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2023
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[2023] ZAFSHC 361
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Hlalele v Minister of Police (3648/2020) [2023] ZAFSHC 361 (6 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3648/2020
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TEBOHO
COLLEN HLALELE
PLAINTIFF
and
THE
MINISTER OF POLICE
DEFENDANT
HEARD
ON:
05 SEPTEMBER 2023
DELIVERED
ON:
06 SEPTEMBER 2023
[1]
The Plaintiff instituted action against
the defendant for damages due
to injuries sustained following a wrongful assault on the Plaintiff
by the members of the Defendant
on 1 January 2020. Merits in this
matter had already been settled and argument was only in relation to
quantum.
[2]
Various expert reports were provided.
Before argument, the parties
provided and argued from a joint minute, which they provided shortly
before arguments commenced. I
was informed that the parties have
agreed concerning future medical expenses. Although Industrial
Psychology experts agreed on
future loss of income, there were
divergent views regarding pre morbid and post morbid income due to
various factors considered
by the experts. The parties could
therefore not agree on the amount to be awarded in this regard. This
aspects were thus argued
and a determination of a fair and reasonable
award left for the court to decide and so was the issue concerning
the award for general
damages.
brief
background of facts
[3]
From the joint minute the following
set of background facts is
provided to set a back drop of my considerations. The plaintiff was
attending a New Year’s Eve
party when he was assaulted by
members of the SAPS in the Bohlokong, Bethlehem area. He was shot
through the stomach, the bullet
exited through his back. Following
the incident, he was hospitalised at Phekolong Hospital in Bethlehem.
On arrival there he was
immediately transferred to Dihlabeng.
Regional Hospital (DRH) due to the sever nature of his injuries. Upon
arrival at DRH a laparotomy
was performed by a certain Dr. Sadie on
the morning of 1 January 2020. Around 7
th
January on ward
the plaintiff developed signs of sepsis, on 12 January 2020 the bowel
content was extruding through the bullet
wound on the back, which led
to a further laparotomy, which was performed by Dr. Vermaak.
[4]
He was discharged from hospital on
the 5
th
June 2020. At
the post discharge follow-up visit, no clinical problems were
recorded. According to Dr Vermaak, who is a specialist
surgeon
remarked that because of extensive previous surgery, long term the
patient had got a high risk of future abdominal obstructions
caused
by Intestinal adhesions that can occur at any time after surgery and
therefore this is a life long problem that can be encountered
at any
time by the Plaintiff. He went on to show that this is a life
long burden that the Plaintiff can experience and that
he most likely
will need a re-laparotomy and surgery. The future medical expenses in
the amount of R423 552. 15 has been agreed
upon by the parties.
Future
Loss of income
[5]
The plaintiff was 18 years old and
doing grade 10 in school. He could
not finish the grade 10 due to the injuries. The parties have agreed
that there is no past loss
of earnings. Joint minutes of the
occupational therapists, Industrial Psychologists and actuarial
calculations have been provided
to the Court. The Industrial
Psychologists employed by the parties differ to a certain extent on
their postulations when determining
Plaintiff’s future career
path.
[6]
For the Plaintiff a brief summary of
the suggestions by the
Industrial Psychologist is that:
1.
Complete schooling in December 2020 (age 19) with Grade 8
qualification. Thereafter, unemployed
for 4 years, thereafter,
R26,000 per year (based on the Lower Quantile unskilled – 2023
terms) increasing at a linear rate
over the next 7 years until
R47,000.00 per year (MED unskilled 2023 terms) thereafter, increasing
with inflation only until retirement,
assumed to be age 65.
[7]
For the Defendant the appointed Industrial Psychologist suggested:
Complete recommended
treatment by January 2025; thereafter, unemployed for 4 years,
thereafter, R26,00.00 per year (LQ unskilled
– 2023 terms)
increasing at a linear rate over the next 7 years until R47,000 per
year (MED unskilled – 2023 terms)
Thereafter, increasing with
inflation only until retirement, assumed be at age 65.
[8]
Two scenarios were presented by the actuarial calculations
Scenario
1:
Scenario 1:
SVJ
Past
Income
(R)
Future
Income
(R)
Total
Income
(R)
Pre - morbid income
Post- morbid income
42
498
1 569
740
1 612
238
Loss of Income
42
498
1 569
740
1 612
238
[9]
In terms of scenario 1, SVJ is of the opinion that the Plaintiff must
be compensated for his future
loss of income based on what he could
have earned, as an unskilled worker in the non-corporate sector. On
behalf of the Plaintiff
it is suggested that the reasonable approach
would be to use the median of the two postulations when considering
future loss of
income (pre- morbid), and then use scenario 2 in
determining the post morbid future loss of income (lower quartile as
suggested)
Scenario 2:
Scenario 2:
LB
Past
Income
Future
Income
(R)
Total
Income
(R)
Pre - morbid income
Post- morbid income
1
047 933
880
494
1
047 933
880
494
Loss of Income
R167
439
R167
439
[10]
The opinion of LB is that the Plaintiff should be compensated for
future loss of earnings, based on the difference
between postulated
pre and post incident earning capacity. It is submitted on behalf of
the defendant that scenario 2 should be
used when determining the
basis upon which the court should consider when determining the
future loss of earnings.
