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[2023] ZAECMKHC 12
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Donatie v Minister of Police (Leave to Appeal) (1766/2019) [2023] ZAECMKHC 12 (6 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 1766/2019
In
the matter between:
DELORES
CECILIA DONATIE
Applicant / Plaintiff
and
THE
MINISTER OF POLICE
Respondent / Defendant
JUDGMENT IN
APPLICATION FOR LEAVE TO APPEAL
Rugunanan
J
[1]
This is an application for leave to appeal
against that portion of my judgment and order delivered on 2 August
2022 relevant to
both quantum and the scale of costs.
[2]
I shall continue to refer to the parties as
‘plaintiff’ and ‘defendant’.
[3]
The plaintiff’s claim was for damages
arising from an assault by a police officer/s pursuant to which she
sustained physical
injuries as well as a psychological injury
described as an ‘adjustment disorder’. My determination
on costs was that
they be awarded to the plaintiff on the
magistrates’ court scale. I have dealt with the reasons for my
order in the trial
judgment. I do not intend to traverse those
reasons for my findings as I have done so in some detail in the
judgment. In short,
I made an order that I considered was fair and
reasonable in the circumstances.
[4]
My award for general damages was a globular
amount of R160 000 and included
contumelia
as a component thereof. The plaintiff submits that there is a
reasonable prospect that a court of appeal will find that I was
mistaken; firstly, in my assessment of the amount awarded for general
damages; and secondly, in failing to have made a separate
award for
contumelia
.
[5]
As to costs, it was submitted that I failed
to exercise my discretion in a judicial manner and ought to have
awarded these on the
high court scale where the defendant had not
only agreed that it was unnecessary for the action to be transferred
to a lower court
but obliged the plaintiff to run the trial by
putting her to the proof of every aspect of her claim relevant to
both liability
and quantum.
[6]
To
begin with, it may be convenient to refer to section 17(1) of the
Superior Courts Act
[1]
(‘the
Act’). The section deals with the
circumstances
upon which leave to appeal may be granted.
[7]
In summary, ‘leave to appeal may only be given where the
[court is] of the opinion that’:
(a)
the
appeal would have a reasonable prospect of success (section
17(1)(a)(i)); or
(b)
there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration
(section 17(1)(a)(ii));
(c)
the
decision sought on appeal does not fall within the ambit of section
16(2)(a) (section 17(1)(b)); and
(d)
where
the decision sought to be appealed does not dispose of all issues in
the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties(section 17(1)(c)).
[8]
The
previously applied test was whether there were reasonable prospects
that another court ‘may’ come to a different
conclusion
[2]
. Section 17(1)
provides that leave may ‘only’ be granted in the
circumstances set out in the section.
[9]
Regarding
the word ‘would’ as it appears in section17(1)(a), in
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International
[3]
Smith J aptly put it thus:
‘
[4]
There can be little doubt that the use of the word ‘would’
in section 17(1)(a)(i)
of the Superior Courts Act implies that
the test for leave to appeal is now more onerous. The intention
clearly being to avoid
our courts of appeal being flooded with
frivolous appeals that are doomed to fail. I am, however, of the
respectful view that the
‘measure of certainty’ standard
propounded by the learned judge in
Mont
Chevaux Trust
may be placing the bar
too high. It would, in my respectful view, be unreasonably onerous to
require an applicant for leave to
appeal to convince a judge –
who invariably would have provided extensive reasons for his or her
findings and conclusions
– that there is a ‘measure of
certainty’ that another court will upset those findings. It
seems to me that a
contextual construction of the phrase ‘reasonable
prospect of success’ still requires of the judge, whose
judgment
is sought to be appealed against, to consider, objectively
and dispassionately, whether there are reasonable prospects that
another
court may well find merit in arguments advanced by the losing
party. . .’
[10]
Evident from the above is that the
legislated test set out in section 17(1)(a), is a higher test than
the test previously applied.
[11]
Unreservedly, I agree therewith in
principle.
[12]
The plaintiff’s approach is grounded
in the contention that her appeal would have a reasonable prospect of
success should
leave be granted and that the usual test in section
17(1)(a)(i) is applicable.
[13]
I disagree.
[14]
For reasons to follow, the appropriate test
lies in employing a different approach, regard being had to the facts
of this case.
[15]
To
a large extent the plaintiff’s grounds of appeal are factual in
nature. That being so, a court of appeal will not lightly
interfere
with the factual findings of a trial court unless there is a
demonstrable and material misdirection and/or a finding
that is
clearly wrong.
