same reasons set out above in relation to s
40(1)
(b)
.
And there was no serious suggestion, still less evidence, that the
appellant had committed an act of domestic violence which constitutes
an offence of which violence is an element.
Claim
three
[44]
The appellant’s third cause of action was the allegation in her
particulars of claim that on 15 April 2010 she was assaulted
by a
member of the SAPS. But, as I have already stated, the member
concerned had died by the time the matter came to trial. The
court
below held that this claim could not be entertained and, in
consequence, it was similarly dismissed. In so doing the court
below
reasoned thus:
‘
The
aforementioned principle and consequence of a failure to bring an
interested party before the court applies equally to the plaintiff’s
claim 3. The plaintiff was advised during a pre trial conference that
the 3
rd
defendant had since passed on. Since the plaintiff’s claim is
for monetary compensation, it was necessary for the plaintiff
to
reign in the estate of the deceased or the representative thereof as
a party to the proceedings in the stead of the deceased
for, any
order that may be granted in favour of the plaintiff will impact on
the deceased’s estate. The plaintiff failed
to reign in the
estate and, in the result this claim must fail.’
[45]
The court below elaborated upon this reasoning in its judgment
refusing leave to appeal and stated that the withdrawal statement
signed by the appellant (which was common cause) exonerated the
[respondents]. In this court the reasoning of the court below was
criticised by the appellant’s counsel. As to the so-called
failure by the appellant to substitute the estate of the deceased
police officer, it was contended that the fact that the respondents
had admitted in their plea that the Minister’s servant
who
assaulted the appellant was acting in the course and scope of his
employment was tantamount to an admission that the Minister
was
vicariously liable for the wrongful conduct of the member concerned.
As to the withdrawal statement, it was argued that on
its terms it
amounted to no more than a withdrawal of the charge that the
appellant had laid against Naidoo under the Act. It was
not and did
not purport to be a waiver by the appellant of her rights to hold the
Minister delictually liable for the wrongful
conduct of the
Minister’s servants.
[46]
Counsel for the Minister accepted in this court that the Minister is
vicariously liable for the wrongful acts of his servants.
But he
persisted in his support of the reasoning of the court below in
relation to the withdrawal statement. I am satisfied, however,
that
the appellant’s contention must prevail and that the
respondents’ counter is without merit and must be rejected
for
the following reasons. First, when the appellant signed the statement
she had had no discussion with Molefe that she was contemplating
instituting action for delictual damages against the respondents.
Second, when the charge against the appellant was withdrawn by
the
prosecutor on 15 April 2010 this was to allow Molefe, as
investigating officer, time to conduct further investigations. Hence
Molefe sought a statement from the appellant’s daughter who
declined to furnish one. Third, once Molefe accepted that there
was
no prospect of obtaining a statement from the appellant’s
daughter, he turned to the appellant who told him that she
and Naidoo
had decided to withdraw their respective charges against each other.
Fourth, is the text of the statement itself. What
was withdrawn was
‘the case against the accused’. It cannot reasonably be
suggested that the respondents are the accused
referred to therein
for the appellant had laid no charge against them. Nor was Molefe
investigating any charge against the respondents.
How it was then
thought by the court below that the withdrawal statement was a waiver
of the appellant’s rights to claim
delictual damages against
the respondents is difficult to fathom.
Quantum
[47]
This brings me to the issue of quantum. The appellant claimed
R200 000 for the breach of the legal duty owed to her by
the
members of the SAPS, R70 000 for her unlawful arrest and
detention and R10 000 for assault. It was argued on behalf
of
the appellant that these amounts are both fair and reasonable when
viewed against past awards in comparable cases. On the other
hand
counsel for the respondents submitted that these amounts are
excessive and call for moderation. Counsel submitted that this
court
should apply apportionment so as to ameliorate the respondents’
situation. But the difficulty confronting the respondents
on this
score is that apportionment was neither pleaded nor canvassed at the
trial. It was also not even foreshadowed in the respondents’
heads of argument.
[12]
In any
event I fail to see how it could conceivably be said that the
appellant was contributorily negligent in relation to the
damages
suffered by her on the facts of this case.
[48]
It should, however, be emphasised that the facts of this case need to
be considered in their entirety. Whilst it is permissible
to have
regard to past awards in comparable cases the court must take
cognisance of the fact that few cases are directly comparable.
And,
as Nugent JA observed in
Minister of
Safety and Security v Seymour
2006 (6)
SA 320
(SCA), ‘money can never be more than a crude solatium
for the deprivation’ of liberty.
[49]
An examination of the earlier cases awarding damages of the nature in
issue in this case reveals that our courts have consistently
placed a
high premium on personal liberty, the infringement of rights to
dignity and the right to freedom and security of the person.
And
where these rights have been gratuitously undermined, as has happened
in this case, an award of aggravated damages (as opposed
to punitive
damages that are not allowed) may be justifiable.
