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[2014] ZASCA 84
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Minister For Safety and Security v Scott and Another (969/2013) [2014] ZASCA 84; [2014] 3 All SA 306 (SCA); 2014 (6) SA 1 (SCA) (30 May 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no
:
969/2013
Reportable
In
the matter between:
MINISTER FOR
SAFETY AND
SECURITY
.................................................................
Appellant
(Now
MINISTER OF POLICE)
and
JACO
SCOTT
........................................................................................................
First
Respondent
SCOTTCO (PTY)
LTD
......................................................................................
Second
Respondent
Neutral
citation:
Minister for Safety and
Security v Scott
(969/2013)
[2014]
ZASCA 84
(30 May 2014)
Coram:
Navsa, Shongwe, Theron and Willis JJA and Legodi
AJA
Heard:
02 May 2014
Delivered:
30 May 2014
Summary:
Delict – pure economic loss –
contract between second respondent and American entity cancelled due
to first respondent’s
arrest and detention – loss of
contractual income and profits suffered by a stranger to a contract –
public policy
considerations dictating that delictual liability not
be imposed – danger of indeterminate liability - quantum –
first
respondent wrongfully arrested and detained for about nine
hours – award of R75 000 altered to R30 000.
ORDER
On
appeal from:
North Gauteng
High
Court, Pretoria (Vorster AJ sitting as court of first instance):
1 The late filing of
the appellant’s supplementary record and heads of argument is
condoned.
2 The appeal is
reinstated.
3 The respondents
are directed to pay the costs of opposition in the reinstatement
application.
4 The appeal is
upheld with costs including the costs of two counsel.
5 The order of the
high court is set aside and replaced with the following:
‘
(i)
The defendant is directed to pay the first plaintiff the amount of
R30 000 being damages for unlawful arrest and detention,
which
amount shall bear interest at the rate of 15,5 per cent per annum
from 8 February 2013 until the date of payment and in relation
thereto, the defendant is directed to pay the first plaintiff’s
costs.
(ii) The second
plaintiff’s claim for special damages is dismissed and in
relation thereto the second plaintiff is to pay
the defendant’s
costs.’
JUDGMENT
Theron
JA (Navsa, Shongwe and Willis JJA and Legodi AJA concurring):
[1]
During 2005 Mr Jaco Scott (Scott), the first respondent, and Scottco
(Pty) Ltd, trading as Scottco African Safaris (Scottco),
the second
respondent, instituted action against the appellant, the Minister of
Safety and Security (the Minister), in the North
Gauteng High Court
for payment of damages arising from the alleged unlawful arrest and
detention of Scott. This included a claim
by Scottco for loss of
contractual income and profits. Prior to the commencement of the
trial, the high court (Du Plessis J), issued
an order in terms of
Uniform Rule 33(4) and by agreement between the parties, that the
issues of liability and quantum be separated.
In respect of the
merits, the high court found that the arrest and detention was
unlawful and accordingly held the Minister liable
for damages flowing
from such arrest and detention.
[2]
Subsequent to the determination of the merits, Vorster AJ was called
upon to determine the quantum of the respondents’
claim.
Vorster AJ awarded Scott damages in the amount of R75 000 for general
damages in respect of the unlawful arrest and detention
and R577 610
being wasted advertisement costs, the details of which will become
apparent in due course. The high court awarded
damages to Scottco in
the amount of R49 268 289 in respect of loss of income, which is
probably more accurately described
as the loss of contractual income
and profits referred to in paragraph 1 above. The Minister, with the
leave of this court, now
appeals against the award of loss of
contractual income and profits awarded to Scottco and the amount of
R75 000 awarded to
Scott.
[3]
A proper appreciation of the issues in this matter requires an
examination of the facts that gave rise to the respondents’
claim. Scott is a professional hunter and a registered undertaker of
big game hunting enterprises in South Africa. He is also the
chief
executive officer of Scottco, which is the owner of Mopane
Ranch, constituted by five contiguous farms, situated about
forty
kilometres outside Musina, Limpopo Province. Scottco conducts hunting
safaris for paying guests on Mopane Ranch.
[4]
The respondents have, since 1995, been targeting the overseas, and in
particular the American, market, in order to attract big
game hunters
to Mopane Ranch for hunting safaris. To this end, Scott attended
hunting exhibitions in America. In 2001, during one
such exhibition,
he met Mr Michael Francis Cassidy (Cassidy), a resident of Orlando,
Florida, in the United States of America and
the associate publisher
of Field & Stream magazine, which is dedicated to hunting and
fishing and has a readership of approximately
14 million people. The
February 2004 issue of the magazine carried an advertisement
promoting the hunting facilities of Scottco.
This was to have been
one of three advertisements to appear in the magazine. The cost of
the three adverts was $89 000 which,
in terms of the applicable
rates of exchange at the time, amounted to R577 610.
[5] At the time
Cassidy had been looking for a partner in South Africa to host
hunting trips for American game hunters. Cassidy
visited the
ranch in order to ascertain its viability for his purposes. He formed
a favourable opinion and subsequently, on behalf
of Field &
Stream magazine, entered into an agreement with Scottco, represented
by Scott, in terms of which:
‘…
Field
& Stream
will bring on an annual
basis for a period of five (5) years beginning January 2004 not less
than 50 of our top clients and/or
staff to Mopane Ranch for plains
game safaris, not to exceed 10 days in duration.
