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[2017] ZASCA 59
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Minister of Safety and Security v Augustine and Others (811/2016) [2017] ZASCA 59; 2017 (2) SACR 332 (SCA) (24 May 2017)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 811/2016
In the matter between:
MINISTER OF
SAFETY AND SECURITY
APPELLANT
and
RAYMOND
AUGUSTINE
1
ST
RESPONDENT
BASHNEE SHARON
AUGUSTINE
2
ND
RESPONDENT
JARRED SHELDON
AUGUSTINE
3
RD
RESPONDENT
CELINE JANINE
AUGUSTINE
4
TH
RESPONDENT
Neutral citation:
Minister of Safety and Security v
Augustine
(811/2016)
[2017] ZASCA 59
(24 May
2017)
Coram:
Shongwe ADP, Lewis, Petse and Mbha JJA and Gorven AJA
Heard
:
4 May 2017
Delivered:
24 May 2017
Summary: Delict:
General
damages: appeal against quantum: test: damages awarded not
disproportionate: appeal against punitive costs order: order
warranted: appeal dismissed.
ORDER
On appeal from:
Gauteng
Division of the High Court, Pretoria (Makgoka, Tolmay and Tuchten JJ
sitting as court of appeal):
The
appeal is dismissed with costs.
JUDGMENT
Gorven AJA (Shongwe ADP,
Lewis, Petse and Mbha JJA concurring):
[1]
This appeal is directed at the amount of general
damages awarded to the four respondents by the full court of the High
Court, Gauteng
Division, Pretoria (the full court) and the punitive
costs order which accompanied that award. The full court was hearing
an appeal
from the decision of Mali AJ, sitting as a judge of first
instance (the trial court).
[2]
The
claim related to damages arising from the unlawful entry into the
home of the respondents without their permission or lawful
warrant,
for the unlawful damage to one or more of the doors of their home and
the lock of a security gate, for the unlawful pointing
of firearms at
the respondents, for insulting, assaulting, humiliating and
intimidating the respondents. The trial court awarded
each of the
respondents general damages in the sum of R25 000 and costs on
the Magistrates’ Court scale.
[3]
This prompted an appeal by the respondents to the
full court. It was directed against the failure to award damages for
future medical
costs, the quantum of general damages, the rate of
interest and the date from which interest ran as well as the failure
to award
attorney and client costs, taxed on the high court tariff.
[4]
The
full court was unanimous in its view that the appeal should succeed,
that damages for future medical expenses should be awarded
and on the
interest rate and the date from which interest should run. However,
the court divided as to the quantum of general damages
and the costs
to which the respondents were entitled.
[5]
The
majority judgment was that of Tolmay J in which Tuchten J concurred.
It ordered the appellant to pay each of the first to third
respondents general damages in the sum of R200 000 and the
fourth respondent general damages in the sum of R250 000.
It
also ordered the appellant to pay both the trial and appeal costs on
the scale as between attorney and client, taxed on the
high court
tariff.
[6]
The
minority judgment was that of Makgoka J. He held that he would have
awarded all four respondents general damages in the sum
of R100 000
and granted party and party costs, taxed on the high court tariff. It
is against the order of the full court that
the appellant appeals,
with the leave of this court. The appeal is limited to the issues of
the quantum of general damages and
the costs award.
[7]
The
background to the claim is as follows. The first respondent was
employed as a quality supervisor for a vehicle tracking company.
His
family comprised his wife who was employed as a credit controller
(the second respondent), their 16 year old son (the third
respondent), their 15 fifteen year old daughter (the fourth
respondent) and their two-and-a-half year old baby boy. They resided
at 12 Mowbray Avenue, Benoni, in a semi-detached house adjoining
the house at 12B Mowbray Avenue. The two houses had
separate
entrances and separate numbers. Each number was displayed outside.
The two houses shared a common internal wall with no
interconnecting
door.
[8]
At
approximately 02h00 on 16 June 2009, the first respondent was woken
by the frantic barking of his dogs. He investigated by opening
the
bathroom window which looked onto the area in which the dogs were
confined. They quietened down when they saw him and he left.