[13]
References have already been made to the appellant’s traumatic
experiences as a consequence of the egregious conduct of the
members
of the SAPS and these need not be repeated. Suffice it to say that,
in my view, the description of the appellant’s
experiences by
Louw is apt. He said that by not assisting the appellant the police
‘exacerbated her sense of vulnerability’.
Consequently,
and taking into account all the circumstances, the amounts claimed
under the three heads in issue in this appeal
are, in my view,
appropriate.
Conduct
of the trial
[50]
Before concluding, it is unfortunately necessary to comment on what I
consider to be the unacceptable manner in which the learned
judge
conducted the trial. There are several instances that demonstrably
show the frequency with which the appellant’s legal
representative was hampered in her presentation of the appellant’s
case in the court below. On occasions too numerous to
detail in this
judgment, the legal representative was unduly denied the opportunity
to deal with critical issues pertinent to the
appellant’s case.
The legal representative was, inter alia, precluded from eliciting
evidence from the appellant concerning:
(a) what her daughter and
sister had told her even though the court below had been informed
that they would be called as witnesses,
as indeed they were; and (b)
the things that the appellant had discussed with Perumal concerning
her experiences with the police.
The learned trial judge disallowed
these and other related questions because he wrongly perceived that
the evidence that the appellant
sought to give would be hearsay and
thus inadmissible.
[51]
The disallowance of such evidence was a manifestation of the
fundamental misconception on the part of the learned judge as
to what
constitutes hearsay evidence. He was seemingly oblivious to the
existence of the
Law of Evidence Amendment Act 45 of 1988
and even
most significantly and troubling the import of
s 3(1)
(b)
and
s 3(3)
thereof both of which provide for the provisional
admission of hearsay evidence if the person upon whose credibility
the probative
value of such evidence depends, will testify at such
proceedings.
[14]
Thus the
appellant ought to have been permitted to proffer such evidence and
it was wrong of the learned judge to impose a blanket
embargo, as he
had done, on such evidence.
[52]
Even more disconcerting were the numerous unwarranted interruptions
by the learned judge when he wrongly prevented or restricted,
at
critical stages of the trial, the appellant’s legal
representative when she led or cross-examined witnesses. To compound
matters, some of the interventions bordered on discourtesy and
cynicism towards the witnesses, and counsel were not spared either.
In
Distillers Korporasie (SA) Bpk v Kotze
1956 (1) SA 357
(A)
at 361A-H this court considered the question whether disallowing
legitimate questions sought to be put to a witness by cross-examining
counsel is an irregularity. This court answered that question thus:
‘
The
first question to be considered was whether there had been an
irregularity. The answer could not be in doubt. The disallowance
of
proper questions sought to be put to a witness by cross-examining
counsel is an irregularity which entitles the party represented
by
the cross-examiner to relief from a Higher Court, unless that Court
is satisfied that the irregularity did not prejudice him.’
(Citations omitted.)
Although
these remarks were made in relation to cross-examination, by parity
of reasoning, they apply with equal force to examination-in-chief.
[53]
The impartial adjudication of disputes which come before the courts
is the cornerstone of our legal and judicial system. This
requires
judicial officers to conduct trials in an open-minded and fair
manner.
[15]
It is equally
vitally important that judicial officers be sensitive and
compassionate to the plight of those who appear before
them for the
rule of law can only flourish if the citizenry’s confidence in
the administration of justice is entrenched.
[54]
The remarks of the Constitutional Court, although made in a different
albeit related context, are apposite. The Constitutional
Court said
the following:
‘
.
. . Civility and courtesy should always prevail in our courts.
Litigants should leave our courts with a sense that they were given
a
fair opportunity to present their case. This is crucial if public
confidence in the judicial system is to be maintained. . .
’
[16]
Regrettably,
the learned judge in the court below was seemingly oblivious to these
judicial injunctions. Accordingly, it was perfectly
understandable
when counsel for the
amicus
submitted
that the appellant, who had suffered primary victimisation by her
former husband and secondary victimisation by the police
yet again
bore the brunt of tertiary victimisation during the trial.
[55]
It remains to express our gratitude to counsel for the
amicus
,
Ms O’Sullivan and Ms Williams, for their helpful submissions in
this court and for making available to us copies of international
and
regional articles and instruments dealing with obligations of member
states to combat all gender-based discrimination and violence
against
women that have the effect of impairing the quality and enjoyment of
their fundamental rights and freedoms.
Conclusion
[56]
It follows from what has been said above that the appeal must
succeed. This conclusion renders it unnecessary to consider the
appeal against the costs order made by the court below. This result
would ordinarily have meant that the appellant is entitled
to her
costs both in this court and the court below. However, we were
informed by counsel for the appellant that her legal representation
both in this court and the court below is on a pro bono basis. That
being the case no order as to costs is sought in both courts
and
consequently none will be made.