The agreed upon cost
per client/staff will not exceed $10 000.00 (USD) and this sum
shall include room and board, bar privileges
in the main camp, and
all plains game trophy fees. This sum does not include airfare,
trophy fees (excluding plains game), and
any taxidermist fees. Those
fees not covered in this agreement shall be covered either by the
client/staff member or
Field & Stream
and the financial
responsibility will be determined and agreed upon by all parties
prior to departing Mopane Ranch at the end of
each Safari.
This
above listed agreements can be terminated at any time by either party
for good cause or by mutual agreement.’
[6]
Pursuant to that agreement the first hunting trip was to take place
in June 2004. The American hunters were expected to arrive
at Mopane
Ranch during the evening of 10 June 2004. Scott had made arrangements
for the hunters to be transported by vehicle from
OR Tambo Airport in
Johannesburg to Mopane Ranch. He had also arranged with the driver to
keep in telephonic contact so that he
(Scott) could meet the hunters
at the Ranch upon their arrival.
[7]
What is set out in this paragraph is Scott’s version of the
events on the evening in question. Scott was with Mr Richard
Kok and
Mr Deon Scheepers, also professional hunters, on the day in question.
After they had completed preparations at the Ranch
in anticipation of
the arrival of the American hunters, they went to the Spur restaurant
in Musina for dinner. They arrived there
at approximately 21h00
hours. At about 23h00, the driver of the vehicle transporting the
American visitors telephoned Scott and
advised him that he was at
Makhado. Scott and his companions then left the restaurant, intending
to proceed to the farm. While
stationary in their motor vehicle at a
stop street, they noticed a group of people standing at the nearby
Horseshoe Pub and Grill
who they had earlier observed at the Spur.
Scott testified that he heard the group swearing and shouting at
them. He gained the
impression that the group was confusing him with
someone else and he decided to approach them. Scott drove his motor
vehicle into
the parking area of the Horseshoe Pub. Scheepers
alighted and soon thereafter members of the group started assaulting
Scheepers.
While Scott was alighting from the vehicle someone hit him
on the head with an object and he fell to the ground. Shortly
thereafter,
two police officers, Sergeant Abel Ramaphakela
(Ramaphakela) and Constable Azwinidine Ndonyane (Ndonyane), arrived
on the scene
and arrested him (Scott). He was transported to the
police station where he was advised he was being arrested for being
in possession
of a firearm while under the influence of alcohol. He
spent the night in a police cell and was released the following
morning when
the charges against him were withdrawn.
[8]
The other version of what had occurred at the Horseshoe Pub was
presented by Mr Jacques Verster, who testified on behalf of
the
Minister at the trial on the merits. Verster said that he and his
father had gone to the pub that evening to play billiards.
Just as
the bar was closing, Scott, Scheepers and Kok, accompanied by two
ladies, entered the pub and demanded alcohol. Scheepers
asked Verster
where they could purchase more alcohol. Scheepers became annoyed by
the response he received from Verster and uttered
words to the effect
that the latter needed to be taught a lesson. As Verster was leaving
the pub, he was attacked by Scott and
his friends. Verster assaulted
and overpowered both Scheepers and Scott. After Kok fired shots,
Verster approached and disarmed
him, and overpowered him as well. For
reasons that will follow, Verster’s version of events is to be
preferred.
[9]
It was common cause that Ramaphakela and Ndonyane arrived on the
scene shortly after the shots were fired. They were confronted
with
what appeared to be a drunken brawl. Verster presented his version of
events from which it was apparent that Scott and his
companions were
the aggressors. The police officers found Scott lying on the
ground with his weapon visible in its holster.
According to the
police officers, Scott was under the influence of alcohol, unsteady
on his feet and not in a position to speak.
Ramaphakela testified
that he had removed the firearm from Scott’s possession, while
Scott’s evidence was that he (Scott)
had handed over the
firearm upon being instructed to do so by Ramaphakela.
[10]
I turn to deal with the events that occurred simultaneously with or
subsequent to the incident at the Pub. The American group
had arrived
at Mopane Ranch at about midnight. The gate was locked and no one was
there to meet them. Cassidy made numerous attempts
to telephonically
contact Scott without success but eventually managed to gain access
to the Ranch. Scott only arrived at the Ranch
during the course of
the afternoon of the following day. By that time it was no longer
possible to undertake a planned elephant
hunting trip, as there was
‘a small window’ within which to conduct the hunt. Scott
testified that the elephant hunt
concession was only valid for 11
June 2004 and the group ought to have been in the hunting area in
Zimbabwe within six hours of
their arrival at the farm. Scott, in his
evidence, contradicted himself as to whether the elephant hunt did
occur. According
to Scott and Cassidy, the entire hunting trip
was a disaster for the American group.
[11] On 18 June
2004, Cassidy cancelled the contract with Scottco. The letter of
cancellation reads:
‘
The
purpose of this letter is to inform you that effective immediately we
are rescinding our agreement of November 3, 2003 and as
such we will
not be publishing any further ads for Scottco African Safaris which
includes the issues of July 2004 and October 2004.
Furthermore,
effective immediately, we are also rescinding our agreement of
bringing not less than 50 of our clients/staff to Mopane
Ranch in
South Africa for plains game safaris for a five year period which
began in January 2004.