[4]
The principles
giving guidance to an appeal court in dealing with an appeal purely
on factual issues have been set out extensively
in
R
v Dhlumayo and Another
[5]
.
General Damages and
contumelia
[16]
My
award is criticised on the basis that I paid ‘lip service’
to the evidence relevant to quantum by failing to take
into account
the evidence of the entirety of plaintiff’s physical injuries
documented in a J88 report as also evidence that
she underwent a CT
scan as well as several features of the uncontested evidence by her
expert witness Professor Young. In detailing
those features in
paragraphs 1 to 6 of the plaintiff’s application for leave to
appeal
[6]
her counsel contends
that same were not reflected in my assessment of her damages and had
that been done I ought to have properly
made an assessment in the sum
of R300 000 in recognition of the ‘lifelong after effects
of her injury’.
[17]
An
assessment of an award for general damages is discretionary and the
degree of emphasis of any relevant fact is ordinarily a matter
of
discretion. There must of course be evidence to support an assessment
and the question will always be one of sufficiency, and
where the
evidence a court considers relevant permits a reasonable estimate
then an award should and will be made. In my trial
judgment at
paragraphs 28 to 42, I gave consideration to the evidence and the
legal principles that influenced my assessment.
Dhlumayo
proclaims that no judgment can ever be all-embracing or perfect and
it does not necessarily follow that because something has not
been
mentioned it has not been considered.
[7]
In my view this is particularly apposite if one considers that money
can never be more than a crude
solatium
for the deprivation of what in truth can never be restored. –
there is no empirical measure for loss and a court should not
be
extravagant in compensating the loss.
[18]
The
application for leave to appeal is supported by heads of argument
which includes reference to several awards featuring in Corbett
&
Honey’s Quantum of Damages. I am criticised for failing ‘to
take into account the plethora of decided and reported
cases’
included therein. The fallacy in this argument is that none of these
cases (or any other material) were referred to
during closing
argument at the conclusion of the trial. With respect, had the
material now referred to been brought to my attention
the result
might have been different. The introduction of the material at the
appropriate time ought to have been considered critical
to assisting
the court in its task of producing a just result.
[8]
[19]
My
impression of the present application is that it is misguided –
the material placed before me goes beyond what was argued
at the
conclusion of the trial. This soaks through the entirety of the
notice of application for leave to appeal.
[9]
[20]
An
application for leave to appeal is not intended to afford a party the
opportunity of arguing its case afresh on matter which
ought properly
and dutifully to have been placed before the court of first instance.
The amount claimed for general damages as
reflected in the
particulars of claim ought to have been properly substantiated in
argument. A court is entitled to accept that
practitioners are aware
or ought to be, of what can reasonably be claimed with due regard to
the facts and circumstances of a particular
case
[10]
and that they are equipped with the necessary resource material to
justify what is claimed.
[21]
The reasoning in my judgment for having
assessed R160 000 (inflation adjusted) is detailed. The reach of
the amount exceeds
the updated range in all the cases to which I have
had regard with the much appreciated assistance of defendant’s
counsel.
It is not suggested that I was wrong in my approach. Nor is
plaintiff able to point to any respect in which the evidence was in
tension with or failed to support the reach ultimately assessed. What
is argued is that I neglected features of the evidence and
critically
underestimated plaintiff’s damages and was wrong in failing to
have regard to the material that is now placed
before me.
[22]
Case
law distinguishes between satisfaction for
contumelia
and compensation for physical pain and suffering but sometimes courts
prefer making a single globular award in which
contumelia
is factored as a component of general damages. My approach was guided
by considering that the plaintiff’s damages are the
consequence
of the same wrongful act.
[11]
I considered it pragmatic to adopt a holistic process in terms of
which a single award for damages is made to avoid overcompensation.
The reach of my assessment went beyond the updated inflation adjusted
range of the cases to which I had regard. In my view
this gave
adequate recognition to the
contumelia
component.
[23]
Earlier
in this judgment I dealt in some length with the test the plaintiff
advocates for seeking leave to appeal. To repeat, leave
to appeal may
only be granted where the court concerned is of the opinion that the
appeal would have a reasonable prospect of success.
While I remain
unpersuaded that there are prospects of success, I take cognisance of
the pronouncement by the Supreme Court of
Appeal in
Caratco
(Pty)
Ltd v Independent Advisory (Pty) Ltd
[12]
where
it is indicated that if a court is unpersuaded that there are
prospects of success, it must still enquire into whether as
to the
provisions of section 17(1)
(a)
(ii)
of the Act there is a compelling reason to entertain the appeal.