[57]
There are two final issues to consider. The first is the rate at
which
mora
interest is to be computed. The
Prescribed Rate of Interest Act 55 of
1975
empowers the Minister of Justice to prescribe a rate of interest
for purposes of the Act from time to time. By virtue of that power
the Minister prescribed a new rate of interest, effective from 1
August 2014, reducing the prescribed rate of interest from 15,
5 per
cent per annum to 9 per cent per annum.
[17]
However, as the appellant’s action was instituted before the
effective date the reduced rate of 9 per cent per annum does
not
apply in this case.
[18]
Allied
to the first issue is the secondary issue that this court is
empowered, in the exercise of its discretion, to award interest
in
respect of unliquidated debts from the date of demand. Taking into
account the facts of this case this will be a proper case
for this
court to invoke that power.
[19]
[58]
Accordingly, the following order is made:
1
The appeal is upheld.
2
The order of the court below is set aside and there is substituted
therefor the following:
‘
1
The first defendant is ordered to pay the following sums to the
plaintiff;
(a)
the amount of R200 000 in respect of claim one;
(b)
the amount of R70 000 in respect of claim two;
(c)
the amount of R10 000 in respect of claim three.
(2)
The first defendant shall pay interest on the aforesaid amounts at
the rate of 15,5 per cent per annum from the date of service
of the
summons to the date of payment.
(3)
No order as to costs is made.’
X
M Petse
Judge
of Appeal
APPEARANCES:
For
Appellant: M D Wesley (with him S Kazee)
Instructed
by:
Webber
Wentzel, Johannesburg
Webbers,
Bloemfontein
For
the
Amicus Curiae
: M O’Sullivan (with her J Williams)
Instructed
by:
Women’s
Legal Centre Trust, Cape Town
Webbers,
Bloemfontein
For
Respondents: M W Dlamini
Instructed
by:
The
State Attorney, Johannesburg
The
State Attorney, Bloemfontein
[1]
Promulgated
in GN207, 28581, 3 March 2006. In essence National Instruction 7 of
1999 contains a host of comprehensive guidelines
having force of law
which prescribes to members of the SAPS how they must deal with
domestic violence complaints and what they
may or may not do.
[2]
Paragraph
7 (1) reads thus:
‘
In
terms of the
Domestic Violence Act a
complainant may approach the
Service for assistance at any time, irrespective of when or where
the incident took place. Where
a criminal charge is laid by the
complainant, it is the responsibility of the member receiving the
complaint to open a docket
and have it registered for investigation
and the member may not avoid doing so by directing the complaint to
counselling or conciliation
services.’
[3]
See
in this regard the Preamble to the Act which recognises that
domestic violence is a serious social evil, prevalent in the
country, affecting the most vulnerable member of society and that
current remedies available having proved ineffective to deal
with
this scourge. And its expressed purpose is to, inter alia, provide
measures to ensure that the relevant organs of state
give full
effect to the provisions of the Act.
[4]
Ratified
by South Africa on 15 December 1995.
[5]
Ratified
by South Africa on 17 December 2004.
[6]
See,
eg,
Baloyi
(para
13);
Carmichele
(para
62) and
Van
Eeden
(para 15).
[7]
Footnote
1.
[8]
Imprefed
(Pty) Ltd v National Transport Commission
[1993]
ZASCA 36
;
1993 (3) SA 94
(A) at 107A-E.
[9]
See
also
Minister
of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) paras 11-12.
[10]
See
also:
Minister
of Law and Order & others v Hurley & another
[1986]
ZASCA 53
;
1986 (3) SA 568
(A) at 589E-F which held that: ‘An
arrest constitutes an interference with the liberty of the
individual concerned, and
it therefore seems fair and just to
require that the person who arrested or caused the arrest of another
person should bear the
onus of proving that his action was justified
in law.’
[11]
Footnote
11 at 818H-J.
[12]
See,
eg,
Thompson
v South Africa Broadcasting Corporation
[2001] ZASCA 7
;
2001 (3) SA 746
(SCA) para 7 where it was held that
the function of oral argument, especially in a court of appeal is
supplementary to the written
argument.
[13]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC) paras 62 and 83.
[14]
Section
3, in material parts, provides as follows:
‘
Hearsay
evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
─
. .
.
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
. .
.
(3)
Hearsay evidence may be provisionally admitted in terms of
subsection 1(6) if the court is informed that the person upon whose
credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account. . .’
[15]
S
v Roberts
1999
(4) SA 915
(SCA) para 25.
[16]
Bernert
v Absa Bank Ltd
[2011]
ZACC 28
;
2011 (3) SA 92
(CC) para 98.
[17]
See
GNR 554, GG 37831 dated 18 July 2014.
[18]
See
in this regard
Davehill
(Pty) Ltd v Community Development Board
1988
(1) SA 290
(A) at 300G-302A.
[19]
See
s 2A(5)
of the
Prescribed Rate of Interest Act 55 of 1975
which
empowers a court in the exercise of its discretion to award interest
in respect of unliquidated debts from the date of
demand.