In
light of the situation we do not feel that you are entitled to a
refund of any monies for the ads that did not run as the costs
incurred by
Field & Stream
due to the above mentioned incident are quite substantial and we
consider those costs to be offset by that balance. However, if
you
disagree with this decision I encourage you to contact our legal
department to discuss this matter in detail.’
[12] Cassidy’s
evidence was that the decision to terminate the relationship with the
respondents was based solely on the incident
that occurred in 2004
when Scott was arrested. He explained that his company would not let
him do business with a ‘suspected
criminal’. That, in
brief, is the background against which this matter is to be
determined.
[13]
At the commencement of the hearing before us we were faced with an
application by the Minister which the parties were agreed
can
properly be categorised as an application for reinstatement of the
appeal and condonation for the late filling of the appeal
record and
the Minister’s heads of argument. The appeal had lapsed for
failure on the part of the Minister to prosecute it
by not timeously
filing his heads of argument. The Minister’s heads of argument
should have been lodged with the Registrar
of this court on 23
September 2013. SCA Rule 10(2A)(
a
)
provides that if an ‘appellant fails to lodge heads of argument
within the prescribed period or within the extended period,
the
appeal shall lapse’. At the hearing of the appeal, the
respondents persisted in their opposition to the application.
[14] The Minister’s
attorney, in his affidavit in support of the application, set out the
circumstances that led to the lapsing
of the appeal. He stated that
he had timeously lodged the ‘quantum record’ on 12 August
2013. The record had to be
lodged on or before 5 October 2013.
Subsequent thereto, the Minister’s counsel was furnished with a
copy of the quantum record.
The affidavit proceeds as follows:
‘
Counsel
considered the record and thereafter, advised me that for the central
issue on appeal, the merits record was necessary and
crucial for the
prosecution of this appeal, and that I should instruct the
Transcribers to prepare a supplementary Record, consisting
of the
record on the merits. Counsel further advised that I should advise
the respondents’ attorneys of record that we are
of the view
that the merits record will be relevant for the SCA appeal. As
appears from the application for leave to appeal to
this court, the
core component of the Appellant’s argument is that the
liability of the Minister to the Second Respondent
(“Scottco”)
should not have been the subject of a hearing of quantum at all
because the issue of liability had been
disposed of in the Minister’s
favour in the hearing on the merits. The validity of this argument
cannot be assessed without
the merits record.’
[15]
The respondents refused to accede to the request to file the entire
record in relation to the merits on the basis that it was
not
relevant to the issues on appeal which they contended related only to
quantum. There were also numerous written exchanges between
the
Minister’s attorney and the transcribers regarding the
preparation of the record. It was initially envisaged that the
record
would be prepared by 4 October 2013. This did not occur. The merits
record only became available on 1 November 2013 and
the heads of
argument were filed on 15 November 2013, about seven weeks out of
time.
[16]
The principles relating to condonation are well established. The
factors that this court will have regard to when considering
such an
application include the adequacy of the explanation, the extent and
cause of the delay, any prejudice to the parties, the
importance of
the case, a respondent’s interest in the finality of the
judgment of the court below, the avoidance of unnecessary
delay in
the administration of justice and the applicant’s prospects of
success on the merits.
[1]
Condonation is an indulgence, not to be had merely for the asking. A
litigant who does not comply with the rules is required to
show ‘good
cause’ why the rules should be relaxed.
[2]
[17]
The initial failure on the part of the Minister’s attorneys to
appreciate that the record in relation to the merits was
necessary in
the determination of this appeal, resulted in that portion of the
record not being prepared timeously and this in
turn had as its
consequence the late filing of the heads of argument prepared on
behalf of the Minister. It was alleged that the
heads of argument
could not be prepared without regard to the record in relation to the
merits. It is clear that as soon as it
was discovered that the merits
record was necessary for the appeal steps were taken by the
Minister’s legal representatives
to obtain the record. In the
circumstances, the complete record and the heads of argument were
filed as expeditiously as possible.
At worst for the Minister, there
was a seven week delay in complying with the rules of this court.
There is no doubt that this
matter is of considerable importance to
the Minister as it raises an important legal issue and involves a
substantial sum of money.
[18]
The resistance of the respondents to the record in relation to the
merits being filed was unwarranted. Where issues of liability
and
quantum have been separated, such record is often useful in respect
of the determination of quantum. In this matter, that record
was
certainly necessary for a proper appreciation of all the
circumstances that led to the assault and arrest of Scott. As will
become apparent, the reasoning of Du Plessis J and especially his
credibility findings on the evidence, are relevant to enable
a proper
appreciation of the circumstances against which the respondents’
claims are being brought.
[19]
The prospects of success of the appeal can readily be said to be
reasonable.
[3]
For these reasons
this court has decided to grant the application for reinstatement of
the appeal and condonation for the late
filing of the appeal record
and the heads of argument, together with an appropriate costs order
against the respondents.
[20]
At the hearing of this appeal there was considerable debate as to
whether the liability of the Minister to Scottco for loss
suffered by
the latter was properly an issue before Vorster AJ. Put simply, the
question was whether Du Plessis J had in fact and
in law determined
that the Minister was liable for Scottco’s loss of contractual
income and profits. The Minister contended
that that issue had been
decided in his favour by Du Plessis J. The submission on behalf of
the Minister was that Du Plessis J
had decided that the Minister was
only liable to Scott personally and not for any loss suffered by
Scottco.