Soon
thereafter, the dogs began to cry in a way he had never heard before.
He returned to the bathroom window and that is when
he saw people
inside the dining area pointing torches and red laser lights in his
direction. He responded by screaming at them.
Thinking that they were
housebreakers, he shouted for his son and set off for the bedroom in
which his wife and two and a half
year old baby were sleeping.
[9]
Before he could step out of
the bathroom door, he felt a rifle barrel held against him. He was
ordered not to look or talk and to
lie down. He obeyed. He heard
footsteps on the wooden stairs ascending to the loft. He initially
saw three to five people but later
realised that there were more. It
transpired that there were between 30 and 45 intruders in the house
and yard. None of them identified
themselves. He feared that his wife
or 15 year old daughter would be raped and felt helpless to prevent
it. He politely requested
the intruder holding the rifle against him
to take whatever he wanted but not to harm him. He told him where the
vehicle keys and
his wallet were located invited him to take them. He
heard his daughter scream and one of the intruders ordering her to be
quiet.
She was, however, too hysterical to be able to desist. He also
heard his son running towards the room where his mother had been
sleeping but then heard the son cry out that he was being hurt. His
son had been pinned to the floor under the boot of an intruder.
He
heard his wife telling an intruder that she wanted to go into the
bedroom to attend to the baby but her request was refused.
[10]
After he had requested the
intruder to take the valuables and car keys, the person was quiet for
about two minutes and then said
to him, ‘My friend, we are not
here to rob you, we are the police.’ This was about 30 minutes
after the house was entered.
The first respondent became angry and
tried to push the rifle aside. He asked why, if they were the police,
they were hurting the
family they were employed to protect. The
response was that the intruder could not give him any information and
he should wait
for the captain. During this period, he heard
cupboards being searched and, after a while, one of the intruders
said ‘clear’.
The intruders then began to leave the
property. He could observe that they were wearing what he referred to
as combat uniforms
but, since they were wearing balaclavas, could not
make out any of their faces. He could not see any nametags or other
form of
identification and also saw no police uniforms. During the
period of the incident, the only electric light burning in the house
was the one in the bathroom which the family left burning overnight.
The intruders had used only torchlight.
[11]
As
they were leaving through the front door, he noticed that the side
door had been broken in order to gain access. He became angry,
stopped some of them and told them that they could not simply do
something like that and then walk away. He required an explanation
as
to their conduct. He was told that Inspector Van Zyl would be there
to talk to him but, for the rest, his request was ignored.
After
insisting on an explanation, one of the young intruders told him that
they were looking for a person called Eugene, who had
robbed a casino
a few days before. He responded that there was no Eugene staying
there but that there was a Eugene staying in the
next door
semi-detached house at 12B Mowbray Avenue.
[12]
On
receiving this information, the intruders began to assault a
non-uniformed, handcuffed person, accusing him of having brought
them
to the wrong house. They then left, went to the next door house,
broke the gate down, booted in the door and entered. After
a while,
the police left in vehicles. Nobody came to him to explain what had
happened, including anyone named Inspector Van Zyl.
He had noticed
that the neighbours had witnessed the police leaving his home and
felt humiliated by this.
[13]
After the intruders had left
their home and he had seen them enter the next door house, he went
inside. When he was asked what had
happened next, he said: ‘We
were in a situation. We were distraught. We were trying to figure out
what was going on, why
this had happened and, you know, comforting
each other. My daughter was a mess. My wife was a mess. They were all
traumatised by
this. Luckily the baby did not experience any of this.
He was asleep. My son was complaining that the guy actually trampled
on
him. We were having a look at his back and we just could not
sleep. We were scared. We were scared. We were shaken.’
[14]
The intruders had cut a lock
in order to enter the driveway gate. The lock of a door to the house
was broken as was the sliding
gate lock. Two panes of glass on the
front door were broken. All of these items had to be replaced.