Compelling reason would include an important question of law
or a
discrete issue of public importance that will have an effect on
future disputes. But here, the merits as well, remain vitally
important and are often decisive.
[13]
[24]
Where I deal with the question of costs,
and for reasons to follow I consider that there is ‘compelling
reason’ to grant
leave. I do so on the basis essentially set
out in this judgment – but do not limit such leave exclusively
to the costs issue
as I consider that it will be unjust to preclude
interference on appeal with the award for damages if it is found that
my assessment
– on the material as dealt with in my trial
judgment – is obviously wrong.
Costs
[25]
In
argument I was referred to the judgment of the full court of this
division in
Rieger
v van der Westhuizen
[14]
.
I concurred in that judgment. The broad injury sustained by the
respondent in the course of an assault was that pepper spray had
been
discharged into his face. He suffered ocular discomfort and went a
few hours later to the clinic for modest treatment and
received an
injection for a panic attack. There was no physical contact between
the parties to the assault, it was not an instance
of gender-based
violence (though racially motivated) and no
sequelae
followed. At the conclusion of the trial the respondent was awarded a
quantum of R60 000, comprising of R50 000 for
iniuria
and R10 000 for assault plus costs on the high court scale.
[26]
It was submitted further that I erred in
failing to take into account that the essence of the plaintiff’s
action centred around
an incident of gender-based violence, the abuse
of human rights and a clear act of collusion between multiple police
officers who
lied under oath.
[27]
Leave
to appeal was also motivated by the submission that
[15]
:
‘
[O]ur
precedent law requires that there must be some balance between the
qualities of judgments otherwise [legal representatives]
simply do
not know what to advise their clients … [and] … It is
not acceptable that a woman, who has endured lifelong
chronic serious
sequelae as part of a serious physical assault upon her, could be
awarded the same as a man who had one night of
ocular discomfort
only.’
[28]
Reference
was further made to a rule 37 minute concluded between the parties
wherein they agreed that it was not appropriate to
have the trial of
the matter transferred to another court, hence the litigation in the
high court was cast in stone and my decision
to award costs as I did
was inappropriate and should be revisited. In support of the binding
nature of a rule 37 minute plaintiff
relied on the decision in
MEC
for Economic Affairs v Kruizenga
[16]
.
[29]
Although I consider the facts in
Rieger
to be distinguishable from the plaintiff’s case, its reference,
I presume, was intended to demonstrate that I departed from
applying
a decision to which I am bound. Put otherwise, where quantum falls
below the jurisdictional ceiling of the magistrates’
courts, I
ought to have awarded costs on the high court scale. In heads of
argument plaintiff makes reference to a plethora of
awards in arrest
and detention cases where damages substantially less than R100 000
attracted high court costs. I recognise
that courts have granted
costs on the high court scale despite low awards in the cases to
which reference has been made. The analogy,
though intriguing, loses
sight of the established principle that applies when costs are
awarded (see below).
[30]
Kruizenga,
on
the other hand, was referred in support of the argument
substantiating the binding nature of a rule 37 minute. As I
understood
the argument, it was impermissible for me to have gone
beyond the consensus between the parties by having made a costs order
suited
to a forum in which they chose not to litigate or to transfer
the matter.
[31]
These arguments, if indeed they were
intended to achieve the purpose as I understood them, lose sight of
the fact that a costs award
reflects the exercising of a true
discretion. That has and remains the position in our law. It is
immutable – no hard and
fast rules can be laid down to bind a
court, and that is certainly not what
Rieger
intended to achieve, nor did
Kruizenga
.
A contention to the contrary is insupportable and loses sight of the
immutable legal position.
[32]
In argument emphasis was laid on the fact
that this matter involved the violation of important constitutional
rights and rights
of privacy and personal integrity of the plaintiff.
This case also bears a public interest element as,
inter
alia
, it relates to unlawful conduct by
the police and the protection of the rights of a citizen. An
attack on the rights of the
individual is an attack on the community
and the rasping of the rights of an individual erodes the rights of
the community as a
whole. Therefore in this type of case the
impact is not limited to the affected individual but extends to the
community of
which they form part. This underscores the
importance of the matter.
[33]
Having considered the argument, I am
persuaded that I awarded costs based merely on the quantum of damages
and by doing so I misdirected
myself. I accept that the consequence
of a failure to align myself with these considerations was a failure
to have exercised my
discretion judicially.
