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[2018] ZAKZPHC 33
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S.L and Another v Minister of Police and Others (2143/16) [2018] ZAKZPHC 33; 2019 (1) SACR 328 (KZP) (15 August 2018)
SAFLII
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO: 2143/16
In
the matter between:
S
L First
Plaintiff
M
H Second
Plaintiff
and
MINISTER
OF
POLICE First
Defendant
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES Second
Defendant
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS Third
Defendant
DIRECTOR
OF PUBLIC
PROSECUTIONS
KWAZULU-NATAL Fourth
Defendant
Coram:
Seegobin J
ORDER
In
the result, I make the following orders:
1 The defendants are
ordered to pay to each plaintiff the sum of R3 653 560.00.
2 The defendants are
ordered to pay interest on the above amount at the prescribed rate
from a date fourteen (14) days after date
of judgment to date of
payment.
3 The first and
second plaintiffs are ordered, jointly and severally, to
pay the defendants’
trial costs for 27, 28 and 29 May 2018 and 5 June
2018, such costs to
include the costs of two counsel.
4. The defendants
are ordered, jointly and severally, to pay the first and second
plaintiffs costs of the action from date of issue
of summons up to
and including 25 May 2018, such costs are to be paid on a party and
party scale and are to include the costs of
senior counsel as well as
the plaintiffs’ actuary (report only) but will exclude all
costs associated with the experts, Mr
Clive Willows and Professor
Joey Buitendach.
JUDGMENT
Seegobin
J
[1]
These are claims for damages brought by Mr S L (first plaintiff) and
Mr M H (second plaintiff) against the Minister of Police
(first
defendant), the Minister of Justice and Correctional Services (second
defendant), the National Director of Public Prosecutions
(third
defendant) and the Director of Public Prosecutions, KwaZulu-Natal
(fourth defendant). The plaintiffs’ claims are founded
on the
actio
iniuriarum
and arise out of their wrongful, malicious and unlawful arrest and
deprivation of their freedom and liberty which spanned a period
of 6
years and 11 months.
[2]
The total damages claimed by the first plaintiff amounts to
R11 062 074.00 while in the case of the second plaintiff
the amount claimed is R9 921 048.00. The individual heads
of damages claimed in respect of each plaintiff are as follows:
2.1 The first
plaintiff’s claim is for past and future loss of earnings
(R2 039 574.00); wrongful, malicious and
unlawful arrest
and deprivation of freedom and liberty (R7 000 000.00);
impairment to dignity and reputation (R1 000 000.00);
general damages for pain, suffering, discomfort, loss of amenities of
life and psychological trauma (R1 000 000.00) and
future
medical expenses (R22 500.00).
2.2 The second
plaintiff’s damages are for past and future loss of earnings
(R898 548.00); malicious and unlawful arrest
and detention and
deprivation of freedom and liberty (R7 000 000.00);
impairment to dignity and reputation (R1 000 000.00);
general damages for pain, suffering, discomfort, loss of amenities of
life and psychological trauma (R1 000 000.00) and
future
medical expenses (R22 500.00).
Liability
[3]
The defendants conceded liability on 17 May 2018. In terms of that
concession they agreed that they were jointly and severally
liable to
compensate each plaintiff for one hundred percent of his proved or
agreed damages. The trial on quantum proceeded before
me on 29 May
2018. The plaintiffs were represented by Mr Moodley SC and the
defendants by Ms Hemraj SC assisted by Mr Bedderson.
[4]
Both plaintiffs testified in their respective cases. Two expert
witnesses were called on their behalf: the first was Mr Clive
Willows, a clinical psychologist, and the second was Professor Joey
Buitendach, an industrial psychologist. While the defendants
closed
their case without calling any witnesses, the answers elicited on
their behalf under cross-examination, particularly of
the plaintiffs’
experts, have a substantial impact on some of the plaintiffs’
claims. I will revert to this aspect
later in the judgment.
General
principles governing the assessment of damages
[5]
In general a court has a wide discretion in determining fair and
reasonable compensation to an injured person. The purpose of
the
award is to provide much needed
solatium
for a persons injured feelings rather than to enrich him or her.
Boiselo AJA in
Minister
of Safety and Security v Tyulu
[1]
put the position as follows:
‘
In
the assessment of damages for unlawful arrest and detention, it is
important to bear in mind that the primary purpose is not
to enrich
the aggrieved party but to offer him or her some much-needed
solatium
for his or her injured feelings. It is therefore crucial that serious
attempts be made to ensure that the damages awarded are commensurate
with the injury inflicted. However, our courts should be astute to
ensure that the awards they make for such infractions reflect
the
importance of the right to personal liberty and the seriousness with
which any arbitrary deprivation of personal liberty is
viewed in our
law. I readily concede that it is impossible to determine an award of
damages for this kind of
injuria
with any kind of mathematical accuracy. Although it is always helpful
to have regard to awards made in previous cases to serve
as a guide,
such an approach if slavishly followed can prove to be treacherous.
The correct approach is to have regard to all the
facts of the
particular case and to determine the quantum of damages on such facts
(
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) at 325 para 17;
Rudolf
and Others v Minister of Safety and another
2009 (2) SACR 271
(SCA)
(2009 (5) SA 94
;
[2009] ZASCA 39)
paras
26-29).’
[6]
It goes without saying that an unlawful arrest and detention
constitutes a serious inroad into the freedom and rights of an
individual. As far as back as in 1954 Broome JP in
May
v Union Government
[2]
observed that: ‘Our law has always regarded the deprivation of
personal liberty as a serious injury’.
[7]
In this regard Nugent JA in
Seymour
,
supra
,
[3]
said the following:
‘
I do not
think that the courts in earlier cases placed less value on personal
liberty than ought to be placed on it today. Indeed,
what was said in
May
shows the contrary. Nor do I think there is any basis for concluding
that awards that were made at that time reflect a more tolerant
judicial view of incursions upon personal liberty. It was precisely
because personal liberty has always been judicially valued
that the
incursions that were made upon it by the Legislature and the
Executive at that time were so odious. The real import of
the
Constitution has not been to enhance the inherent value of liberty,
which has been constant, albeit that it was systematically
undermined, but rather to ensure that those incursions upon it will
not recur. To the extent that the learned Judge placed a
jurisprudential
premium on personal liberty that was absent before
now, in my view, it was misdirected.’
[8]
While I consider that the Constitution enshrines the right to freedom
and security of the person, including the right not to
be deprived of
freedom arbitrarily or without just cause, as well as the founding
value of freedom,
[4]
in my view,
courts should be careful not to over-emphasise the right in order to
punish a guilty party unduly. A delicate balance
must be struck
between the rights of an aggrieved party on the one hand and the
guilty party on the other in order to arrive at
an assessment which
is fair and reasonable in the circumstances.
[9]
Insofar as past awards are concerned, our courts have consistently
held that the assessment of damages with reference to past
cases are
fraught with difficulty and should be avoided. The following comments
by Nugent JA in
Seymour
,
supra,
are apposite in this
regard (references omitted):
‘
[16]
As pointed out by Botha AJA in
AA
Onderlinge Assuransie Assosiasie Bpk v Sodoms
,
it is generally undesirable to adhere slavishly to a consumer price
index in adjusting earlier awards. But, provided that that
stricture
is borne in mind, it is useful as a general guide to the
devaluation of money. In the cases that follow I have added,
in
brackets, the value of the relevant award adjusted according to
the indices in Koch.’
[17]
The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The
facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what
other courts
have considered to be appropriate but they have no higher value
than that. As pointed out by Potgieter JA in
Protea Assurance
,
after citing earlier decisions of this Court:
“
The
above quoted passages from decisions of this Court indicate that, to
the limited extent and subject to the qualifications therein set
forth, the trial Court or the Court of Appeal, as the case may be,
may pay regard to comparable cases. It should be emphasised,
however,
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
.”’
[10]
There are, in my view, two other factors that should guide a court in
arriving at an award that is fair and reasonable: the
first is that
the monetary award to be made represents nothing more than a
solatium
for the pain and loss suffered; the second is that a consideration of
the awards made in previous cases shows that our courts are
not
extravagant in compensating for such loss. The point was made
succinctly by Nugent JA in
Seymour
,
supra
, as follows:
‘
[20]
Money can never be more than a crude
solatium
for the deprivation of what, in truth, can never be restored and
there is no empirical measure for the loss. The awards I have
referred to reflect no discernible pattern other than that our courts
are not extravagant in compensating the loss. It needs
also to
be kept in mind when making such awards that there are many
legitimate calls upon the public purse to ensure that other
rights
that are no less important also receive protection.’
[11]
It is also not helpful to calculate a daily tariff or what has been
termed a ‘flat-rate’ in arriving at an award.
In
Mkwati
v Minister of Police
,
[5]
Mbenenge JP put the position as follows (footnotes omitted):
‘
It is also
incumbent on me to give heed to the principle recently enunciated by
the Supreme Court of Appeal that the amount of the
award is not
susceptible of precise calculation; it is arrived at in the exercise
of a broad discretion. In
Philip
v Minister of Police and Another
it was observed, in relation whether the court should calculate the
award on a daily tariff or a single all-inclusive award, that
the
nature of the compensation and the inherent variables applicable in
each case would be minimised by trying to place an average
daily
tariff on such a determination. The court went on to state that
“[t]he fact that each case must be considered on its
own merits
militates against a so-called average flat rate per day” and
that “a single all-inclusive award would appropriately
address
and express all the factors to be considered.”’
[12]
I should point out that in argument Mr Moodley agreed, correctly in
my view, that the proper approach would be to fix a globular
amount
in respect of non-patrimonial damages rather than attempt to fix flat
rate as has been done in certain cases.