[15]
That morning, the first and
second respondents went to the Benoni Police Station to lay a
complaint against the police that had
come to his property. They also
wanted to seek counselling for their family to address the trauma
which they had experienced. At
the police station they were taken
into a private room where the station commander joined them. He was
very helpful until he heard
that they were alleging that it was the
police who had acted like this. He then left the room and, on his
return, told them that
they did not have a case and were wasting
their time. The second respondent began talking to a female police
counsellor at that
stage. She was being very helpful and told them
that they were entitled to lay a charge and should contact the
Independent Police
Investigative Directorate (IPID) to do so. The
station commander then called the counsellor aside and, after he had
spoken to her,
she said that she was unable to assist them any
further. The second respondent later begged her for her mobile number
which she
gave but, when she was phoned, she said that she did not
have the number of the IPID.
[16]
The respondents finally laid a
criminal charge. However, despite their mention that Inspector Van
Zyl was supposedly in charge of
the operation, the docket later
recorded that there had been a decision not to prosecute because the
identity of the suspects was
not known. The respondents also brought
this action which has led to this appeal.
[17]
It
is of some importance to note the manner in which the appellant
conducted the litigation in this matter. The appellant denied
liability in toto. Not only that, but the plea denied that any member
of the South African Police Service entered the house of
the
respondents. It also denied that any such member pointed a firearm,
assaulted, intimidated or humiliated any of the respondents.
It
further denied that any of the persons referred to by the respondents
were employees of the South African Police Service or
had acted in
the course and scope of their employment as such. At a later stage,
on a date which is not clear from the record,
the appellant amended
the plea. It alleged that, in search of a suspect in an armed robbery
and on reliable information that this
person resided at 12 Mowbray
Avenue, members of the South African Police Service arrived at that
address, knocked on the door,
identified themselves as police
officers, explained the reason for their presence at the premises and
requested permission to search.
Thereupon, the person who had
answered the knock opened the door and allowed them to search the
premises. The police then found
some documents displaying the names
of the suspect in one of the rooms in the house. The appellant went
on to plead that the search
was conducted decently and in an orderly
fashion, denying that there was any forced entry or any assault or
intimidation or humiliation
of any of the occupants of the house or
that any firearm was pointed at any of the occupants or that anyone
was detained. In the
alternative it was pleaded that if it was found
that any of the occupants had been intimidated, such intimidation was
necessary
in the circumstances.
[18]
At
the commencement of the trial, the appellant had refused to furnish
the respondents with copies of the discovered documents.
A formal
application to compel production had to be brought. This finally
resulted in an undertaking to provide what was termed
‘the
docket’ to the respondents. The version set out in the amended
plea was persisted in at the trial. It was correctly
found by the
trial court that this version was false. In addition, employees of
the appellant testified falsely that the semi-detached
houses were in
fact a single house. It was also falsely persisted in that a
document, as opposed to documents as was pleaded, bearing
the names
of the suspect was found in the home of the respondents. The full
court correctly found that the members of the South
African Police
Service, by giving false evidence, were simply attempting to defeat
the claim of the respondents.
[19]
After the incident, the family experienced
sleepless nights and flashbacks. The children were scared to sleep in
the dark. They
were scared to go out of the home at night. They
visited the family doctor and explained the whole situation. He
prescribed medication
to assist but that did not resolve their
problems. The work done by the first respondent required his leaving
home at night in
order to work on night shifts. His family was scared
to stay alone. He therefore started to work a normal shift and no
longer do
weekend or night shift work. The trauma associated with
their house reached a point where they relocated to another property.
The
first respondent had a heart attack which he attributed to the
stress caused by the incident. When he testified, on 18 August 2014,
the incident was still affecting his performance at work. This was
more than five years later. The fourth respondent’s academic
performance deteriorated. Whereas before she was a bright student,
afterwards she even had to repeat one of her grades. She refused
to
sleep in her bed and insisted on sleeping in the same room as the
first and second respondents. The third respondent became
aggressive.
At the time of the trial, he was still struggling to sleep at night.