[34]
I think that it is also right to grant
leave to appeal for two further reasons: The first is that the
hearing was unnecessarily
prolonged and extended by a full day by
reason of the failure of the defendant’s witnesses, Sergeant
Patosi and Sergeant
Johaar, to attend court on 23 May 2022. The
second and perhaps more weighty reason is that I was faced with the
contradictory testimony
of several policemen who may have conspired
to put up a false version of what occurred.
[35]
I
acknowledge the weight of judicial authority to the effect that a
court of appeal would be slow to interfere with a judgment on
costs,
[17]
the impact of which
is that leave to appeal based solely against costs orders, is
rare.
[18]
[36]
I
am furthermore cognisant of the provisions of section 16(2)(a) of the
Act which requires that exceptional circumstances must be
established
for the applicant to succeed in an application for leave to appeal on
costs. ‘Very substantial’ costs (in
this case incurred
over a period of 5 days for running the trial) could be a ground for
finding exceptional circumstances.
[19]
[37]
In the final analysis it seems to me that
the prospects of demonstrating that I failed to exercise my
discretion on costs judiciously
brings one closer to finding
exceptional circumstances.
[38]
In the result, the following order is made:
1.
The plaintiff is granted leave to appeal to
the full court of this division against that portion of the judgment
and order delivered
on 2 August 2022 relevant to both quantum and the
scale of costs.
2.
The costs of this application shall be
costs in the appeal.
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Applicant/Plaintiff:
S. Cole SC
Instructed by
Lionel Trichardt &
Associates
c/o Wheeldon Rushmere &
Cole
119 High Street
Makhanda
(Ref: SA/Farenchia)
Tel: 046-622 7005
For
the Respondent/Defendant:
J. Bester
Instructed
by
The Office of the State Attorney
c/o Yokwana Attorneys
87 High Street
Makhanda
(Ref: N. Yokwana)
Tel: 046-622 9928
Date
heard:
07
November 2022.
Date
delivered:
06 February 2023.
[1]
Act 10 of 2013.
[2]
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888
(T) at 890B.
[3]
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International
[2016]
ZAECGHC 137; Also see
MEC
for Health, Eastern Cape v Neliswa Mbola
obo
Asavela
Mbola
[2019] ZAECMHC 21, where, with reference to the Supreme Court of
Appeal judgment in
MEC
for Health, Eastern Cape v Mkitha
[2016] ZASCA 176
at para 17, it was held: ‘. . . an applicant
for leave to appeal must convince the court on proper grounds that
there is
a “reasonable prospect or realistic chance of success
on appeal. A mere possibility of success, an arguable case, or one
that is not hopeless, is not enough. There must be a sound basis to
conclude that there is a reasonable prospect of success on
appeal.’
[4]
Mashongwa
v PRASA
2016
(3) SA 528
(CC) para 45.
[5]
1948
(2) SA 677
(A) at 705-706
[6]
And in heads of argument submitted for the application for leave to
appeal.
[7]
R v
Dhlumayo and Another
supra
at 678.
[8]
Compare
Saloman
and Others v S
[2013] ZAWCHC 111
paras 17 and 18.
[9]
Borrowing the phraseology used by De Villiers AJ in
Van
Zyl v Steyn
[2022] ZAGPPHC 302 para 26.
[10]
Diljan
v Minister of Police
[2022] ZASCA103 (23 June 2022) at para 20.
[11]
Compare
April
v Minister of Safety and Security
[2008] 3 All SA 270
(SE) at 283.
[12]
[2020] ZASCA 17
;
2020 (5) SA 35
(SCA) para 2.
[13]
Caratco
ibid
para
2; also
Ramakatsa
and Others v African National Congress and Another
[2021] ZASCA 31
para 10.
[14]
Unreported ECD Case No. CA 129/2019 delivered 21 July 2020.
[15]
Heads of argument, para 1.3.3.
[16]
2010 (4) SA 122
(SCA) at 126E.
[17]
Hotz
and Others v University of Cape Town
2018 (1) SA 369
(CC) paras 25 and 28. See also Van Zyl v Steyn
[2022] ZAGPPHC 322 relevant to an application for leave to appeal
against a costs
order.
[18]
Tebeila
Institute of Leadership, Education, Governance and Training v
Limpopo College of Nursing and Another
[2015] ZACC 4
para 13.
[19]
John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in
liquidation) and Another
2018 (4) SA 433
(SCA) para 8.