[13]
The final point that I make on the assessment of damages, based on
the experience in this division, is that it is fast becoming
a
notorious fact that claims for personal injuries are being pitched at
such exorbitant levels thus making it extremely difficult
for courts
to make a proper determination. This relates not only to claims of
the kind under consideration herein but also to claims
against the
Road Accident Fund as well those arising out of medical negligence in
public hospitals. The notion seems to be that
since the State is held
liable the claims should be as high as possible. In my view, much of
the blame for this must be laid at
the doors of the claimants’
legal representatives and the experts employed. The difficulty posed
in such matters is that
it creates unrealistic expectations in the
minds of the claimants concerned. The further difficulty with such an
approach, in my
view, is that it loses sight of the fact that such
damages are not there to enrich but to serve as some form of
solatium
to
an injured person for the pain and loss suffered. The following words
of Holmes J in the matter of
Pitt
v Economic Insurance Co. Ltd
[6]
ring true today as they did in 1957.
‘
I have only
to add that the court must take care to see that its award is fair to
both sides – it must give just compensation
to the plaintiff
but not pour out largesse from the horn of plenty at the defendant’s
expense.’
The
Evidence
[14]
What follows is a summary of the evidence adduced by the plaintiffs
at the trial. I start with the evidence of the first plaintiff.
First
Plaintiff
[15]
Mr L is presently 36 years old. He was born on […] 1981. His
standard of education is Grade 9. Both his parents are
deceased. His
father died when he was 18 years old. His mother died in November
2006. He has two brothers and one sister.
Prior to his arrest
he had a relationship with a woman from whom one child was born, a
boy born on […] 2005. After leaving
school he found employment
at a Shell Garage in Verulam from 1999 to 2003. He earned a salary of
R90.00 per day. In 2003 he ran
a tuck shop in Verulam and earned an
average monthly profit of R4 000.00.
[16]
He testified to the manner in which he was arrested by members of the
South African Police Service during the evening of the
12
th
June 2006 and the events which followed. During the evening in
question he was asleep at his brother’s house when police
officers entered. It is common cause that they did so without a
warrant of arrest. He was assaulted by being slapped. His
hands were
handcuffed behind his back and he was struck with the butt of a
firearm.
[17]
In a half-naked state he was taken out of his house and flung him
into the back of a police vehicle. He was driven to a sugarcane
field
at Buffelsdale where he was accused of having robbed and raped a
person. There he was once again assaulted. He testified
that he
experienced a near death experience when a plastic glove was placed
over his head causing him to suffocate until he almost
lost
consciousness. A gun was placed in his mouth with a threat that he
would be shot. He was thereafter pulled to the ground with
a rope
attached to the handcuffs behind him and whilst he was lying on the
ground a dog was set upon him which bit him a number
of times in the
region of his groin. He bled profusely from the dog bites.
[18]
According to Mr L he had to endure the harrowing experience of being
driven in the back of the police vehicle throughout the
better part
of the night in a manner which caused him extreme discomfort, pain
and suffering while he was bleeding from the dog
bites. He was
eventually taken to a container at the Tongaat Police Station where
his torture and assault continued. After this
he was again taken to
the sugarcane field at Buffelsdale and thereafter to a place known as
Cotton Lands. Eventually he was
taken back to the Tongaat
Police Station and after being booked into a cell he was taken to the
Osindisweni Hospital where he was
treated. He testified that because
of the policemen’s intimation to the doctor on duty that he was
a robber and a rapist,
the doctor proceeded to stitch his wounds
without administering any anaesthetic to him. He confirmed that scars
continue to remain
up to the present time from the dog bites which he
had sustained at the time.
[19]
The assaults and torture continued throughout the period that he was
in custody at the police cells at the Tongaat Police Station.
He was
intermittently taken out from his cell and brutally assaulted. Whilst
these assaults were in progress the policemen involved
were consuming
alcohol. He eventually succumbed to the pressure and assaults which
were perpetrated upon him thereby admitting
to offences which he did
not commit. According to Mr L he felt as if he was going to die when
these assaults were being perpetrated
upon him. When he eventually
appeared in the Tongaat Magistrates Court, he informed the Magistrate
that he was being assaulted
on a daily basis and requested that he be
remanded to a place other than the Tongaat Police Station. Following
upon this request,
he was remanded in custody to the Westville
Prison.
[20]
He described his incarceration at the Westville Prison as being
horrific. He was initially placed in an overcrowded cell and
was made
to sleep on a filthy mattress on the floor. The cell had two open
toilets and one shower. His cell was infested with lice
and
cockroaches. He became a victim of the gangsterism which prevailed in
the cell. He testified that the gangsters harassed and
assaulted him
from time to time. He was threatened to join the so-called ‘28
gang’ in prison. He was given three options:
the first
was that he could sleep with ‘the general’ of the 28 gang
for three days; the second was that he should receive
28 slaps and
the third was that he could stab another person in prison. Mr L did
not take up any of these options. Informed the
prison warders of the
threats made against him and following upon this, he was eventually
transferred to another cell which he
described as having better
conditions.
[21]
Whilst he was in prison he was not allowed to attend his mother’s
funeral and this caused him great anguish and pain.
He
described a routine day at the Westville Prison as being the
following: They would be woken up at 03h00 every day. About
8 to 10
of the inmates would then proceed to the shower where they would be
allowed to take a shower for about a minute under cold
water. If they
spent longer than a minute in the shower, they would be assaulted.
After their shower they would stay awake until
about 07h00 when they
would then proceed to the kitchen area in order to obtain their
breakfast. Breakfast comprised of a spoon
of porridge and two slices
of bread and tea. They would then proceed back to their cells where
they consumed their breakfast. At
10h00 they would be taken out for
exercise and thereafter returned to the cell at about 11h00. They
would remain there until about
13h00 where after they would proceed
to obtain their lunch from the kitchen from whatever extra food they
received for lunch they
would retain some for supper. Thereafter they
would be locked in the cell until the next morning when the routine
would start all
over again.
[22]
Mr L testified that at his request he was transferred to another cell
where the conditions, as I pointed out, were much better
from a
gangsterism point of view but nonetheless were still bad. He
testified about the assaults which took place during the times
when
they went to the kitchen in order to fetch their food. These assaults
were in the form of initiation for a person to join
a gang. He
himself became a victim of such an initiation when he was stabbed on
the right side of his neck by another inmate with
whom he had no
quarrel. He received treatment at the King Edward Hospital for this
wound. The doctor who treated him informed him
that had the wound
been slightly deeper, he would have died. He was very fearful for his
life thereafter.
[23]
He testified that throughout his incarceration he was not afforded
any reading material nor was he allowed to have any contact
visits.
His sister who visited him from time to time brought his child to
such visits where they would communicate by a telephone
through a
window screen. After his release from custody he attempted to
re-establish a relationship with his child but found it
very
difficult to do so.
[24]
As far as his employment post-incarceration is concerned, he
testified that he was employed by Metier Concrete Mix from about
2014
until about 2017. According to Mr L, he was dismissed from this
employment mainly because he refused to do work privately
for the
manager of that enterprise at the latter’s house without any
pay. He further testified that when his employers became
aware that
he had served time in custody for robbery and rape they began making
disparaging remarks about this from time-to-time.
After he was
dismissed from Metier he resumed gardening work for a Mr Himesh who
was his sister’s employer.
[25]
According to Mr L he believed that he was treated differently by his
community after his release from prison. The community
did not
believe that he had been an awaiting trial prisoner. They were under
the impression that he had been sentenced and had
served time. They
accordingly regarded him as a criminal who had committed rape and
robbery.
[26]
He further testified that he suffers from severe headaches which he
believed are due to the constant and uncontrollable thoughts
that
have been running through his head as a result of his imprisonment.
He also still suffers severe pain from the dog bites especially
in
cold weather.
[27]
Under cross-examination by Ms Hemraj, Mr L admitted that he had been
arrested on two occasions prior to this. On the first
occasion he was
arrested on suspicion of being in unlawful possession of a firearm
and he was detained in custody for two days
and thereafter released
on bail. The case against him was eventually withdrawn. He agreed
that his detention on the first occasion,
although for a short
period, was traumatic.
[28]
On the second occasion which was on the 10
th
April 2006, he admitted that he was arrested and charged for being in
possession of a radio which was suspected to be stolen. He,
however,
maintained that this was his own radio. He was incarcerated for
approximately one month at the Westville Prison. The case
against him
was eventually withdrawn. He once again confirmed that his stay in
the Medium A section of Westville Prison whilst
awaiting trial, was a
frightening experience because even then there were threats of
assault and violence. Then too he was placed
in a crowded cell with
no privacy. It was pointed out to him that in the report compiled by
Mr Willows, it was mentioned that he
had been acquitted on the 11
th
May 2006. He, however, stated that this was a mistake.
[29]
He was closely questioned about the operation of his tuck shop
business prior to his detention herein. He stated that he rented
two
rooms from premises belonging to a Ms Hlengiwe. He described the
nature of his business and the nature of the grocery items
that he
sold. He maintained that his daily takings ranged from between
R300.00 to R350.00 per day. He was questioned on the profit
margins
derived from the sale of such items and he reiterated that on average
he made a monthly profit of R4 000.00. On further
questioning he
stated that his nett profit with his average monthly takings were in
the region of R4 000.00.
[30]
As far as his employment at the Shell Garage in Verulam is concerned,
he maintained that he received R90.00 daily from 1999
to 2003. He
worked 7 days a week and according to him, he performed his duties
diligently.
[31]
With regard to his employment with Metier, he maintained that the
manager consistently raised the matter of his imprisonment
at
Westville Prison with him and the fact that he was a member of a
gang. This was despite the fact that Mr L informed him that
he had
been acquitted of all charges. It seemed that the manager did not
believe him. He was eventually dismissed from Metier during
August
2017. While in his evidence-in-chief he maintained that the reason
for his dismissal was that he refused to perform any
work privately
for his manger and without pay, he now admitted that he was dismissed
because did not go to work which resulted
in disciplinary proceedings
being initiated against him. He admitted that he was dismissed as a
result of these disciplinary proceedings.