[21] At the
conclusion of the trial on the merits, Du Plessis J issued an order
in the following terms:
‘
1
Dit word verklaar dat die eerste eiser onregmatig gearresteer en
aangehou is;
2 Die eiser se eis
gegrond op die beweerde aanranding van die eerste eiser word van die
hand gewys;
3
Die veweerder word gelas om die koste van die verhoor te betaal.’
[22]
On appeal to the full court of the North Gauteng High Court (Makgoba
J with Rabie and Mngqibisa-Thusi JJ concurring), the order
of Du
Plessis J was upheld. The primary basis upon which the order was
upheld however, was that the appeal had been perempted.
For the sake
of completeness, however, the full court dealt with the merits of the
appeal. The sole question considered by the
full court was the
lawfulness or otherwise of Scott’s arrest and detention.
[23]
It is clear from the record that the question of the Minister’s
liability to Scottco for loss of contractual income and
profits, with
all its legal nuances, was not considered by the high court (Du
Plessis J and Vorster AJ) or the full court. No thought
was given and
no reasons appear in relation to whether a claim for pure economic
loss could in the circumstances of the case be
sustained. All that Du
Plessis J determined was that the arrest and detention was unlawful
and that too, as will become evident
later, on the narrowest
technical basis. The parties were agreed that this court was in as
good a position as the high court to
determine the issue of the
Minister’s liability to Scottco. In light of the attitude of
the parties and in the interests
of justice, this court proceeds to
determine that issue. I now turn to deal with it.
[24]
Scottco’s claim is formulated as follows:
‘
14.1
The second plaintiff operates Scottco African Safaris which derives
its income from the American hunting market.
14.2 At the time of
the first plaintiff’s aforesaid arrest, detention and
incarceration, the second plaintiff had hunters
from America who were
supposed to undertake an elephant hunt in Zimbabwe, which could not
take place due to the first plaintiff’s
aforesaid unlawful
arrest, detention and incarceration.
14.3 The first
plaintiff’s aforesaid unlawful arrest and detention occurred
during the visit of the President and Founder
of Field and Stream
Magazine.
14.4 As a result of
the first plaintiff’s aforesaid unlawful arrest, detention and
incarceration, and the consequent failure
of the said elephant hunt
in Zimbabwe, the second plaintiff’s good name and reputation in
the industry has been lost and
the President and Founder of the Field
and Stream Magazine, who is second plaintiff’s main advertiser
in America for hunting,
no longer wishes to publish and promote
second plaintiff’s operations, due to the first plaintiff’s
aforesaid arrest
and detention.
14.5 As a result of
the first plaintiff’s aforesaid arrest, detention and
incarceration as well as the second plaintiff’s
resultant
inability to have the American clients timeously at the elephant hunt
concession in Zimbabwe, the second plaintiff has
received adverse
publicity and has and will further in future suffer a loss of
income.’
[25]
The parties were in agreement that the claim for loss of income and
profits was a claim for pure economic loss.
[4]
Thus, the respondents accepted that such a claim could only be
brought by way of an Aquilian action. Counsel for the respondents
was
constrained to concede that in that respect the particulars of claim
were technically lacking. This concession was rightly
made.
[5]
The respondents’ particulars of claim purport to lay the basis
for Scottco’s claim against the Minister by stating
that, as a
result of the Minister’s conduct (in the form of arresting and
detaining Scott), Scottco’s ‘good name
and reputation in
the industry has been lost’ and that it ‘has received
adverse publicity and has and will further
in future suffer a loss of
income’. Scottco did not persist with its claim for general
damages for its loss of reputation
and good name in the hunting
industry.
[26]
It was contended on behalf of the Minister, relying on
Media
24 Ltd & others v SA Taxi Securitisation (Pty) Ltd (Avusa Media
Ltd & others as
amici
curiae), that Scottco’s pleadings were fatally defective in
that it has failed to allege wrongfulness and plead the
facts in
support of that allegation.
[6]
The absence of such allegation may render the particulars of claim
excipiable on the basis that no cause of action has been
disclosed.
[7]
The Minister did
not file an exception. I adopt the reasoning of Brand JA in
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
that
it would be futile, at this stage, to investigate whether the
pleadings are excipiable.
[8]
Had
an exception been filed, the respondents would have been entitled, if
so advised, to apply for leave to amend their particulars
of claim to
make the necessary allegations.
[9]
The appropriate enquiry would be whether, despite the deficiency in
the pleadings, and having regard to the evidence, the Minister
ought
to be held liable for the loss suffered by Scottco.
[10]
[27]
Scottco faces a number of insuperable difficulties in respect of the
merits of its claim for pure economic loss. I propose
to deal with
each of these in turn.
[28]
Neethling
et
al
[11]
in
Law
of Delict
discuss claims based on an interference with a contractual
relationship. They describe what this expression means:
‘
Interference
with a contractual relationship is present where a third party’s
conduct is such that a contracting party does
not obtain the
performance to which he is entitled
ex
contractu,
or where a contracting
party’s contractual obligations are increased.’
After
discussing instances where a delictual action was granted to a
prejudiced contracting party, the learned authors state the
following:
‘
This
exposition is, however, subject to the general rule in South African
law that only the
intentional
interference with the contractual relationship of another in
principle constitutes an independent delictual cause of action.’
