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[2018] ZAGPPHC 270
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Mojapelo t/a Jikeleza Tavern v Minister of Safety and Security and Another (66553/13) [2018] ZAGPPHC 270 (26 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 66553/13
DATE:
26/01/2018
In
the matter between
FRANS
MOJAPELO T/A JIKELEZA
TAVERN
PLAINTIFF
and
THE
MINISTER OF SAFETY AND SECURITY
1
st
DEFENDANT
CHARLES
KWAPA
MAREDI 2
ND
DEFENDANT
JUDGMENT
SENYATSI
AJ
INTRODUCTION
1.
This is a claim for damages arising out of the allegations made by
the police on 27 September 2012 in Siyabuswa that the Plaintiff
kept
human skeleton and an unlicensed firearm at his property.
2.
As a result of these allegations, the Plaintiff's safety was
endangered in his community and his dignity was violated. He had
no
option but to relocate from Siyabuswa to Mokopane and had to purchase
another property in Pretoria.
3.
At the hearing of the matter, the two legal representatives of the
parties informed me that the Defendants have conceded the
merits and
that it was quantum of the damages that had be determined by
this court.
4.
The Plaintiff's counsel submitted that the award for general damages
should be R2 million rand and the damages relating to the
costs of
transfer of two properties, one in Pretoria and another in Mokopane
should be R69 000 and R13 000 respectively.
5.
It was submitted for the Defendant by their counsel that an offer of
R500 000 was made to the Plaintiff in respect of general
damages and
the costs of transfer, but that same was rejected. He contended that
the offer was reasonable and appropriate means
to redress the damages
given the circumstances of the instant matter.
6.
It was furthermore submitted on behalf of the 1
st
Defendant that although the Plaintiff relocated from Siyabuswa, he
was still operating his tavern in the same place. This submission
was
not controverted for issue for determination.
7.
The issue for determination is whether the Plaintiff is entitled to
the quantum he seeks this court to determine.
LEGAL
PRINCIPLES
8.
It
is settled law that the court has a wide discretion in calculating
general damages in delictual claims
[1]
. Comparative awards in other cases might be useful guide. Although
they may be instructive, they are
not
decisive.
[2]
9.
In
Protea
Assurance Co Ltd v. Lamb
[3]
the
following instructive statement was said by court:-
"
It should be emphasised, however, that the process of comparison
does not take the form of 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
matter".
10.
The
main factor for determining quantum is the seriousness of the
iniuria
[4]
.
11.
In
Brenner
v Botha
[5]
where the plaintiff sued for the defendant for
iniuria
(for
insult) the full bench awarded the Plaintiff damages of £25. In
that case the defendant (the plaintiff's employer)
had
said to her (after she made a mistake on measuring
material)
'
you
are
too
useless
you
cannot
even
measure
material'.
The
court
regarded
the
award
of £25 pounds sterling
as
substantial
and comment
ed
that in cases founded our
iniuria
which
includes contumelia, substantial damages
are
always award
ed
by the court
12.
In
Ciliza
v Minister of Police and Another
[6]
where a policeman had referred to the plaintiff as "
kaffer"
and
persist
ed
in doing so after the Plaintiff had objected to this, the full bench
of court held that this was an unfounded aggression upon
the
plaintiff's dignity and ordered the Minister to pay damages of R1
50.00,
a substant
i
al
amount in 1976.
13.
In
Mbatha
v.
Van
Staden
[7]
the
court
awarded the Plaintiff damages of R2
000
for
t
h
e
insults and assault s which occurred after an altercation about a
parking place. At the scene the defendant repeatedly addressed
the
plaintiff as "kaffir", he threatened the plaintiff and
talked loudly and excitedly of murdering the plaintiff, slapped
his
face twice and threw a punch at the plaintiff s
head which missed. At the police station, when the policeman
left the
room the defendant resumed calling the
plaintiff "kaffir", repeated the threats
and punched
him twice in the face, knocking him to the floor and stunning
him.
14.
Our
courts have held that one of the rights protected by
actio
iniuriarum
is
the right to an unimpaired dignity.
[8]
15.
I now deal with the circumstances of this case. The accusation by the
second defendant that the Plaintiff was keeping human
skeleton
and unlicensed fire-arm at his property was, in my view,
of the seriousness nature and the iniuria suffered
has been conceded.
16.
In my view the Plaintiff is entitled to a substantial damages award.
He had to relocate his family from Siyabuswa as the insult
was
potentially endangering his live. We know in the Republic that
someone accused of keeping for instance human skeleton at his
house
in some communities may be associated with the practice of witchcraft
which may lead to such person being killed. This is
why our law has
made it a criminal offence to accuse any one of witchcraft. The
injury suffered as a result of such accusation
by the second
defendant is understandable and cannot be under estimated.
17.
I have considered the arguments made on behalf of the parties. In my
view an appropriate award of damages is the sum of R850
000.
ORDER
18
. The following order is made:-
(a)
The defendants are ordered to pay the Plaintiff the sum of R850
000.00
jointly and severally the one paying the other to be
absolved.
(b)
The defendants are ordered jointly to pay the costs of suit jointly
and
severally the one paying the other to be absolved.
___________________________
SENYASTI
M
Acting
Judge of the High Court
Judgement
delivered:
26 January 2018
Counsel
for the Plaintiff:
T.P Kruger
SC
Counsel
for the Defendants:
M. Mokadikoa
[1]
See
Southern
Versekering v
Carstens
1987(3)
SA
577
(A)
[2]
See Mngomezulu v
Minister
of
Law
and
Order
(2014) ZAKDHC 34
[3]
1971(1) SA 530 (A) at 535H - 536A, dominate the enquiring as to
become a fetter upon the court is
general
discretion in such matter.
[4]
See Charles Mogale & Other v Ephrain Seima 2008(5) SA 637 (SCA).
5.
[5]
1956(3) SA 257(T)
[6]
1976(4) SA 243(N)
[7]
1982(2) SA 260(N)
[8]
See Min ister of Police v-Mbilini
1983 (3) SA 705(A)
at 715F-G. Also
see Viviers v Jentile (2010) ZAGPPHC239 (10 December 2010)