He maintained, however,
that had he not been dismissed, he would have continued working at
Metier.
[32]
After he left Metier he took up employment with Mr Himesh where he
earned R80.00 per day. He left Mr Himesh in 2013 as he was
accused of
instigating other employees by singing and making a noise.
[33]
Mr L testified that he currently works on a part-time basis two times
a week for Mr Himesh doing gardening. He is paid between
R80.00 to
R150.00 per day. He further testified that he is currently in a
stable relationship with another woman from whom he has
a child. He
has a good relationship with members of his family. He neither smokes
nor drinks alcohol. Under re-examination he reiterated
that his daily
takings were R300.00 to R350.00 per day.
Second
Plaintiff
[34]
Mr H’s evidence can be summarised as follows: He left school
after Grade 8. He was initially employed, after obtaining
his driving
licence in 2002, as a taxi conductor for a Mr Sifiso Hlela. He earned
R500.00 per week.
[35]
During the evening of the 12
th
June 2006, members of the South African Police Service arrived at his
house. They kicked open the door and arrested him. He was
handcuffed
behind his back and placed in a police vehicle. He was driven to a
sugarcane field at Buffelsdale where he was made
to climb onto the
back of a bakkie with his hands still handcuffed behind his back. A
police officer by the name of Soobramoney
stood on his thighs.
Another police officer, Mr Govender, approached Mr H and placed a
plastic glove over his head and face causing
him to suffocate.
Soobramoney then proceeded to kick him on his chest. He was tubed in
this fashion on about three occasions. He
heard other persons crying
and screaming out and assumed that they too were being brutalised.
[36]
Mr H testified that he was thereafter taken back to the Tongaat
Police Station where he was again assaulted by the investigating
officer, Mr Reddy. He was consistently assaulted during his period of
incarceration at the Tongaat Police Station. When he eventually
appeared at the Tongaat Magistrates Court, he requested that he be
detained elsewhere and following upon this request, he was remanded
in custody to the Westville Prison.
[37]
He further testified that whilst at the Tongaat Police Station he
would be assaulted on a daily basis by being kicked, booted
and tubed
as well. During these assaults he felt as though he was going die.
When he was remanded to Westville Prison he was placed
in Section 2,
cell 9 with other awaiting trial prisoners. His description of the
conditions of the cell accorded substantially
with that provided by
Mr L, the first plaintiff. Likewise the routine described by Mr H is
exactly the same as that described by
Mr L.
[38]
Mr H testified that he was assaulted by his inmates. He was not
allowed to attend his maternal grandmother’s funeral
and this
made him feel very bad. He was pressurised to join a gang by ‘the
general’ in charge of the 28 gang and he
was given two
options: He could either have sex with the general or he could
stab someone else. He felt bad about these options
and was unable to
sleep. Despite informing the prison warders of these options and
requesting to be transferred to another cell,
his request was denied.
Eventually, after witnessing the general sleeping with someone else,
he chose to stab another inmate rather
than sleep with the general.
He felt very bad about this because it was not his intention to stab
anyone but did so because of
the pressure that was placed upon him.
[39]
As far as the stabbing is concerned, he testified that the general
had given him a flat iron which was removed from the upper
part of a
shoe. He was instructed to stab a non-gang member and hold that
person so that he could be identified as the one who
had done the
stabbing. On a certain day he then chose a victim and stabbed this
person on top of his head. He testified that he
felt very sad about
this because the victim screamed and cried out loudly. Thereafter,
the warders approached and severely assaulted
Mr H. He was assaulted
with batons and was taken to hospital where he was kept for about two
weeks. His legs were swollen and he
had to use a wheelchair. He was
thereafter transferred to a cell where he was kept in isolation for
30 days. He described the conditions
of the isolation as being very
bad indeed. When he was discharged from the isolation cell he was
transferred to another cell in
Section B2.
[40]
He testified that in this cell the general caused his chest to be
tattooed intimating that before he could be properly accepted
as a
member of the gang, he would have to be tattooed. Thereafter the rest
of his body was tattooed by others on the instruction
of the general.
Mr H testified that he belongs to the Christian faith known as the
Shembe which strictly forbids tattooing of the
body. He testified
that if he did not allow the tattooing to take place, he would have
been stabbed by one of the members of the
gang.
[41]
Throughout his incarceration at the Westville Prison, he did not have
contact visits but spoke to his visitors through the
glass. Prior to
his incarceration he had a relationship with a woman called Madudu
from whom he had a child in 2000. He also had
a relationship with one
Nombulelo with whom he has a child. He testified that his
relationship with Nombulelo ended during his
incarceration. He
further stated that his first born child never visited him whilst he
was in prison.
[42]
He testified that after his release his community did not receive him
well. Members of the community seemed to be afraid of
him and were
under the impression that he was a person who had committed a crime
for which he had been detained for a lengthy period
of time. He had a
few friends before his incarceration and they too abandoned him after
he was released. He was unable to wear
any short-sleeve shirts or
shorts because of his tattoos.
[43]
He explained that he was unable to keep any jobs. Whenever he
revealed that he had served time in prison, his potential employers
would advise him that they would call him but did not do so. He
testified that apart from driving taxis, he was employed by a Mr
Kevin Maduray for whom he drove a water tank and earned R200.00 per
day. During this time they were involved in constructing roads
at
Eshowe. However, when the contract ended so did his employment. He
earned approximately R600.00 a week. Thereafter he was employed
as a
taxi driver until he was arrested for malicious damage to property.
After his release from prison he worked for Dawnco Plant
and Civils
earning R4 500.00 per month. His employer also paid for a room for
him. When this contract came to an end his employment
also
terminated. He thereafter went back to Mr Sifiso Hlela and was
employed as a taxi driver. He worked for Mr Sifiso Hlela for
a while
and thereafter became employed by Alkatrans where he drove a truck
and earned R5 000.00 per month. When his contact with
Alkatrans came
to an end, he found employment with a concern known as Action
Transport where he drove trucks and earned R1 250.00
per week.
He thereafter returned to Mr Sifiso Hlela and worked as a taxi
driver. He left this employment around March 2018 as he
felt
threatened when a group of males arrived at the taxi rank and
enquired about his whereabouts. Mr H further testified that
prior to
his incarceration he enjoyed playing soccer, cricket and volleyball.
He has no previous criminal convictions.
[44]
During cross-examination by Ms Hemraj, he stated that he was
instructed to stab a non-gang member and that he was to execute
the
deed whilst they were outside the cell on their way to the kitchen.
He made a random selection of his victim and chose someone
who was
smaller in build than him. He grabbed this person by the collar of
his shirt with his left hand and stabbed him with his
right hand on
his head. After he had stabbed him he continued holding him. The
warders then arrived and began assaulting him. He
was thereafter
taken to hospital and after his stay in hospital he was placed in
solitary confinement.
[45]
Ms Hemraj referred to a letter of demand written by his attorneys
wherein it is recorded that in 2010 one of the prisoners
threw an
object which appeared to be a knife at him and that he had sustained
a broken leg for which he had been placed in isolation
for thirty
days. It was suggested to him that the version contained in the
letter was different from the version to which he had
testified. He
maintained that his attorney was probably mistaken about the event.
He further stated that he did not sustain a broken
leg but that his
legs were swollen.
[46]
It was further put to him that in the report of Mr Clive Willows, it
is again mentioned that he had broken a leg. He again
stated that
this was not true. He agreed that becoming a member of a gang implies
that he enjoyed protection from other inmates.
He also agreed that no
pressure had been put on him to commit any acts of violence. He
agreed that all he was requested to do was
to recruit other members
to the gang. He stated he was forced to do this because he himself
had joined the gang in a forceful manner.
He agreed that apart from
the tattooing of his chest, the other tattoos on his body were done
over a period of time.
[47]
Mr H admitted that prior to his arrest, he was detained at the
Ndwedwe Police Station from 27 March 2006 to 3 May 2006. Prior
to
that detention he was charged for rape in 2004 and detained at the
Verulam Police Station for approximately three days where
after he
was released on bail. He stated that after the complainant had
testified in that case, the charge against him was withdrawn.
[48]
He admitted that his previous arrests and detention were also
traumatic experiences and that the cells in which he was detained
were dirty, crowded and lacked any privacy. He was not informed that
together with the malicious injury to property, he was also
being
charged with attempted murder. He agreed that his incarceration for
the latter two charges was traumatic and throughout these
incarcerations he did not earn any income nor was he able support his
family. He testified that currently he is in a stable relationship
with another woman. He also enjoys a stable relationship with members
of his family, who give him support. According to him he
performed
his work in a diligent manner at all times.
Mr
Clive Willows
[49]
As mentioned already, Mr Clive Willows is a clinical psychologist.
He was responsible for compiling a psychological report
in
respect of the two plaintiffs. He compiled a single report for both
Plaintiffs. His report is dated the 2
nd
May 2018 and is contained in Exhibit D.
[50]
Whilst it does not appear from the report itself, Mr Willows
testified that he consulted with each plaintiff for a period of
two
hours. In conducting his assessment and compiling his report, he was
furnished with a copy of the plaintiff’s particulars
of claim
but not the letter of demand. He confirmed that he did not rely on
any collateral information nor did he perform any of
the recognised
tests in order to make a diagnosis of Post-Traumatic Stress Disorder
(PTSD) in respect of both plaintiffs. His view
was that there was no
sufficiently recognised test in order to do this. On the basis of the
information provided by the plaintiff’s
themselves Mr Willows
concluded that both of them suffered from PTSD.
[51]
He testified that the plaintiffs’ experiences were
characterised by a profound sense of helplessness and an inability
to
determine what the outcome of the treatment would be. Both of them
were rendered helpless by the fact that they were handcuffed
and
significantly outnumbered by the armed men. Both have vivid
recollections of believing that they would be killed and that their
isolated and helpless situations provided no opportunity for escape.