[12]
[29]
With reference to the decision of this court in
Union
Government v Ocean Accident and Guarantee Corporation Ltd
,
[13]
Neethling
et
al
point out that courts have, as a rule, refused to extend delictual
liability for negligent interference with a contractual relationship
beyond historically justified instances. These instances are noted as
follows:
(a)
the delictual action of the master for injury to his domestic
servant;
[14]
and
(b)
a person who is in possession of property in terms of a contract with
the owner may, to the extent that he has a direct interest
in the
economic value of such a thing, institute the
actio
legis Aquiliae
against a third party who damages it.
[15]
[30]
In
Union
Government
,
[16]
Schreiner JA said the following:
‘
[T]he
law takes a conservative view on the subject of expansion of the
Aquilian remedy beyond what the authorities have recognised
in the
past.’
This
statement reflects the continuing concern of courts to guard against
the spectre of indeterminate liability.
[31] In the present
case, the police had no knowledge of the contract or its terms –
an aspect to which I will return in due
course. There can thus be no
talk of an intentional interference in the contractual relationship.
In addition, the kind of liability
now sought to be imposed does not
fall within historically recognised instances. For these reasons
alone Scottco’s claim
should fail. However, Neethling
et al
at 308-309 suggest that the above stated approach is too
restrictive and proposed the following:
‘
In
our opinion, however, any negligent conduct by a third party which
causes the infringement of a contractual personal right or
the
increase of a contractual obligation ought, in principle, to found
the Aquilian action. The fear of unlimited liability may
be allayed
by the correct application of all the elements of a delict.’
[32]
I turn now to deal with the relevant constituent elements of a
delict. Even assuming that Scottco was able to get past negligence,
which is doubtful,
[17]
it
faces problems in relation to wrongfulness and causation, both of
which serve as a brake on indeterminate liability. Neethling
et
al
rightly state that the courts have held that the wrongfulness of an
act causing pure economic loss almost always lies in the breach
of a
legal duty.
[18]
The authors
note that there is no general duty to prevent pure economic loss. As
to whether, in a particular case, there was a
legal duty to avoid
pure economic loss, the yardstick is the general criterion of
reasonableness or
boni
mores
.
[19]
This involves the exercise of a value judgment which embraces
relevant facts and considerations of policy. In essence, this amounts
to judicial control over the scope of delictual liability.
[33]
It is necessary to examine the relevant facts. Scott was arrested for
being in possession of a firearm while under the influence
of
alcohol. Section 39(1)(
m
)
of the now repealed Arms and Ammunition Act 75 of 1969 (which was
still in operation as at 11 June 2004) made it an offence for
a
person to
handle
a firearm whilst under the influence of alcohol.
[20]
There was no evidence that Scott had handled the firearm. By having
the firearm on his person while under the influence of alcohol,
and
without more, Scott did not commit an offence. It was this
‘technicality’ that formed the basis of the finding
that
Scott’s arrest and detention was wrongful.
[34] Du Plessis J
rejected Scott’s version of the circumstances leading to the
altercation with Verster and found that his
version was improbable.
The high court found that the probabilities favoured Verster’s
account of the incident. Du Plessis
J reasoned as follows:
‘
Die
meer waarskynlike oorsaak van die bakleiery is die Versters se
weergawe dat die drie mans in die Horseshoe moeilikheid begin
maak
het. Scheepers se eie verklaring aan die polisie pas in elk geval
beter in by die Versters se weergawe as by sy en Scott s`n.
Daarby
moet gevoeg word dat Scott ontken het dat daar enige dames in hulle
geselskap was. Nogtans het mnr Geach, vir die eisers,
aan die
verweerder se getuies `n verklaring van ene Monica Woest gestel
waaruit dit onomwonde blyk dat sy in die geselskap van
Scott en sy
maats was – soos wat Jaques Verster getuig het. Na my oordeel
verskaf Jaques Vester en sy vader se weergawe `n
sinvolle en
waarskynlike oorsaak vir wat as `n tipiese kroeggeveg beskryf kan
word.’
In
my view, the high court’s reasoning is unassailable.
[35] Du Plessis J
also made certain credibility findings against Scott and his
companions, with which I agree. In particular, the
high court found
that Scott and Scheepers had presented a contrived version (bekookte
weergawe) in order to advance the respondents’
case. The judge
put the matter thus:
‘
Daar
is nog voorbeelde, maar na my oordeel is dit duidelik dat Scott en
Scheepers met `n bekookte weergawe die eisers se saak probeer
bevorder het en die gebeure probeer aandik het. Ek vind die weergawe
namens die verweerder deurgaans meer waarskynlik. Spesifiek
wat die
twee polisiemanne betref, was dit my indruk dat hulle die gebeure so
akkuraat moontlik probeer weergee het.’
[36]
The evidence has demonstrated that the police officers resorted to
the technically wrong basis for Scott’s arrest. The
police
officers could lawfully have arrested Scott for assault with intent
to do grievous bodily harm based on the report they
had received from
Verster. In my judgment, weighing up the nature of the error made by
the police officers against the conduct
of Scott and his companions,
and particularly that the latter were the aggressors in respect of
the assault incident, the error
of the police officers pales into
insignificance, and it would not be fair to impose liability upon the
Minister in respect of
Scottco.