[11]
The result of the plaintiff argument after applying contingencies is
R587 189.65. The result of defendant’s
argument after
applying contingencies is R382 380.41 I agree that the approach
suggested by the Plaintiff is would result in a
fair and reasonable
award in the circumstances.
General
damages
[12]
The Plaintiff has permanent scaring on his back and abdomen from the
multiple surgeries. He will suffer long
`term impairment, severe
emotional and psychological trauma. Specifically, he is experiencing
behavoral changes. Sleeping problems
due to pain and discomfort.
Bowel control problems. He experiences constant back ache. He cannot
stand for extended periods;
cannot run or jump; cannot sit for
extended periods, cannot lift and carry heavy objects, has a weakened
arm, experiences difficulties
when climbing stairs, he suffers from
flash backs and nightmares from the incident, he feels depressed and
frustrated as he can
no longer perform the same activities as prior
to the accident. the comparable cases presented on behalf of
the Plaintiff
[1]
, Plaintiff has
suggested an award of R800 000.00 as constituting a fair and
reasonable amount. The defendant also relying
on previous cases for
comparison submitted that the amount of R300 000.00 constitutes
a fair and reasonable compensation for
general damages. Having looked
at the comparable cases where the Plaintiff had to undergo
Laparotomy
[2]
.
After considering the
evidence and after having heard and considered argument presented by
the counsel for the parties,
an order is granted in the following
terms
:
1.
The defendant is to pay the plaintiff an amount of
R1, 819 741.80
in respect of plaintiff’s claim for damages;
2.
The amount in 1 above is determined as follows:
2.1 Future
medical expenses in the amount of
R423 552.15
;
2.2 General
damages in the amount of
R800 000.00
;
2.3 Future
loss of income in the amount of
R587 189.65
.
3.
Defendant is to pay the taxed or agreed costs of suit of the
plaintiff’s instructing and correspondent
attorneys, which
costs are to include, but not be limited to:
3.1 The costs
and qualifying fees of plaintiff’s appointed experts:
Dr Vermaak (Specialist
Surgeon);
Dr van Jaarsveld
(Psychiatrist);
R van Bosch (Occupational
therapist);
S van Jaarsveld
(Industrial psychologist);
M Barnard (Actuary).
4.
Defendant is ordered to pay the interest on the amount in 1 above at
the applicable rate of interest
a
tempore morae
, calculated
from date of service of summons (13 October 2020) to date of final
payment;
M S THAMAE, AJ.
On
behalf of Plaintiff:
Advocate
JC Van Eeden
Instructed
by:
JACOBS
FOURIE ATTORNEYS
BLOEMFONTEIN
On
behalf of Defendant
:
Advocate
D. DE KOCK
Instructed
by:
OFFICE
OF THE STATE ATTORNEY, FREE STATE
BLOEMFONTEIN
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION: BLOEMFONTEIN
Case
number: 3648/2020
5
& 6 September 2023 before the
Honourable
Thamae AJ
In
the action between:
TEBOHO
COLLEN HLALELE
PLAINTIFF
AND
THE
MINISTER OF POLICE
DEFENDANT
DRAFT
ORDER
AFTER
having considered the evidence and after having considered argument
presented on behalf of the counsel for the parties, an
order is
granted In the following terms:
1.
The defendant is to pay the plaintiff an amount of
R1, 819 741.80
in respect of plaintiff's claim for damages;
2.
The amount in 1 above is determined as follows.
2.1
Future medical expenses in the amount of R423 552.15;
2.2
General damages in the amount of R 800 000.00
2.3
Future loss of income in the amount of R 587 189.65
3.
Defendant is to pay the taxed or agreed costs of suit of the
plaintiff's instructing and correspondent
attorneys, which costs are
to include, but not be limited to:
3.1
The costs and qualifying fees of plaintiff's appointed experts:
Dr Vermaak (Specialist
Surgeon);
Dr van Jaarsveld
(Psychiatrist);
R van Bosch (Occupational
therapist);
S van Jaarsveld
(Industrial psychologist);
M Barnard (Actuary).
4.
Defendant is ordered to pay the interest on the amount in 1 above at
the applicable rate of interest
a
tempore morae,
calculated
from date of service of summons (13 October 2020) to date of final
payment;
BY
ORDER OF COURT
[1]
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199; Hulley v Cox
1923
AD 234
at 246; Sigournay v Gillbanks
1960 (2) SA 552
(A) at 556 A-C;
Capital Assurance Co Ltd v Richter
1963 (4) SA 901
(A) at 906A-G.
Road Accident Fund v Murunga 2003 (5) SA 164 (SCA)
[2]
Mashinini
v Member of the Executive Council of Health, Gauteng Province
(1352/2017) [2021] ZAGPJHC 11 (25 January 2021); Tobi
v Road
Accident Fund (868/2010) [2013] ZAECGHC 94 (20 September
2013); Mantshira v Minister of Safety and Security and
Another
(4783/2011) [2016] ZAGPPHC 906 (12 October 2016); April v Minister
of Safety and Security 2008 (5) J 2 (QOD) 197 (E);
Matross v
Minister of Police and another 1978 (2) H2, QOD 779 (E), Fortuin v
Minister of Safety and Security (2728/02) [2007]
ZAWCHC; Morake v
Road Accident Fund (52700/15) [2017] ZAGPPHC 761 (6 November 2017)