[20]
The expert evidence of Dr Swanepoel was led. He
was a clinical psychologist who testified about the psychological
sequelae suffered
by the respondents. None of his evidence was
countered. He conducted a series of tests on each of the respondents
as well as interviewing
each of them extensively. He testified that,
because the incident took place in the home of the respondents, they
were no longer
able to view it as their place of safety or
protection, comfort or rest. This caused severe psychological
distress. Likewise, for
the first two respondents, their inability to
protect their children from being threatened created psychological
distress and had
a severe effect on their level of functioning. The
psychological trauma was exacerbated by their experience at the
police station
when the persons employed to serve and protect refused
to entertain their complaint. He went on to deal in detail with each
of
the respondents in turn. I will summarise aspects of his evidence.
[21]
The first respondent suffered from post-traumatic
stress disorder arising from the incident. This goes far beyond the
need to be
assisted after a traumatic situation which could be done
by a counsellor. It is a psychiatric disturbance and requires
specialised
treatment. Where post-traumatic stress disorder is
untreated, it will lead to major depression. Once that exists, there
are occupational
problems, general functioning problems and possibly
even suicidal thoughts and attempts. In addition, he suffered from
dysthymia
which includes a chronic feeling of ill-being and lack of
interest in activities that were formerly enjoyable. This was
diagnosed
as falling short of depression but causes a person to live
‘a life of depression’ and function at a low level. This
is only diagnosed after symptoms have persisted for two years or
more. The first respondent also suffered from sleeplessness and
anxiety.
[22]
The second respondent suffered from
post-traumatic stress disorder arising from the incident. She also
suffered from insomnia and
anxiety. Her inability to attend to her
youngest child resulted in feelings of guilt and self-blaming. Her
trauma was such that
she did not even hear the hysterical screaming
by the fourth respondent during the incident. The fact that the
intruders refused
to respond to the enquiries from the first
respondent led to a feeling that their existence was negated. This
can lead to psychotic
behaviour. It was understandable that she was
looking for an apology so that her existence could be confirmed. It
was clear when
she gave evidence that she was still emotionally
affected.
[23]
The third respondent, who had a booted foot
placed on his back and a rifle pointed at his head, also suffered
from post-traumatic
stress disorder, dysthymia and anxiety. This
would have been caused by his own trauma and by seeing his father
lying on the ground,
powerless and with a rifle to his head. It would
have been exacerbated by his inability to protect his sister. He even
attempted
to crawl to her when the boot was on his back and the rifle
at his head. He could not sleep for months after the intrusion. He
had lost respect for the South African Police Service. His academic
performance deteriorated as a result of his concentration being
impaired after the incident. He had aggressive impulses.
[24]
The fourth respondent suffered from
post-traumatic stress disorder which resulted from the incident. For
months after the incident
she could not sleep properly and every time
she closed her eyes she saw the flashlights and heard men screaming
at her. She became
too afraid to sleep on her own and had to sleep
with her mother. She was unable to sleep with the lights off. Her
friends informed
her that she had become short tempered and
irritable. She lost trust in and respect for members of the South
African Police Service.
She also suffered from severe traits of
paranoia and a sense of self-importance. The latter could be a
defence mechanism employed
to deal with anxiety. Hers was clearly the
worst case in the family and Dr Swanepoel expressed particular
concern for her wellbeing.
Dr Swanepoel recommended certain therapy
for each of the respondents in an effort to prevent a degeneration
into permanent depression.
[25]
The approach for arriving at the quantum of
general damages is well established. A court attempts to arrive at a
fair award to compensate
for the negative impact of the delict on the
life of the injured party. The amount of this award is therefore not
susceptible of
precise calculation.
[1]
It is arrived at in the exercise of a broad discretion.
[26]
The test for interference on appeal is:
‘[S]
hould an
appellate Court find that the trial Court had misdirected itself
with regard to material facts or in its approach
to the
assessment, or, having considered all the facts and circumstances of
the case, the trial Court's assessment of damages
is markedly
different to that of the appellate Court . . .’.