[21]
Such imposition of liability on the Minister is likely to create an
unascertainable class of potential claimants – one can
imagine
the absurdities that would arise if all persons or entities
contractually linked to a person wrongfully arrested could
sue the
Minister for contractual loss suffered by them. Policy considerations
militate strongly against the imposition of delictual
liability on
the Minister to Scottco.
[37]
Over and above what is stated in the preceding paragraphs, legal
causation is another obstacle on the part of Scottco. I am
prepared
to assume for purposes of this judgment, in favour of the
respondents, that factual causation has been established and
that it
was Scott’s arrest and detention that resulted in the failure
of the elephant hunt and ultimately led Field &
Stream to cancel
the contract. That being so, the enquiry turns to legal causation
(remoteness of damage). This is an enquiry into
whether the wrongful
act is linked sufficiently closely to the loss concerned for legal
liability to ensue.
[22]
Generally, a wrongdoer is not liable for harm which is ‘too
remote’ from the conduct concerned,
[23]
or harm which was not foreseeable.
[24]
Thus the purpose of legal causation is to ensure that any liability
on the part of the wrongdoer does not extend indeterminately
without
limitation. In this way, remoteness operates as a further limitation
on liability, and thus the enquiry necessarily overlaps
with that
into wrongfulness.
[25]
However, this court in
Fourway
Haulage
cautioned that wrongfulness and remoteness are not the same and
involve two different enquiries.
[26]
[38]
This court has expressed a preference for the ‘flexible
approach’ in determining legal causation. The traditional
tests
for legal causation (‘reasonable foreseeability’, ‘direct
consequences’ and ‘adequate causation’)
may
nevertheless still be relevant as subsidiary determinants.
[27]
Brand JA in
Fourway
Haulage
cautioned:
‘
[T]he
existing criteria of foreseeability, directness, et cetera, should
not be applied dogmatically, but in a flexible manner so
as to avoid
a result which is so unfair or unjust that it is regarded as
untenable. If the foreseeability test, for example, leads
to a result
which will be acceptable to most right-minded people, that is the end
of the matter.’
[28]
[39]
In my view, the damages claimed by Scottco are too remote to be
recoverable. It is not possible, on the evidence, to find that
the
police officers knew of the contract between Scottco and Field &
Stream Magazine. There was no evidence that the police
officers knew,
let alone foresaw, that Scott’s detention would have any impact
on the planned elephant hunt, lead to the
cancellation of the
contract between the respondents and Field & Stream Magazine and
cause financial loss to Scottco. The cross-examination
of the police
officers did not traverse the existence of Scottco or the arresting
officers’ knowledge, if any, of Scott’s
relationship to
Scottco. During the cross- examination of Ramapakhela in the quantum
trial, counsel for the respondents expressly
put it to him that Scott
had informed Ramaphakela ‘that you [Ramapakhela] are making a
big mistake and he [Scott] has visitors
from America coming’.
It is noteworthy that Ndonyane was not
cross-examined on this aspect at all.
Scott’s
evidence in this regard was vague and surprisingly lacking in detail:
‘
Het
u enigsins die Suid Afrikaanse Polisie Diens daarop attent gemaak dat
u `n afspraak gehad het die aand? ---
Ja,
as ek reg kan onthou het ek
.
Wat
was hulle houding daaromtrent? --- Nee, die offisier wat my arresteer
het was adamant dat hy my toe sluit.’ (Emphasis
added.)
[40]
The imposition of liability on the Minister will have ‘unmanageable’
consequences as it will open the door for
indeterminate or limitless
liability. It would indeed be ‘untenable to right-minded
people’ to hold the Minister liable
to Scottco in the
circumstances of this matter. Put simply, to have damages imposed on
the police for loss of contractual income
and profits in relation to
a contract they were unaware of and in circumstances where the arrest
of Scott was effected on the basis
of having been the aggressor in a
drunken brawl, and where the justification for the arrest can rightly
be said to have been merely
technically erroneous, is to cast the net
too wide and to land the police with liability for loss that is too
remote. It follows,
for all these reasons that Scottco’s claim
against the Minister must fail.
[41]
I turn now to consider the propriety of the damages awarded to Scott
by the high court (Vorster AJ) in respect of the advertisements
placed with Field and Stream magazine. This was a claim pleaded by
Scottco as ‘fruitless and wasted expenditure in respect
of
advertising costs in Field and Stream magazine’
in
the amount of R612 765. There was no basis to compensate
Scott for the money spent on the advertisement as this claim
did not
form part of his pleaded cause of action. At the hearing of this
appeal counsel for the respondents conceded, and correctly
so, that
this was not a claim to which Scott was entitled.
[42]
It is trite that the assessment of general damages is a matter within
the discretion of the trial court and depends upon the
unique
circumstances of each particular case.
[29]
An appeal court is generally slow to interfere with the award of the
trial court but will do so where there has been an irregularity
or
misdirection.
[30]
Where the
appeal court is of the opinion that no sound basis exists for the
award made by the trial court or where there is a striking
disparity
between the award made by the trial court and the award which the
appeal court considers ought to have been made.