Their exposure to having gloves covering their faces led to
near
death experiences where they relied on hostile aggressors for their
rescue.
[52]
According to Mr Willows his summary of the plaintiffs’
narratives accorded substantially with what the Plaintiffs themselves
told the Court in their evidence and what is contained in the
plaintiffs’ particulars of claim. He stated that the
plaintiffs’
captors were unable to appeal either to their
reason or their humanity which removed any realistic hope that they
could be saved
or freed from their plight. The plaintiffs informed
him that the living conditions were harsh and lacking in any
assurance of personal
safety.
[53]
He stated that over a prolonged period of approximately seven years,
not only were the plaintiffs subjected to hardship, but
mentally and
psychologically, they were traumatised by their experiences of
helplessness and not being heard and therefore believing
that there
may be no end to this experience. They were powerless to bring about
their own freedom and safety. According to Mr Willows,
the narratives
of the plaintiffs contained a recurring theme of their helplessness
and powerlessness. This is a core feature in
the cause of a
recognised psychiatric diagnosis known as PTSD. Associated features
are a sense of shock and horror and a belief
that one’s health
and life is in danger. Prolonged exposure to such stressful
circumstances can lead to a loss of hope and
the further diagnosis of
depression, as a major mood disorder. Extreme and protracted exposure
to such stress can culminate in
significant changes in belief systems
and personality.
[54]
He testified that the treatment received by plaintiffs would meet the
criteria of any recognised definition of torture and
as such would be
considered as a fundamental violation of human rights. Such rights
are designed to ensure that individuals are
able to have confirmation
of their sense of self-worth and value which are in themselves
central components of personal integrity.
He concluded that the
symptoms described by both plaintiffs are typically those associated
with PTSD and depression.
[55]
In respect of each plaintiff he stated that the second plaintiff, in
his own words, said that ‘I went off my head’;
he further
stated that the experience has changed his life; he lost any concern
about consequences and can be reckless; and he
has less compassion
for others. With regard to the first plaintiff, he speaks of the
difficulty to re-integrate into society where
he is treated with
suspicion and is shunned; he speaks of his deep anger and wish for
revenge (which has subsequently desecrated);
he has recurring
headaches; and in respect of both of them, Mr Willows stated that
both have intrusive memories and dreams of their
ordeal.
[56]
He stated that the plaintiffs were of similar age when they were
incarcerated and during this period they would be likely to
have
invested energy in the development of their careers, consolidate
relationships and in their case, they were actively involved
in the
development of relationships as fathers. In these areas they have
been extensively handicapped and disadvantaged. They are
aware that
their peers have progressed whilst they have to ‘start again’.
[57]
Mr Willows concluded by stating that both plaintiffs have suffered
considerable psychological trauma from the time of their
arrest until
their release and subsequently as they attempt to re-integrate into
society and family units. The consequences they
describe are
logically congruent with the experiences they describe and are
congruent with psychological literature pertaining
to experiences of
torture and trauma. There is no evidence of exaggerating claims.
[58]
According to Mr Willows, apart from psychological trauma and harm,
both have experienced physical discomfort, pain and suffering.
Their
long period of incarceration removed them at a critical time from
their personal and career advancement and has handicapped
their
development and financial security. He stated that if made public
their experiences would create in their society at large,
a sense of
vulnerability that the state powers are such that individuals have no
protection from possible torture and extensive
incarceration,
regardless of innocence or evidence in their own defence. It would be
difficult for those not involved in the criminal
justice system to
understand how it may take up to 7 years to gather the evidence in
order to secure a conviction.
[59]
He stated that the consequences have been both immediate and
long-term. He found it difficult to conclude with certainty that
they
would not be permanent. In his opinion, both plaintiffs require
psychological help to re-integrate into society and to address
the
self-harming habits that have become evident in their personalities
and behaviour. In this regard he recommended weekly sessions
for 6
months (25 sessions for each). The current medical aid rate is
R900.00 per one hour session.
[60]
Under cross-examination by Mr Bedderson, Mr Willows confirmed that in
carrying out his assessment of the plaintiffs he relied
on their
reports to him based on their subjective accounts which were explored
by him with them. With respect to their prior incarcerations,
he
stated that such incarcerations would have an effect on them but it
would be difficult to integrate the effects of their previous
incarcerations with their latter incarceration. Whilst he agreed that
there were isometric tests that were available, he averred
that the
American scenario was not suitable to be applied to South African
citizens especially those with a low educational level.
He stated
that the plaintiffs used mild words to depict the emotions from which
they suffer. He averred that his opinions may be
accepted because the
plaintiff’s account of events forms a logical link to the
psychological conclusions which he has made.
[61]
When asked by the court what he would have done if he had more time
in order to carry out his assessment, Mr Willows stated
that he would
have sourced collateral information by interviewing family members
and the people who knew the plaintiffs prior to
their arrest and he
would have questioned the plaintiffs more deeply. He was further
asked by the court following upon the previous
question and the
evidence led by the plaintiffs in the trial, whether he was confident
in the contents of his report and with enough
time, he would have
made observations thus leading to a different conclusion. He paused a
long time before responding to these
questions and then explained
that the questions were loaded and enquired whether he was being
asked to undermine his own report.
Professor
Joey Buitendach
[56]
The next witness called by the plaintiffs was Professor Joey
Buitendach, an industrial psychologist. Mr Moodley took the witness
through two reports which she had allegedly compiled on behalf of the
plaintiffs. She was led extensively in her evidence-in-chief
on the
contents of both reports. However, under cross-examination by Mr
Bedderson, it turned out that Professor Buitendach had
not
interviewed either of the plaintiffs and relied on the information
obtained from the plaintiffs by an intern employed by her
who was a
qualified Industrial Psychologist. She was specifically asked by Mr
Bedderson if she had informed the plaintiffs’
legal
representatives that she was not personally involved in the
assessments but that these were done by her intern. She replied
in
the affirmative. When asked by the Court on whether she could vouch
for the correctness of the evidence contained in the report,
she
stated that she could not. In light of this, Mr Moodley did not
re-examine Professor Buitendach. In argument, Mr Moodley pointed
out
that he considered her to be a dishonest witness and that very
unfortunately for the plaintiffs, her evidence with respect
to their
employment and their loss of earnings or earning capacity could not
be properly corroborated with credible evidence from
an expert
source.
Facts
that are common cause or not disputed
[57]
The following facts which emerge from the evidence and the
particulars of claim are either common cause or not disputed.
57.1 Following upon
his arrest during the evening of 12 June 2006, Mr L was charged with
the following offences: on count 1 he was
charged with housebreaking
with intent to rob and robbery allegedly committed on 5 May 2006; on
count 4 he was charged with the
rape of a 38 year old woman, such
offence being allegedly committed on 5 May 2006; on count 7 he was
charged for unlawful possession
of a firearm, to wit a shotgun,
allegedly committed on 13 June 2006, and on count 8 he was charged
for unlawful possession of ammunition,
to wit: 3 live shotgun rounds,
allegedly committed on 13 June 2006.
57.2 The case made
out by Mr L is that despite him informing the police in his
particulars of claim that he could not possibly have
committed the
offences in counts 1 and 4 as at the relevant time he was in custody
from 13 April 2006 to 11 May 2006 for an offence
of being in
possession of or receiving stolen property, none of the defendants
servants took any steps to verify his alibi.
57.3 The case made
out by Mr L on counts 7 and 8 is that he had not committed any of
these offences and that the police had falsely
and maliciously
preferred these charges against him.
57.4 As far as Mr H
is concerned, following his arrest on 12 June 2006, he was charged on
count 1 with housebreaking with intent
to rob and robbery which
allegedly took place on 5 May 2006 and on count 2 he faced a charge
of housebreaking with intent to rob
and robbery which allegedly took
place on 2 April 2006.
57.5 The case made
out by Mr H is that despite him having informed the police and the
servants of the other defendants that he could
not possibly have
committed the offence in count 2 because at the relevant time he was
in custody at the Ndwedwe Police Station,
alternatively at Westville
Prison, on a charge of malicious injury to property and further, that
he could not have committed the
offence in count 1 because on his
release from custody on 3 May 2006, he proceeded to his mother’s
home where he remained
for a number of days, none of the servants of
any of the defendants took any steps to confirm his alibi.
57.6 Both plaintiffs
averred that they were unable to obtain bail due to the opposition
thereto by the investigating officer as
well as the prosecutors
involved.
57.7 There is no
dispute that of the 6 years and 11 months spent in custody, 5 years
thereof were taken up by the trial that ensued.
Both plaintiffs were
legally represented throughout. At the culmination of the trial both
plaintiffs were found not guilty and
acquitted of all charges on 6
May 2013. The present action was instituted on 1 March 2016. It was
preceded by a letter of demand
dated 23 July 2013.
Findings
[58]
In favour of both plaintiffs and based on the evidence I take the
following into account:
58.1 From the time
of their arrest during the evening of 12 June 2006, both plaintiffs
were subjected to the most humiliating, degrading
and dehumanising
treatment at the hands of the police. This took the form of severe
assaults: first at their respective places
of residence and
thereafter in the sugarcane fields at Buffelsdale. It was here that
the barrel of a gun was placed in Mr L’s
mouth with a threat
that he would be shot. It was also here that a rope was attached to
his handcuffs and a police dog set on him.
Even though he received
treatment at the Osindisweni Hospital for his dog bite injuries, this
treatment was carried out without
any anaesthetic.
58.2 The assaults on
both plaintiffs continued throughout their detention in the police
cells at the police stations concerned.
While their request to be
transferred to the Westville Prison was acceded to, the conditions to
which they were subjected at Westville
were nothing short of
appalling: the cells were over-crowded with 40 to 60 inmates
being housed in a single cell; the cells
were filthy, unhygienic and
infested with lice and cockroaches; only 20 beds were to be found in
these cells with the rest of the
inmates having to sleep on the floor
on thin mattresses and use filthy blankets; they were each subjected
to the added indignity
of using the open toilet and shower found in
the cell in view of everyone else.