[2]
The first of these requires
analysis of the judgment to establish whether there have been
misdirections regarding either the proper
approach or the facts taken
into account. The second requires
the
appeal court
itself to broadly assess what
it would have awarded had it been sitting as a court of first
instance.
[3]
An
appeal court must interfere
if ‘
the
damages are so high [or low] as to be manifestly unreasonable.’
[4]
The underlying principle for this latter approach must be that the
award is so disproportionate that the appeal court can infer
that the
discretion accorded the trial court was not properly exercised.
[27]
The appellant’s counsel accepted that the
full court was entitled to interfere with the award of the trial
court. He was,
however, unable to point to any misdirection in the
judgment of the full court in the approach to the assessment or the
material
facts taken into account. Nor can I find any. His submission
was that the award itself warranted interference because it was
outrageously
high. In this regard, he submitted that the court a quo
did not pay due regard to the following dictum of Holmes J:
‘[T]he Court must take care to see
that its award is fair to both sides – it must give just
compensation to the plaintiff,
but it must not pour out largesse from
the horn of plenty at the defendant’s expense.’
[5]
[28]
This submission requires a consideration of
whether the award is egregiously disproportionate. If not, there is
no basis on which
we can interfere. Both counsel pointed to a number
of previously decided matters which, they submitted, should guide
this exercise.
It is worth remembering the part played by previous
awards in comparable cases. This was clearly expressed by Potgieter
JA:
[6]
‘
It should be
emphasised . . . that this process of comparison does not take the
form of a meticulous examination of awards made
in other cases in
order to fix the amount of compensation; nor should the process be
allowed so to dominate the enquiry as to become
a fetter upon the
Court's general discretion in such matters. Comparable cases,
when available, should rather be used to afford
some guidance, in a
general way, towards assisting the Court in arriving at an award
which is not substantially out of general
accord with previous awards
in broadly similar cases, regard being had to all the factors which
are considered to be relevant in
the assessment of general damages.
At the same time it may be permissible, in an appropriate case, to
test any assessment arrived
at upon this basis by reference to
the general pattern of previous awards in cases where the injuries
and their
sequelae
may
have been either more serious or less than those in the case under
consideration.’
[7]
And, while a court should
also take into account a significant reduction in the value of money,
the mechanical application of the
increase in the consumer price
index between the date of the award and the present case should
likewise be guarded against.
[8]
Some effect should, however, be given to it.
[9]
[29]
Both counsel accepted that there were no previous
matters which were directly comparable to the present one. Both
referred to the
matter of
Pillay v Minister of
Safety and Security
,
[10]
which influenced the full court in its decision. In this matter, the
police purported to act under an authorisation to search the
home of
the 62 year-old plaintiff. They broke through two security gates as
well as the entrance door in order to obtain access.
They damaged
certain interior doors, door frames, door locks and cupboard door
locks and scattered goods and belongings of the
plaintiff around the
house. The plaintiff was scared and called the flying squad to assist
her. She was body searched but how this
was conducted was disputed.
She suffered PTSD involving ‘
flash-backs
and reliving the traumatic event, anxiety, mood disturbances,
upsetting dreams, persistent avoidance, sleep disturbances,
impaired
concentration, memory deficiencies, depression, feelings of guilt,
rejection and humiliation
.’ Her
prognosis was poor. She was awarded general damages in the sum of
R150 000.
[30]
Counsel for the appellant submitted that the
award in this matter should not be based on
Pillay
for two reasons. The first was that the award in that matter was
‘grossly excessive’. The second was that the full
court
failed to distinguish the facts in this matter from those in
Pillay
.
Counsel for the respondents submitted that the full court correctly
held that
Pillay
was
the case which most closely resembled the present one. He also
submitted that the full court was alive to the distinguishing
features and also considered a number of other matters, including
those relied upon by the appellant in contending for a lower
award.
[31]
The second submission of counsel for the
appellant was withdrawn before us, as I have mentioned. No
misdirections on the part of
the full court were relied on. In my
view, this withdrawal was correct. The full court focussed on a range
of factors in the present
matter which had guided it. It also
considered a number of other cases dealing with psychological
sequelae and with unlawful arrest
and detention, some of which
resulted in substantial awards.