[31]
[43]
The court awarded Scott damages in the amount R75 000. The high
court (Vorster AJ) identified the following factors as
being relevant
in its determination of the quantum: (1) Scott was unlawfully
arrested and detained. (2) He suffered trauma and
severe anxiety as
result of the arrest and detention because he realised that the
agreement with Field & Stream was in jeopardy
and might be
cancelled. (3) He was not given any medication although he reported
his injury and asked for medical assistance. (4)
He spent the night
in cell without sleeping as he feared interference from other
inmates.
[44]
There are a number of extremely relevant factors to which the high
court did not make reference. I do not lose sight of the
fact that
because a fact was not mentioned in the judgment it does not mean
that it was not considered.
[32]
What is striking about the reasoning of Vorster AJ is the complete
absence of reference to the adverse credibility findings
made against
Scott by Du Plessis J (referred to in paragraph 35 above) and the
finding that Scott and his companions were the aggressors
in respect
of the assault incident. It is also surprising that the high court
made no mention of the relatively short duration
of the detention,
that the arrest was rendered wrongful on the basis of a
‘technicality’ and that the circumstances
surrounding the
arrest favoured the arresting officers. The further difficulty with
which this court is confronted is that there
was a dispute between
the parties regarding the conditions of the cell in which Scott was
detained and whether Scott’s injuries
were sufficiently serious
to require immediate medical attention. It is not apparent from the
judgment, which version the high
court preferred and took into
account in the determination of the quantum.
[45]
A comparative study with other cases reveals that the award made by
the high court is grossly excessive. In
Minister
of Safety and Security v Seymour
supra
,
the respondent, a 63 year old man, had been unlawfully arrested and
imprisoned by the state for five days. The high court had
awarded him
general damages in the amount of R500 000. On appeal, this court
held that an appropriate award was the sum of
R90 000. This
court had regard to the fact that: throughout his detention he had
free access to his family and medical adviser;
he suffered no
degradation beyond that which is inherent in being arrested and
detained; after the first period of about 24 hours
the remainder of
the detention was in a hospital bed; and although the experience was
traumatic and caused him great distress,
there were no consequences
that were of sufficient concern to warrant further medical attention
after his release.
[46] In
Rudolph v
Minister of Safety and Security
supra
, this court granted
the first and second appellants R100 000 each for an unlawful
arrest without a warrant and the consequent
unlawful detention which
lasted three nights. The court noted the conditions of their
detention:
‘
The
appellants were arrested and detained under extremely unhygienic
conditions in the Pretoria Moot police station. The cell in
which
they were held was not cleaned for the duration of their detention.
The blankets they were given were dirty and insect-ridden
and their
cell was infested with cockroaches. The shower was broken and they
were unable to wash. They had no access to drinking
water. Throughout
their detention the first appellant, who suffers from diabetes, was
without his medication. They were not allowed
to receive any
visitors, not even family members.’
[33]
The first appellant
was later, again unlawfully, re-arrested on a charge of sedition,
again without a warrant, and detained for
two nights (‘from
about 18h00 on Saturday 26 July 2003 to about 08h00 on Monday 28 July
2003’). It was noted that during
his detention:
‘
He
was made to sleep on a small, coarse mattress in a freezing cell and
was not even provided with a blanket on the first night.
It was only
on the Sunday that his wife was allowed to visit him and bring him
his medication and a sleeping bag.’
[34]
The
court awarded him R50 000 in damages.
[47]
In
Minister
of Safety and Security v Tyulu
,
[35]
the respondent, a magistrate, was wrongfully arrested for being drunk
in public. While the detention following on from that arrest
was for
a relatively short period (less than a few hours), the court awarded
the respondent R15 000 in damages. In doing so,
the following
considerations were deemed relevant: the age of the respondent, the
circumstances of his arrest, its nature and short
duration, his
social and professional standing, and the fact that he was arrested
for an improper motive.
[48]
In
Mvu
v Minister of Safety and Security & another
,
[36]
Willis J awarded the plaintiff R30 000 for a wrongful detention
following on from a lawful arrest for malicious damage to
property.
The plaintiff had been incarcerated in the police cells with
‘suspected rapists and robbers’ from 10pm until
the next
morning.
[49]
The plaintiff in
Seria
v Minister of Safety and Security & others
[37]
was an architect, in his fifties, who had been wrongfully arrested in
the presence of guests he was entertaining at his home. He
spent
three and a half hours in full view of the public at the local police
station and was detained overnight in the police cells,
most of the
time with a drug addict. The court found that a proper award was
R50 000.
[50]
In my view, bearing all the circumstances in mind and taking into
consideration the decreasing value of money over the years
since the
decisions referred to and which were used as comparatives, an
appropriate award is the sum of R30 000. This is so
startlingly
disparate from the award made by the high court that it justifies
interference by this court.
Order
[51]
1 The late filing of the appellant’s supplementary record and
heads of argument is condoned.
2 The appeal is
reinstated.
3 The respondents
are directed to pay the costs of opposition in the reinstatement
application.
4 The appeal is
upheld with costs including the costs of two counsel.
5 The order of the
high court is set aside and replaced with the following:
‘
(i)
The defendant is directed to pay the first plaintiff the amount of
R30 000 being damages for unlawful arrest and detention,
which
amount shall bear interest at the rate of 15,5 per cent per annum
from 8 February 2013 until the date of payment and in relation
thereto, the defendant is directed to pay the first plaintiff’s
costs.
(ii) The second
plaintiff’s claim for special damages is dismissed and in
relation thereto the second plaintiff is to pay
the defendant’s
costs.’