58.3 Both plaintiffs
became victims of gangsterism and the constant threat of assaults and
reprisals. This was no doubt to be expected
given the prevalence of
gansterism in our prisons. While Mr L was brave enough not to succumb
to any of the options given to him
by the ‘general’ of
one of these gangs and was moved to another cell with better
conditions, Mr H was not that fortunate.
His request for a transfer
was denied by the prison warders. He then elected to stab an inmate
so as to ensure his acceptance by
the gang. This stabbing of course
resulted in him being severely assaulted by the warders and being
placed in solitary confinement
for a period of 30 days. Mr H will
forever carry the reminders of his membership to the gang in the form
of tattoos that grace
his body. Mr L, on the other hand not only
bears the scars of the dog bite wounds on his leg, but he also
carries a scar arising
out of a stab wound which was inflicted by one
of the inmates on the right side of his neck.
58.4 Both plaintiffs
suffered the pain and distress of not having any contact visits with
their loved ones. Both of them also suffered
the pain and anguish of
not being allowed to bury loved ones who passed on while they were in
custody – Mr L in particular,
was severely affected by the fact
that he was unable to attend his mother’s funeral. Both
plaintiffs lost the opportunity
to establish meaningful relationships
with their children who were quite young when the plaintiffs were
detained. Both plaintiffs
suffered a loss of amenities of life, more
so in the case of Mr H who testified that he enjoyed playing soccer,
cricket and volleyball
prior to his incarceration. Mr H also
testified that he now finds it difficult to wear short-sleeve shirts
and shorts due to his
tattoos. Both plaintiffs also testified that
they find it difficult to re-integrate themselves into their
communities as they feel
that community members are afraid of them
and view them as criminals due to the lengthy period they spent in
detention.
58.5 Both plaintiffs
were about 25 years old when they were detained on charges in this
matter. They were approximately 32 years
old by the time they were
released. Six years and eleven months is indeed a long time to be
deprived of one’s liberty and
personal freedom. It is also a
long time to be deprived of an opportunity to establish a career, to
strengthen personal relationships
and in general to create a sense of
self-worth and well-being. The impact that a long period in prison
has on one’s life
was commented upon by Van der Byl AJ in
Zealand
v Minister of Justice and Constitutional Development and another
[7]
in the following way:
‘
If
there is any doubt in one’s mind as to the effect some 5½
years’ imprisonment, particularly, the suffering
and anguish a
person so imprisoned, must endure, one can only cast your mind back
in your own life over such a period and consider
how much has
happened to you in those years and how long ago it has seemed. In the
words of Holmes JA in
S
v V
1972 (3) SA 611
(AD) at 614 G:
“
. . .
enlivened by domestic happiness and the free pursuit of their
avocations . . . (n)o such ameliorations attend the slow tread
of
years when you are locked up.”
The
following passage from the judgment in
S v Martin
1996 (2)
SACR 378
(W) at 385i – 386a is also instructive:
“
To have
freedom restricted, especially if there is confinement to a small
area, is in itself a severe punishment. A long period
of such
restriction will to all but the most hardened increasingly border on
earthly hell. To have to endure that in the company
of unpleasant
character . . . Personally, though this can be no more than my own
view, I think that no life at all can be less
harsh than a life
without any positive quality at all, but replete with enumerable days
each brimming with the new day’s
repetition of tragedy,
boredom, tensions and reminders that you will at all times be
indigestible to the stomach of the community.’”
[59]
Against the plaintiffs and based on some of the responses given by
them and their experts under cross-examination, I make the
following
findings:
59.1 It is clear
that this was not the first time that the plaintiffs were arrested
and detained by the authorities on various criminal
charges. As I
pointed out already, Mr L had been arrested and detained on two prior
occasions on different charges. So too was
Mr H. In all probability I
consider that the conditions in the police cells on those occasions
were hardly any different from those
experienced on this occasion.
The point I make is that theirs is certainly not a case where two
people were suddenly plucked out
of society and forced to experience
these horrific treatments and conditions.
59.2 A further fact
which became apparent in the evidence is that their criminal trial
took at least five years to be finalised.
In all this time both
plaintiffs were legally represented. While they complained that they
were not released on bail, it is not
clear on the evidence precisely
what steps were taken, either by them or their legal representatives,
to pursue further bail applications
and/or appeals arising from the
refusal thereof. Nor is there any evidence to suggest that the sole
delay in finalising their respective
trials lay with the authorities
concerned.
59.3 As far as the
plaintiffs difficulties in re-integrating themselves in society is
concerned, whilst I accept that such difficulties
may have existed
when they were initially released from prison, I do not accept that
these difficulties are ongoing and will continue
to persist. There is
very little in the evidence itself of both plaintiffs to suggest that
they are finding it extremely difficult
to re-adjust and re-establish
themselves in society. On the contrary the evidence shows that both
of them were able, within a short
time of being released, to find
reasonable employment and to maintain such employment for fairly long
periods. Mr L’s employment
with Metior Concrete for instance
went on for about three (3) years and ended more because of his
absenteeism rather than for any
other reason. In Mr H’s case
his employment generally came to an end when contracts terminated
rather than through any fault
on his part.
59.4 Observing the
plaintiffs testifying and quite contrary to the findings made by Mr
Willows, I did not get the impression that
these were young men
filled with bitterness and hate flowing from the way in which they
were treated by the authorities. From their
demeanour in the witness
box and the confident manner in which they testified, it seemed to me
that the plaintiffs are keen to
just get on with their lives: both of
them are currently in stable relationships with other women; Mr L has
in the meantime also
fathered another child; both of them enjoy good
relationships with members of their families, who continue to provide
them with
care and support.
59.5 In light of
these factors I find it extremely difficult to accept Mr Willows’
diagnosis of severe post-traumatic stress
disorder being suffered by
both plaintiffs. As I pointed out already this diagnosis by Mr
Willows was made after a short consultation
with the plaintiffs and
without subjecting them to any of the recognised
psychological/psychometric tests generally used to make
such a
diagnosis. I consider that the nature of the evidence relating to
PTSD as presented by Mr Willows in this matter is quite
different
from that presented by the plaintiffs in
Minister
of Safety and Security v Augustine and others
[8]
in which the evidence of Dr Swanepoel was led. Dr Swanepoel, a
clinical psychologist, testified about the psychological
sequelae
suffered by the plaintiffs in that matter. What was relevant about
his evidence was that he had conducted a series of tests on
the
plaintiffs and also interviewed them extensively before concluding
that they suffered from PTSD. This was quite different from
what Mr
Willows did in the present instance. I am accordingly driven to
conclude that no reliance can be placed on the evidence
of Mr Willows
and his diagnosis of PTSD in respect of both plaintiffs is highly
unreliable. In my view, the failure on the part
of Mr Willows to
consult extensively, to carry out any of the recognised tests and to
have regard to collateral sources has seriously
prejudiced the
plaintiffs in their claim under this head. However, despite my
rejection of Mr Willows’ evidence on the issue
of PTSD, I
nonetheless lose no sight of the fact that the plaintiffs have been
in detention for a lengthy period of time thus making
it difficult to
re-adjust completely to a normal life in society. I accordingly
consider that a few sessions of psychotherapy may
assist to alleviate
the painful memories and discomfort of the past and to allow them to
look to the future with a renewed sense
of purpose and positivity.
59.6 As far as the
claims for past and future loss of earnings or earning capacity are
concerned the following factors are relevant:
59.6.1
Neither of them produced a shred of reliable evidence to prove the
nature of work they performed and how much they earned
pre-incarceration. While Mr L testified that he ran a tuck shop after
working at a garage at Verulam, he produced no tangible evidence
whatsoever to substantiate this. He could, for instance, have called
some corroboratory evidence in the form of members of his
family or
the landlady of the premises from whom he rented to substantiate his
claims. His failure to understand the difference
between gross income
and profit seems to suggest that his evidence was contrived. This
notwithstanding, the defendants have reasonably
conceded that Mr L
should be compensated for past loss of earnings for the period of his
incarceration. The approach by the defendants
which, in my view is
fair and which I accept, is that Mr L should be regarded as falling
into a category of unskilled labour which
mediun according to Robert
J Koch in his
2018
Quantum Year Book
translates to a salary of R2 150-00 per month.
59.6.2
As far as Mr H is concerned, he claimed that pre-incarceration he
drove a taxi for Mr Hlela and earned R500-00 per week.
Once again, no
evidence was produced to substantiate his claim. One would have
expected him to at least call Mr Hlela to confirm
this since he
worked for him again as recently as in March 2018. Despite this
paucity of evidence from Mr H, the defendants once
again conceded
that the same approach be adopted as with Mr L. In respect of both
plaintiffs, however, they contended that a contingency
factor of at
least 25% be applied due to the lack of evidence relating to their
respective work histories.
59.6.3
Turning to their claims for future loss of earnings, neither
plaintiff has shown that he is unemployable. On the contrary,
the
evidence shows that both of them were in stable employment for long
periods of time post-incarceration and only lost employment
for the
reasons outlined already. Both of them seem to be good workers and
performed their work diligently. They both seem to suggest
that they
tend to lose their employment because of some stigma attached to them
arising out of their incarceration. This can hardly
be the case:
whatever unsavoury comments were directed at Mr L for instance, this
did not deter him from continuing his employment
with Metier for
almost three (3) years until he was eventually dismissed due to
absenteeism; in Mr H’s case he worked for
transport companies
for long periods but lost his employment whenever contracts came to
an end and not because of any fault or
misconduct on his part. The
reason for him abandoning his last employment with Mr Hlela is rather
strange – he claims he
did so out of fear that certain people
came looking for a certain ‘Patrick’ at the rank and he
feared that they were
looking for him and yet on his own evidence he
was never known as Patrick at the rank but rather as ‘Bhoho’.