[32]
One of these was
Kritzinger
& another v The Road Accident Fund
,
[11]
where parents of two children killed in a motor vehicle accident
suffered from chronic PTSD and major depressive disorder. They
were
awarded R150 000 and R120 000 respectively in 2009. In
Marwana v Minister of Police
,
[12]
the employer of the plaintiff, a domestic worker, was robbed at his
home. When the plaintiff reported for work the following day,
she was
arrested and detained for just over a day. During that time she was
taken to her home where an unauthorised search was
conducted and she
was assaulted. Her general damages under various heads totalled
R155 000 in 2012. In
Minister
of Police v Dlwathi
,
[13]
the plaintiff, an advocate, was assaulted
resulting in a loss of hearing and depression. He was awarded a
reduced amount of R200 000
on appeal in 2016.
[33]
In
addition to these cases, the appellant referred to a number of cases.
The only one of these not already covered which is of relevance
is
that of
Minister of Safety and Security v Van
Der Walt & another
,
[14]
where the respondents had both been police captains prior to their
resignation. They were unlawfully arrested and detained. They
were
imprisoned by and in front of their erstwhile colleagues and suffered
dreadful conditions in the holding cells. One of them
could not sleep
well for a while afterwards and the other contracted influenza which
led to complications with his kidneys. On
appeal the award of
R250 000 was reduced to R120 000 in 2014.
[34]
In
the light of the abovementioned cases, it can hardly be said that the
awards made by the full court in this matter allow for
interference
on the test set out above. Some of the aggravating factors in this
case were that the incident happened in the dead
of night, it took
place in the sanctity of the respondents’ home, which
ultimately led to their relocation due to flashbacks
which must have
been exacerbated by passing the places associated with the events.
Moreover, the whole family suffered serious
sequelae such that their
ability to provide comfort and support to each other was compromised.
After the relevant cases and factors
were debated, the appellant’s
counsel simply submitted that the award was ‘a little bit
high’. That may be so
but that is not sufficient to warrant
interference by an appeal court.
[35]
The final submission of the appellant’s
counsel on the question of quantum was that the higher award of
R250 000 to the
fourth respondent was not justified. This is not
correct. The clear and unchallenged evidence of Dr Swanepoel was that
the fourth
respondent was the most seriously affected of all of the
respondents. She was even unable to testify due to the strong
probability
that this would be seriously detrimental to her health.
There is accordingly also no basis on which to interfere with this
aspect
of the quantum of damages arrived at by the full court.
[36]
Counsel for the appellant submitted that the
punitive scale of the costs order was not warranted. In particular,
it was submitted
that there was no appeal against the costs order
granted by the trial court and that the full court erred in
concluding that the
trial was extended by the denial that the police
were at all involved and that they acted unlawfully. As to the first
of these,
the notice of appeal to the full court requested costs on
the scale as between attorney and client. The submission is thus
without
merit. As to the second, not only was there no basis to
interfere with the exercise of the full court’s discretion, but
the
punitive costs order was fully warranted.
[37]
I
have set out quite fully earlier in this judgment the manner in which
the litigation was conducted. The approach taken is to be
deprecated.
When those entrusted with protecting the public
[15]
do the opposite, the least that can be expected is that they do not
compound this behaviour with deliberate falsehoods. These must
have
been made in full knowledge that if the respondents were able to
muster the resources to bring the matter to court, the denials
would
be shown up for what they were. In addition, giving false testimony
that a document bearing the name of the person they were
seeking was
found in the home of the respondents was a cynical attempt to mislead
the court. To then discover, but refuse to make
available, documents
in the matter forcing a formal application to compel disclosure
invites severe censure. From the expert report
the appellant was
aware of the trauma which the members of the South African Police
Service had caused the respondents. In causing
the respondents to be
cross-examined on the basis of the false version, with this
awareness, showed a total disregard for the police
motto to serve and
protect. The outrageous conduct of the police when it was realised
that the complaint of the respondents involved
fellow police officers
was cynical, self-serving and a clear attempt to impede the
respondents in their justifiable quest for justice.