______________
L
V THERON
JUDGE
OF APPEAL
APPEARANCES
For
Appellant: G J Marcus SC with K M Mokotedi
Instructed by:
State Attorney,
Pretoria
State
Attorney, Bloemfontein
For
Respondents: G B Botha SC with De Weet Keet
Instructed
by:
G P Venter
Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
[1]
United
Plant Hire (Pty) Ltd v Hills & others
1976
(1) SA 717
(A) at 720E-H.
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Limited
[2013] 2 All SA 251
(SCA) paras 11-13.
[2]
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA) para 6. See also
United
Plant Hire (Pty) Ltd v Hills & others supra.
[3]
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
[2014]
ZASCA 17
(26 March 2014) para 11.
[4]
Pure
economic loss in this context relates to financial loss that does
not arise directly from damage to the plaintiff’s
person or
property but as a result of the negligent act itself, such as a loss
of profit, being put to extra expenses, or the
diminution in the
value of property. See
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
;
[2006] 1 All SA 6
(SCA) para 1. See also J
Neethling, JM Potgieter & JC Knobel
Visser
Law of Delict
(6
ed, 2010) at 290.
[5]
Media
24 Ltd & others v SA Taxi Securitisation (Pty) Ltd (Avusa Media
Ltd & others as
amici curiae
)
,
2011 (5) SA 329
(SCA) para 8.
[6]
Ibid
para 11.
[7]
Fourway
Haulage
SA
(Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) para 14.
[8]
Ibid
.
[9]
Cotas
v Williams & another
1947
(2) SA 1154
(T) at 1159-1160.
[10]
Fourway
Haulage
para 15.
[11]
Supra
at 306.
[12]
Neethling
et
al
307.
[13]
Union
Government v Ocean Accident and Guarantee Corporation Ltd
1956
(1) SA 577 (A).
[14]
One
of the historically justified instances recognised in
Union
Government
was the rule of Roman Dutch law that an employer could claim damages
from a third party who had wrongfully injured his domestic
servant.
In
Pike
v Minister of Defence
1996 (3) SA 127
(Ck) at 130B–132D it was held that this rule
has been abrogated by disuse and was therefore no longer part of our
law.
Neethling
et
al
at 253.
[15]
Neethling
et
al
at 307.
[16]
Union
Government
at
587A.
[17]
In
Kruger
v Coetzee
1966 (2) SA 428
(A) the test for negligence is set out in clear
terms. Liability for
culpa
arises if (a) a
diligens
paterfamilias
in the position of the defendant would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and would take reasonable
steps to guard against such occurrence; and (b) the defendant
failed
to take such steps. One can simply ask how, in the circumstances of
the present case, the consequences which forms the
basis of
Scottco’s claim could have been foreseen and guarded against.
All the more so when one has regard to the lack
of knowledge on the
part of the police of the existence of the contract and its
financial implications. See also Neethling
et
al
at131-132. For a useful discussion on foreseeability in relation to
consequence see Neethling
et
al
at 141-148.
[18]
See
at 291 and the authorities there cited.
[19]
Rail
Commuters Action Group Group v Transet Ltd t/a Metrorail
2005 (2) SA 359 (CC).
[20]
Section
120(3)(
c
)
of the
Firearms Control Act 60 of 2000
makes it an offence to ‘have
control of a loaded firearm, . . . in circumstances where it creates
a risk to the safety
or property of any person and not to take
reasonable precautions to avoid the danger’.
[21]
Country
Cloud
Trading
CC v
MEC,
Department of Infrastructure Development
[2014]
1 ALL SA 267
(SCA) para 25.
[22]
mCubed
International
(Pty) Ltd & another v Singer NNO & others
2009
(4) SA 471
;
[2009] 2 All SA 536
(SCA) para 22.
[23]
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994
(4) SA 747
(A);
Fourway
Haulage
para 30; Neethling
et
al
at 188.
[24]
Country
Cloud
para 27;
Fourway
Haulage
paras 28, 34 and 35.
[25]
Fourway
Haulage supra
paras
30-32.
[26]
Ibid
para 32.
[27]
See
generally Neethling
et
al
at 187-206.
[28]
Fourway
Haulage
para 34.
[29]
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 17;
Rudolph
& others v Minister of Safety and Security
&
another
2009 (5) SA 94
(SCA) paras 26-27.
[30]
The
misdirection might in some cases be apparent from the reasoning of
the court, but in other cases it might be inferred from
a grossly
excessive award.
Minister
of Safety and Security v Kruger
2011 (1) SACR 529
(SCA) para 27.
[31]
Sekgota
v South African Railways & Harbours; Ramotseo v South African
Railways & Harbours
1974 (3) SA 309
(A) at 314D-E;
Road
Accident Fund v Delport NO
2006 (3) SA 172
(SCA) para 22.
[32]
Rex
v Dhlumayo & another
1948 (2) SA 677
(A) at 702.
[33]
Rudolph
supra
para 27.
[34]
Ibid
para 28.
[35]
Minister
of Safety and Security v Tyulu
2009 (5) SA 85 (SCA).
[36]
Mvu
v Minister of Safety and Security & another
2009 (6) SA 82 (GSJ).
[37]
Seria
v Minister of Safety and Security & others
2005 (5) SA 130
(C).