No reasons
were advanced by Mr H as to why he considered his life to
be in any danger. It seems to me that this evidence was contrived to
bolster his claim under this head.
59.6.4
Just to conclude on the aspect of loss of earnings, as conceded by
Mr Moodley, no reliance whatsoever can be placed on the
evidence of
Professor Joey Buitendach and/or the projections made by her
regarding the possible employment prospects of both plaintiffs.
Damages
for non-patrimonial loss
[60]
I now turn to consider the most difficult aspect of this case and
that is to determine what amount would represent fair and
reasonable
compensation for the plaintiffs arising out of their extraordinarily
long period of incarceration. As I alluded to in
paragraph 12
supra
,
I intend fixing a globular amount in respect of these damages rather
than attempting to determine an amount under each specific
head or to
determine a flat-rate per day.
[61]
In contending for an award of R7 million for each plaintiff, Mr
Moodley submitted that such an amount was justified given the
peculiar circumstances of the case, in particular the duration of the
incarceration. Both in written argument and oral submissions
Mr
Moodley referred to a number of past cases dealing with awards for
unlawful detention. For purposes of this judgment I do not
intend
referring to each and every case relied on by the plaintiffs. As I
pointed out already, no two cases are alike and past
cases merely
serve as a guide and nothing more. The current day value of such
awards will be denoted in bold:
61.1 In
S
S Mkhize v Minister of Justice and Constitutional Development,
[9]
an unreported judgment by my brother Bezuindenhout AJ (as he then
was), the plaintiff was incarcerated for a period of 27 months
from
November 2001 to February 2004. In awarding the plaintiff the sum of
R2 million for general damages, Bezuidenhout J said the
following at
paragraph 18:
‘
The
facts of each case must be considered in determining the damages to
be awarded. It is however helpful to consider awards in
other cases
in determining the damages. In
Thandani
v The Minister of Law and Order
1991 (1) SA 702
(ECD) an organiser of a general workers union was
detained for 88 days and an amount of R22 000.00 was awarded
which translates
to approximately R80 000.00 at present.
[
R124 468.00
]
In
Mthimkhulu
v Minister of Law and Order
1993
(3) SA 432
(ECD) a 26 year old male with limited education was
detained for 144 days. An amount of R 40 000.00 was awarded
which translates
to R132 000.00 [
R181,247.00
]
at present.
In
Manase v Minister of Safety and Security
2003 (1) SA 567
(CKHC) a 65 year old grandfather was detained for 49 days. R90 000.00
[
R204,162.00
] was awarded which translates to R137 0000.00 at
present.
In
Minister
of Justice v Hoffmeyer
1993
(3) SA 121
(AD) he was detained for 5 months. R50 000.00 was
awarded which translates to R165 000.00 [
R226,558.00
]
today.”
The current value of
the award is
R2 500 000.00
.
61.2 In the
unreported judgment of
Van
Alphen v The Minister of Safety and Security
,
[10]
the plaintiff sued the defendant for unlawful arrest and detention
and malicious prosecution. The plaintiff had been arrested on
19
April 2006 on a charge of allegedly conspiring or attempting to aid
and abet another to escape from lawful custody. The plaintiff
was
taken to court on the same day and kept in the holding cells. He was
later released on R2 000.00 bail. The court (per
Lopes J)
awarded the plaintiff damages in the sum of R200 000.00 made up
as follows: R75 000.00 for wrongful arrest,
R75 000.00 for
malicious prosecution and R50 000.00 for
iniuria
.
This judgment was delivered on 31 May 2011. Present day value is
R295,000.00
.
61.3 In the
unreported case of
Borain
and another v Minister of Safety and Security
,
[11]
the two plaintiffs were arrested and detained at the holding cells of
the Hillcrest Police Station from 10h00 until their release
from
custody at approximately 22h00 on 5 September 2008. The plaintiffs
alleged that during their arrest and detention, they suffered
emotional distress, embarrassment and public humiliation and were
unable to attend to their work-related responsibilities. The
Court
per Murugasen J (as she then was) stated as follows:
“
[57]
Relevant facts in this matter are the age of the plaintiffs, the
circumstances, nature and duration of their arrest, the conditions
under which they were detained, their frustrated attempts to be
released on bail, their professional standing and the conduct of
the
police towards them.
[58]
In
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) on appeal the Supreme Court held that R90 000
[present day: R177,225] [
R186,141.00
]
was an appropriate award in respect of a 63 year old man who had been
unlawfully arrested and detained for 5 days albeit 24 hours
was in
custody and the remaining period under police guard in hospital.
[59]
In
Rudolph
v Minister of Safety and Security
2009 (5) SA 94
(SCA) the court held on appeal held that an award of
R100 000 [present day :
R161,629
]
for general damages was appropriate when the appellants were
unlawfully arrested and detained for 3 days and 4 nights and
subjected
to humiliation and under extremely unhygienic conditions.
[60]
In
Minister
of Safety and Security v Kruger
2011 (1) SACR 529
SCA the court held “that the police have a
duty to carry out policing in the ordinary way. They have no business
setting
out an arrest into a showpiece”. The suspect was shown
in a television broadcast being handcuffed and led to a police
vehicle.
The respondent was awarded R50 000 [present day:
R73,767.00
]
for unlawful arrest and detention and R20 000 [
R
29,507.00
]
for
iniuria.
[61]
In
Minister
of Safety and Security v Tyulu
2009 (2) SACR 282
SCA the court found that although the detention was
for a short period, there were aggravating factors: the arrestee was
a magistrate
arrested by people with whom he normally worked; he was
manhandled and dragged into a police vehicle; he was taken to the
scene
of a motor collision and made out to be a criminal; he was
arrested for an improper motive. As a man of considerable standing in
the community he must therefore have been severely embarrassed,
humiliation and shock and concomitant anguish and stress. He was
awarded R15 000 [
R24,224.00
].
[62]
Having evaluated the relevant facts in the light of the comparable
cases and the Classified Listing of Inflation Adjusted Awards
as set
out in the
Quantum Handbook
2011, I am of the view that a fair
and appropriate award of general damages for the unlawful arrest and
detention of the plaintiffs
in an amount of R40 000 each.”
Present day value
R59,000.00
.
61.4 In
Khumalo
v The Minister of Safety and Security
,
[12]
the plaintiff was charged inter alia, with obstruction of justice and
detained overnight at the Berea Police Station he was released
on the
following morning on bail. The court (per Gorven J) awarded the
plaintiff the sum of R50 000.00 (
R59,556.00
)
for his unlawful detention.
61.5 In
Mkwati
v The Minister of Police
,
[13]
the plaintiff was arrested on 29 April 2013 and detained. He was
released on 30 May 2013 after he had been charged with robbery
with
aggravating circumstances. Plaintiff claimed damages for his unlawful
arrest and detention. He was in Standard 8 at the time.
The following
was stated in paragraphs 5 to 7 of the judgment (references omitted):
‘
[5]
In pursuit of the claim, the plaintiff testified that on 29 April
2013 whilst walking back from a school meeting he was arrested
and
put in the back of a canopied police van with his arms handcuffed
from the back. The van was driven in a rough manner, causing
the
plaintiff to lose balance and, from time to time, to be thrown around
and sometimes hit himself against the van’s body
panel. When he
wanted to know why he had been arrested, the police said that they
were looking for his brother, who was eventually
apprehended and also
put into the back of the van.
[6]
The handcuffs were only removed from the plaintiff upon arrival at
Ngqeleni Police Station. He was detained in a filthy cell
and
subjected to torture by cell inmates he found already there. The
blanket he was supplied with was dusty. At times the blanket
would be
snatched from him, and he would end up leaning against the wall for
the duration of the night for warmth. The mattresses
they were
supplied with were also filthy. The cell toilet which was within view
and proximate was blocked, causing an unbearable
stench. Because of
the stench that pervaded the cell, he lost appetite and hardly ate.
It occurred that an inmate would relieve
himself whilst meals were
being partaken of. The cell was not sufficiently ventilated, despite
the fact that the inmates would
smoke dagga and tobacco. At no point
were the cells ever cleaned. When being supplied with food (morvite
porridge in a plastic
container), the police official concerned would
simply open the cell door and throw the food on the floor without
even entering
the cell. At the time of his arrest and detention the
plaintiff had been doing standard 8. He could not attend school for
the duration
of the detention.
[7]
It emerged during cross-examination that the plaintiff was
incarcerated at Ngqeleni Police Station for five days, whereafter
he
was transferred to Wellington Correctional Centre, Mthatha to await
his trial, upon his first appearance in court. No testimony
was given
of the conditions that prevailed at Wellington Correctional Centre,
hence the Plaintiff was released after spending another
eighteen
days.’
The following was
stated by the court (per Mbenenge JP) at paragraphs 17 to 20 of the
judgment (footnotes omitted):
‘
[17]
Courts have been warned to be wary of the primary purpose in the
assessment of damages for unlawful arrest and detention which
is not
to enrich the aggrieved party but to offer him or her some much
needed
solatium
for his or her injured feelings, but at the same time to be astute in
ensuring that the awards they make reflect the importance
of the
right to personal liberty and the seriousness with which any
arbitrary deprivation of personal liberty is viewed in our
law.
[18]
It is also incumbent on me to give heed to the principle recently
enunciated by the Supreme Court of Appeal that the amount
of the
award is not susceptible to a precise calculation; it is arrived at
in the exercise of a broad discretion. In
Phillip
v Minister of Police and Another
it was observed, in relation whether the court should calculate the
award on a daily tariff or a single all-inclusive award, that
the
nature of the compensation and the inherent variables applicable in
each case would be minimised by trying to place an average
daily
tariff on such determination. The court went on to state that “[t]he
fact that each case must be considered on its
own merits militates
against a so-called average flat rate per day” and that a
“single all-inclusive award would appropriately
address and
express all the factors to be considered.”