It directly
ignored their obligations as police members. In addition, their
actions contravened the provisions of s 28 read
with
s 29
of the
Independent Police Investigative Directorate Act.
[16]
When counsel for the appellant was confronted with these factors, he
wisely and properly indicated that he would make no further
submissions on this point.
[38]
In
the result, the following order is made:
The
appeal is dismissed with costs.
________________________
T R GORVEN
Acting Judge of
Appeal
Appearances
For the Appellant:
M S Phaswane
Instructed by: State Attorney,
Pretoria
State Attorney, Bloemfontein
For the
Respondents: R J Groenewald
Instructed by: Aucamps Attorneys, Kempton Park
Symington & De Kok Inc,
Bloemfontein
[1]
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) para 20.
[2]
Per Mokgoro J, in
Dikoko
v Mokhatla
2006
(6) SA 235 (CC)
;
2007 (1) BCLR 1
;
[2006] ZACC 10
para 57,
summarising and approving the approach of this court in
Sandler
v Wholesale Coal Suppliers Ltd
1941
AD 194
at 200.
[3]
Dikoko
para
95. See also;
Sutter v Brown
1926
AD 155
at 171 and
Salzmann v
Holmes
1914 AD 471
at 480.
[4]
Per Wessels JA in
Black
& others v Joseph
1931 AD 132
at 150.
[5]
In
Pitt v Economic Insurance Co Ltd
1957 (3) SA 284
(D) at 287E-F.
[6]
Protea Assurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 535H-536B.
[7]
See also
De Jongh v
Du Pisanie NO
2005 (5) SA 457
(SCA)
para 63.
[8]
AA Onderlinge Assuransie Assosiasie Bpk v
Sodoms
1980 (3) SA 134
(A) at 141G-H.
[9]
Norton & others v Ginsberg
1953 (4) SA 537
(A) at 541C-E;
Seymour
note 1 para 16.
[10]
Pillay v Minister of Safety and Security
[2008] ZAGPHC 463
(2
September 2008).
[11]
Kritzinger & another v The Road Accident Fund
[2009]
ZAECPEHC 6 (24 March 2009).
[12]
Marwana v Minister of Police
[2012] ZAECPEHC 56 (28
August 2012).
[13]
Minister
of Police v Dlwathi
(20604/14)
[2016] ZASCA 6
(2 March 2016)
.
[14]
Minister of Safety and Security v Van Der Walt & another
(1037/13)
[2014] ZASCA 174
;
2015 (2) SACR 1
(SCA) (19 November
2014).
[15]
The preamble to the
South African Police Service Act 68 of 1995
says
that it was enacted to meet the need for a police service to:
‘
(a)
ensure
the safety and security of all persons and property in the national
territory;
(b)
uphold
and safeguard the fundamental rights of every person as guaranteed
by Chapter 3 of the Constitution;
(c)
ensure
co-operation between the Service and the communities it serves in
the combating of crime;
(d)
reflect
respect for victims of crime and an understanding of their needs;
and
(e)
ensure
effective civilian supervision over the Service . . .’.
[16]
Independent Police Investigative Directorate Act 1 of 2011. The
material parts of these sections read:
‘28 Type of matters to be
investigated
(1) The
Directorate must investigate-
(f)
any
complaint of torture or assault against a police officer in the
execution of his or her duties’
. . .
29 Reporting obligations and
cooperation by members
(1) The
Station Commander, or any member of the South African Police Service
or Municipal Police Service must-
(a)
immediately
after becoming aware, notify the Directorate of any matters referred
to in section 28 (1)
(a)
to
(f)
; and
(b)
within
24 hours thereafter, submit a written report to the Directorate in
the prescribed form and manner of
any matter as contemplated in
paragraph
(a)
.
(2) The
members of the South African Police Service or Municipal Police
Services must provide their full cooperation to the Directorate
. .
.’.