[19]
The circumstances surrounding the Plaintiff’s arrest,
especially
en
route
to the police station were quite an ordeal. The detention at Ngqeleni
Police Station, under squalid circumstances, was inhumane
and
degrading in the extreme. The subsequent detention at the Wellington
Correctional Centre does not seem to have been beset by
the woes that
prevailed at Ngqeleni, as indeed the plaintiff said nothing anent
thereto in his testimony. However, even during
that lengthy period,
the plaintiff was deprived of his liberty and separated from friends
and family.
[20]
Having regard to all the above as also previous awards, including
those made to
Mtola v Minister of Police and Nel v Minister of
Police
, a fair and reasonable award in the circumstances of this
case is R 560 000.00.’
Judgment was
delivered in January 2018.
61.6 In
Manase v
Minister of Safety and Security and Another
2003 (1) SA 567
(CkH)
the plaintiff, a sixty-five year old businessman, had been arrested
for murder and detained for a total of forty-nine days.
All charges
against the plaintiff were later withdrawn in the High Court. At
paragraphs 27 to 29 the Court said the following:
‘
[27]
The Court takes a serious view of the malicious arrest and detention
of the plaintiff. He was at the time 65 years old, married,
a
grandfather and a successful businessman, residing permanently in
Keiskammahoek. Not only had he never been in any trouble with
the law
before, but he must have also have been respected in the small
village where he lived and conducted his business. The serenity
of
his life was obviously shattered by the arrest and, as he testified,
the detention proved to be a traumatic experience. He was
detained
for a lengthy period – 49 days – during which time he had
to share a cell with criminals. Due to his arrest
and detention he
lost the esteem not only of the people in Keiskammahoek, but also of
his business associates.
[28]
Mr Bloem has referred to certain cases which, with respect, are not
apposite to the question of damages in this case. The Court
has
traced the undermentioned three cases which could be of some
assistance to it.
Thandi
v Minister of Law and Order
1991
(1) SA 702
(E): the plaintiff, a 37-year-old organiser of the General
Workers Union, was wrongfully arrested by the South African Police on
17 August 1983 and handed to the Ciskeian Police, who detained him
until 14 October 1983 (59 days). He was awarded general damages
of
R22 000 [
R124,468.00
].
Mthimkhulu
and Another v Minister of Law and order
1993
(3) SA 432
(E): The two plaintiffs were arrested unlawfully by the
police, charged before a magistrate and detained until their
acquittal,
144 days later. They were each awarded R40 000
[
R181,246.00
]
for the deprivation of their personal liberty, and R4 000
[
R18,124.60
]
for malicious prosecution.
Tobani
v Minister of Correctional Services NO
[2000]
2 B All SA 318 (SE): The plaintiff was detained in the St Albans
Prison, Port Elizabeth, under an order of court which expired
on 8
July 1998. When his name was called so that he could be taken to
court that day, he did not respond. He was therefore unlawfully
detained in the prison until his release on 17 February 1999, ie for
a period of seven months. The Court took into account that
the
plaintiff did not respond to his name being called, and also did not
complain to the prison authorities that he was being wrongfully
detained. He was awarded R50 000 [
R138,524.00
]
general damages for unlawful detention.
[29]
The Court is of the opinion that the malicious arrest and detention
were the main wrongful acts committed against the plaintiff.
The
malicious prosecution was a natural corollary to the previous acts.
After careful consideration of all the facts, and especially
the
hardship, humiliation and indignity suffered by the plaintiff, and
after considering the abovementioned cases, the Court is
of the
opinion that an award of general damages in the sum of R100 000
will be fair and just in this case. R90 000 of
this amount will
be allocated to the claim for malicious prosecution, And R10 000
to the claim for malicious prosecution.
In addition an award of
R21 906 will be made for special damages arising from the
malicious prosecution, being the admitted
legal expenses paid by the
plaintiff in respect of his criminal case.’
The present day
value of R90,000.00 is
R216,000.00
.
61.7 In
Syed
v Metaf Limited t/a Metro Cash and Carry and another
,
[14]
the plaintiff, a thirty-eight year old man was wrongfully and
unlawfully arrested by members of the SAPS on 2 December 2005 and
kept in police custody. He was released on bail on 6 December 2005.
The plaintiff also sued for malicious prosecution. In assessing
the
plaintiff’s damages the Court stated that whilst no two cases
are alike, guidance in the assessment of an appropriate
award for
general damages can be obtained by comparison of factors in different
cases and referred to the various volumes of Corbett
and Honey (
The
Quantum of Damages in Bodily and Fatal Injury Cases
(Juta)) and referred to the following cases (footnotes omitted):
“
[79]
In HOCO v MTEKWANA the plaintiff and his minor child were arrested in
Port Elizabeth and detained for seven days before being
transported
to Cape Town. No shower or bathing facilities had been made available
to the plaintiff. The award of R80 000.00
for general damages in
2010 has a present value of R110 000.00 [
R123,986.00
].
[80]
In BHENGU v MINISTER OF SAFTEY AND SECURITY the plaintiff was a
forty-seven year old owner of a taxi business who was detained
for
seven days in a cell with hardened criminals who had a wish to
extract revenge on him. The award of R130 000.00 made for
general damages in 2010 has a present value of R178 000.00
[
R201,447.00
].
[81]
In FUBESI v MINISTER OF SAFETY AND SECURITY the plaintiff was an
eighteen year old who was detained for, in effect, four days
in a
crowded cell where he was very scared. The award of R80 000.00
made for general damages in 2010 has a present value of
R110 000.00
[
present
day:
R123,986.00
].
[82]
In VEN DER MERWE v MINISTER OF SAFETY AND SECURITY the plaintiff, who
was a builder and the owner of a coffee shop in Grahamstown,
was
arrested and detained on a Friday. He was incarcerated in appalling
conditions and was assaulted. He was released on the following
Monday, only to be shunned by members of his church community. A
pre-existing condition of depression was aggravated by his detention
and he was unable to manage his business properly thereafter, leading
to its closure. The award of R120 000.000 made for general
damages in 2011 has a present value of R157 000.00 [present day:
R177,042.00
].
[83]
In KOTSWANA v MINISTER OF SAFETY AND SECURITY the plaintiff, who was
thirty-four year old married man, was detained for eighty-four
hours
in conditions which were unpleasant and unhygienic. Although he was
afraid of those with whom he had been detained he was
not let out of
the cell. The award of R110 000.00 made for general damages in
2012 has a present value of R 136 000.00
[present day:
R153,723.00
].
[84]
In MHLABENI v MINISTER OF SAFETY AND SECURITY the plaintiff who was a
twenty-nine year old male, was assaulted and detained
in a smelly
cell with an open toilet along with twelve other persons. After five
court appearances the charges laid against him
were withdrawn. The
award of R70 000.00 (R60 000.00 for the arrest and
detention and R10 000.00 for the malicious
prosecution) made for
general damages in 2012 has a present value of R74 000.00
[present day:
R97,824.00
].
[85]
In my view, having regard to the comparable awards to which reference
has been made, on the facts of this matter excluding
the development
of the post-traumatic stress disorder, an appropriate award for
damages would have been R150 000.00 [present
day
:
R232,473.00
].
However, having found that the plaintiff has established the required
causative links between the defendant’s wrongful
conduct and
the plaintiff’s post-traumatic stress disorder, it is necessary
that the award for general damages be increased
to compensate the
plaintiff accordingly.
[86]
In THE ROAD ACCIDENT FUND v RUTH F.S. DRAGHOENDER the plaintiff, a
forty-seven year old woman, suffered emotional shock, trauma
and
post-traumatic stress disorder which rendered her permanently unable
to earn an income after witnessing the death of her son.
The award of
R80 000.00 made for general damages in 2007, which was confirmed
on appeal, has a present value of R147 000.00
[present day:
R154,470.00
].
[87]
In KRITZINGER AND KRITZINGER v RAF the plaintiff witnessed the death
of his two daughters as a result of which he suffered
from a
post-traumatic stress disorder and chronic stress disorder with
flashbacks and nightmares. He became emotionally withdrawn
and
avoided social functions and churches. He also suffered from
headaches on a daily basis from a sleep disorder. The award of
R150 000.00 made for general damages in 2009 has a present value
of R215 000.00 [present day:
R242,443.00
].
[88]
In LETT AND ANOTHER v MINISTER OF SAFETY AND SECURITY AND ANOTHER a
child and mother witnessed the shooting of his sister and
her
daughter. The child suffered a major depressive disorder, dysthymic
disorder and chronic post-traumatic stress disorder requiring
counselling and anti-depressant medication. The award of R100 000.00
made for the general damages in 2011 has a present value
of
R130 000.00 [
R147,535.00
].
The mother suffered a major depressive disorder, dysthymic disorder,
a major depressive episode, panic disorder with agoraphobia,
chronic
post-traumatic stress disorder and a generalised anxiety disorder
requiring psychological and psychiatric treatment. The
award of
R120 000.00 made for general damages in 2011 has a present value
of R157 000.00 [present day:
R177,091.00
].
[89]
In MAART v MINISTER OF POLICE it was established that as a result of
witnessing the shooting of her son the plaintiff suffered
chronic and
severe post-traumatic stress disorder, a major depressive disorder
and psychosis with a poor prognosis, all of which
made her
unemployable. The award of R200 000.00 made for general damages
in 2013 has a present value of R234 000.00 [present
day
:
R264,329.00
].
[90]
In comparing the awards made in the matters to which I have referred
to a notional award for general damages in respect of
the
psychological and emotional sequelae in the present matter, I have
identified factors which are common to all. I have also
taken into
account factors that differ, predominantly the finding made in this
matter that the plaintiff’s post-traumatic
stress disorder is
treatable with a conservatively positive prognosis for recovery. In
my view, taking all the relevant factors
into consideration, an
appropriate award for general damages in respect of the plaintiff’s
psychological and emotional sequelae
flowing from the unlawful arrest
and detention and malicious prosecution would be R150 000.00
[
R242,443.00
].
[91]
It is desirable that a single award for general damages be made to
ensure consistency between the plaintiff’s particulars
of claim
and the resultant order. A combination of the two main elements of
the plaintiff’s claim for general damages results
in an award
of R300 000.00.’
Present day value
R336,000.00
.
61.8 In
Vuyisa
Mgele v The Minister of Police and Others
[15]
the plaintiff claimed damages for wrongful arrest, wrongful
detention, torture, humiliation, degradation and
contumelia
and pain and suffering. The defendant failed to plead after a notice
of bar had been served. The plaintiff then set the matter
down for
default judgment. According to the particulars of claim, the police
arrested and assaulted him at his home on 18 November
2010. They were
not in possession of a warrant of arrest. In particular, the police
attempted to suffocate him with a refuse bag.
Thereafter he was
detained for four days. He sustained various injuries all over his
body. The court after referring to a number
of other cases awarded
the following damages: R100 000.00 for unlawful arrest and
R150 000.00 for unlawful detention
and R150 000.00 for
contumelia
,
pain and suffering. The total damages of R400 000.00 equates to
R476 545.00
today.
[62]
Turning to the matter at hand, a case which is very similar to that
of the present plaintiffs in terms of the length of detention
is the
matter of
Zealand
v Minister of Justice and Constitutional Development and another
,
supra
,
in which the plaintiffs who had several previous convictions, were
eventually sentenced on 28 September 1998 to an effective sentence
of
18 years imprisonment on a charge of murder. The convictions and
sentence were set aside on appeal on 23 August 1999. However,
due to
a failure on the part of the registrar of the Grahamstown High Court
to issue a liberation warrant following upon the success
of his
appeal, the plaintiff remained in custody as a sentenced prisoner and
was only released on 9 December 2004. When the error
on the part of
the registrar was discovered he was already in unlawful detention for
an effective period of four (4) years and
10 months. The general
damages claimed on his behalf was the sum of R10 000 000.00.
The award made by the trial court
(Van der Byl AJ) in 2008 was the
sum of R2 000 000.00, the current value being
R3 233 000-00
.
[63]
The general damages of R10 000 000.00 claimed in
Zealand
constituted damages for unlawful detention, loss of freedom and
amenities of life, pain, suffering, humiliation and
contumelia
.
The prison conditions to which Mr Zealand was subjected to as a
sentenced prisoner were alluded to by the learned Judge as
follows:
[16]
‘
Whilst in
prison, particularly, during the period of his unlawful detention, he
joined one of the prison gangs, namely the “26”
gang. The
circumstances under which and reasons for joining the gang are not
quite clear from his evidence. At first he said he
had done that to
protect himself, but later in his examination-in-chief indicated that
he had done that out of his own choice.
In order to become a member
he had, as a prerequisite for membership, to assault a co-prisoner in
the dining hall. On that occasion
he struck his co-prisoner with a
tin mug on the head. Later, apparently on the instructions from gang
members with senior ranks,
he stabbed a co-prisoner with a sharpened
ear of a tin mug in order to be promoted to a higher rank in the
gang, in his case to
sergeant.
Whilst in prison he
acquired a number of tattoos all over his body, but he was unable to
say whether he acquired the tattoos before
or after he was
transferred from Medium A to Maximum Security. He, however, indicated
that he acquired the tattoos before he joined
the gang and acquired
them, or some of them, out of his own choice sometimes to kill time.
Furthermore he
testified on the difference in privileges and treatment of awaiting
trial prisoners as opposed to privileges and
treatment of sentenced
prisoners.’
[64]
It is noteworthy that the conditions experienced by Mr Zealand are in
some ways very similar to what the plaintiffs herein
were subjected
to. However, I need not dwell on these conditions as they have been
adequately dealt with earlier on.
[65]
In light of the factual situation prevailing herein, the nature of
the evidence adduced by both plaintiffs, the regard to awards
in
previous cases, the unprecedented duration of the detention and the
huge injustice done to both plaintiffs and without in any
way trying
to punish the defendants for the wrongs committed by their servants
herein, I consider that a fair and reasonable amount
for
non-patrimonial damages should be the sum of R3.5 million for each
plaintiff.
[66]
With regard to the plaintiffs’ claims in respect of special
damages, I intend awarding each of them the sum of R10 800.00
for psychotherapy/psychological counselling. This is based on 12
sessions at the rate of R900-00 per session, using the figures
provided by Mr Willows.
[67]
As for their claims for loss of earnings are concerned, for reasons
already set out above, I intend awarding them damages for
past loss
of earnings only. These damages are based on unskilled earnings of
R2 150-00 per month over a period of six years
and 11 months.
This amounts to R178 450.00. While the defendants have suggested
a contingency deduction of 25% I believe that
a deduction of 20% will
suffice. The nett result is therefore the sum of R142 760.00 for
each plaintiff.
Summary
of award
[68]
First plaintiff:
Damages
for non-patrimonial loss
R3 500 000.00
Special
damages for:
(a)
Psychological
counselling
R 10 800.00
(b)
Past
loss of earnings
R 142 760.00
____________
Total
damages
R3 653 560.00
Second plaintiff:
Damage for
non-patrimonial loss
R1 500 000.00
Special damages for:
(a)
Psychological
counselling
R 10 800.00
(b)
Past
loss of earnings
R 142 760.00
____________
Total
damages
R3 653 560.00
Open
tender and costs
[69]
It is common cause that by notice dated 17 May 2018 the defendants
formally admitted liability herein. At the same time they
made an
unconditional offer to pay each plaintiff the sum of R3 833 429.00
(three million eight hundred and thirty three
thousand four hundred
and twenty nine rand) in full and final settlement of the plaintiffs’
claims. The defendants further
tendered to pay the High Court costs
of both plaintiffs to date of the tender on a party and party scale.
This offer was effectively
rejected by the plaintiffs by the
commencement of the trial on 28 May 2018. It is apparent that the
damages awarded fall by me
short of the amount tendered by the
defendants on 17 May 2018. The resultant consequence for the
plaintiffs is that they are now
liable for the defendants’
costs of the trial which ran from 22-30 May 2018 and finalised on 5
June 2018 when the matter
was fully argued. Regrettably for the
plaintiffs this is the risk they ran when they decided to reject the
defendants’ offer.
Order
[70]
In the result, I make the following orders:
70.1 The
defendants are ordered to pay to each plaintiff the sum of
R3 653 560.00.
70.2 The
defendants are ordered to pay interest on the above amount at the
prescribed rate from a date fourteen (14)
days after date of judgment
to date of payment.
70.3 The
first and second plaintiffs are ordered, jointly and severally, to
pay the defendants’ trial costs for
27, 28 and 29 May 2018 and
5 June 2018, such costs to include the costs of two counsel.
70.4 The
defendants are ordered, jointly and severally, to pay the first and
second plaintiffs costs of the action from
date of issue of summons
up to and including 25 May 2018, such costs are to be paid on a party
and party scale and are to include
the costs of senior counsel as
well as the plaintiffs’ actuary (report only) but will exclude
all costs associated with the
experts, Mr Clive Willows and Professor
Joey Buitendach.
________________
SEEGOBIN
J
APPEARANCES
Date
of Hearing
: 27, 28 and 29 May 2018 and 05 June
2018
Date
of Judgment
: 15 August 2018
Counsel
for Plaintiff : Adv. Y Moodley SC
Instructed
by
: Silvia Da Silva
& Associates
Counsel
for Defendant : Adv. Hemraj SC (assisted by Adv. Bedderson)
Instructed
by
: State Attorney
Kwa-Zulu Natal
[1]
2009 (2) SA 282
(SCA) para 26.
[2]
1954 (3) SA 120
(N) at 130F.
[3]
At para 14.
[4]
Langa CJ in Zealand v Minister
for Justice and Constitutional Development and another
[2008] ZACC 3
;
2008 (2) SACR
1
(CC) para 24.
[5]
[2018] ZAECMHC 2 para 18. See
also
Alves v Lom
Business Solutions (Pty) Ltd and another
2012 (1) SA 399
(GSJ) in which Willis J (as he then was) said the
following ‘[36] ……The question arises as to
whether there
should be a ‘
per
diem rate
’ in
cases such as this would be inappropriate. It would be too formulaic
to do justice in different cases. As I pointed
out in
Mvu
v Minister of Safety and Security
,
views as to what may be an appropriate award in a particular set of
circumstances may differ quite markedly from person to person’
(footnotes omitted).
[6]
1957 (3) SA 284
(N) at 287E-F.
[7]
[2009] JOL 23423
(SE) para 13.
[8]
2017(2) SACR 332 (SCA) paras 20,
21 and 22. See also:
Syed
v Metaf Limited t/a Metro Cash and Carry
[2016] ZAECGHC 38 .
[9]
[2014] ZAK Z PHC Case No.
10386/2009 (unreported) Kwa-Zulu Natal Division, Pietermaritzburg,
date
14 March 2014.
[10]
[2011] ZAKZDHC 25;
[2011] JOL
27312
(KZD) (unreported) Case No. 8245/07 dated 31 May 2011
[11]
[2011] ZAKZDHC 53 (unreported)
Case No. 16735/08, Kwa-Zulu Natal Division, Durban, dated 28
November 2001.
[12]
[2015] ZAKZDHC 48 (unreported0
Case No. 458/2010, KwaZulu Natal Division, Durban, dated 4 June 2015
[13]
[2018] ZAECMHC 2 (unreported)
Case No. 2902/2013, Eastern Cape High Court, Mthatha, dated 23
January 2018
[14]
[2016] ZAECGHC 38 (unreported)
Case No. 4095/2009, Eastern Cape High Court, Grahamstown, dated 31
May 2016
[15]
[2015] ZAECMHC 70 –
(unreported) Case No. 1257/2011, Eastern Cape High Court, Mthatha,
dated 6 October 2015
[16]
See the High Court judgment at
para 15 at page 22.