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[2018] ZAECMHC 74
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Sofika v Minister of Police (330/2/12) [2018] ZAECMHC 74 (31 July 2018)

IN THE HIGH COURT OF
SOUTH AFRICA
{EASTERN
CAPE
LOCAL DIVISION, MTHATHA
}
Case
No.
330/2
/1
2
In
the matter between:
MICHAEL
VUYISA SOFIKA

Plaintiff
And
MINISTER
OF POLICE

Defendant
JUDGMENT
T
ONI
AJ
Introduction
[1]
The plaintiff seeks payment of R850 000.00 for damages he allegedly
suffered consequent to his arrest, assault and detention
by members
of the South Africa Police Service (SAPS) interest on the said amount
and costs. Of suit.  The claim is premised
on vicarious
liability, it being alleged that the perpetrators of the alleged
unlawful acts were at the time employed by the defendant
and
committed the alleged unlawful acts during the course of their
employment and whilst in the execution of their duties.
The
Pleadings
[2]
In the particulars of claim attached to the summons (the first
particulars of claim) the plaintiff alleges that on 6 January
2011
and at Madeira Street, next to the Market, Mthatha, he was arrested
by Constable Mhlonitshwa and other members of the South
African
Police Service whose names are unknown to him.  Consequent to
his arrest, the plaintiff was detained at Madeira police
station for
several days and was later transferred to Ngangelizwe police station
where he was further detained until released on
bail by the court on
3 February 2012.
[3]
As a result of the unlawful and wrongful arrest and detention, so the
plaintiff continues,
he suffered damages amounting to R400 000.00,
R200 000.00 whereof is for wrongful and unlawful arrest and detention
and R200 000.00
is for humiliation, degradation and
contumelia
.
[3]
The particulars of claim further state that on the date of his
arrest, the plaintiff was assaulted by the said Constable
Mhlonitshwa
and / or any member of the South African Police Service whose whose
names are unknown to him; the alleged assault was
inflicted by
clapping the plaintiff with open hands on the face and back; by
hitting the plaintiff with fists on the head and all
over the body
and by kicking the plaintiff on the head and all over the body with
booted feet until he fell down.  He was
kicked continuously
whilst on the ground and was suffocated with black plastic which was
put on his head to cover his face; he
was further assaulted when his
head was covered with the black plastic.
[5]
Consequent to the alleged assault, the plaintiff allegedly sustained
injuries on his left thigh, wrist and head as a result
whereof the he
suffered damages in the sum of R450 000.00 being an amount of R150
000.00 for general damages, R150 000.00 for future
medical expenses
and R150 000.00 for pain and suffering.
[6]
The action is defended and on three occasions after being served with
a notice to
defend, the plaintiff sought to amend the summons.
The first amendment relates to paragraphs 8.1 and 8.2 of the
particulars
of claim and there being no objection, the amended
particulars of claim were filed.  From the reading of the
particulars of
claim, nothing was amended, the paragraphs sought to
be amended look precisely the same, word for word, with the amending
paragraphs.
Nothing having been amended at all, this brings a
question mark on the object of the purported amendment.  The
only probable
inference to be drawn is that the plaintiff’s
representatives did not apply their mind before seeking the
amendment.
[7]
The second amendment relates only to the date of the alleged
arrest
and there being no objection, the amendment was effected..
The third amendment only sought to substitute the words, “
injured
on the left thigh”
by the words, “
injured on the
right thigh”
and there being no objection, the amendment
was effected.  .
[8]
During his submissions at the hearing, Counsel for the
plaintiff
could not proffer any cogent reason for not effecting the
aforesaid amendments at the same time.  Correctly so, in my
view,
he conceded that these piecemeal amendments had the undesirable
effect of increasing the costs.  The shoddy manner in which

these amendments had been effected will be a matter for consideration
when dealing with the issue of the costs.
[9]
On 22 October 2014, approximately two years and 5 (five) months after
the summons was issued, the defendant filed its
plea.  Despite
the plea having been served on the plaintiff’s attorneys on 19
April 2013, it was filed approximately
a year and six months later.
Typically, the tardy manner in which this matter had been conducted
is symptomatic of justice
delayed, justice denied and is not
laudable.
[10]
In its defence, the defendant raised a special plea relating to the
plaintiff’s alleged
non-compliance with
section 3
(1) of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
and a plea over in terms whereof it denied liability,
without any amplification thereof. .
[11]
On 13 February 2018, approximately three
and odd years after pleadings were closed the defendant sought to
amend its plea.
Surprisingly, no amendment was effected,
despite there being no objection thereto.  No reference was made
by any of the parties
to this notice of intention to amend and the
court accordingly proceeded on the basis of the original plea.
[12]
The matter was then set down for hearing
and on the date of hearing the plaintiff was the only witness to
testify with the defendant
also calling only one witness, Constable
Tembelani Mhlonitshwa, to testify in is defence.
[13]
The matter proceeded with the plaintiff
adducing evidence first in keeping with
rule 39
(3) of the Rules of
the Superior Courts Practice on the basis of him bearing the onus to
prove the alleged assault.  However,
before the hearing
proceeded various concessions were made on behalf of both the
plaintiff and the defendant.  The plaintiff
abandoned all its
claims, save that of the assault.  The defendant abandoned its
special plea relative to the alleged failure
to comply with
section 3
(1) of the Institution of Legal Proceedings Against Certain Organs of
the States Act.
Issues
to be determined
[14]
At the commencement of the hearing the issues falling to be
determined
by
the court narrowed themselves to:
(a)
whether
the plaintiff was assaulted by members of the S
APS
;
and
(b)
in
the event of
a finding being in the affirmative
,
the quantum of
damages
to which the plaintiff is entitled.
The
Evidence
[15]
The plaintiff’s evidence is that on 6 January 2012 he was in
town when he received a telephone
call from his ex lover, Emihle,
“the Complainant”, asking him about his whereabouts. He
told her that he was next to
the Market, Mthatha, opposite the BP
Garage.  Whilst still at the same spot, the complainant arrived
in company of 4 (four)
police officers who told the complainant to
identify him.  The police officers then told him that he was
under arrest for
raping the complainant.  He was assaulted with
open hands for falling in love with a minor.  He was handcuffed
and he
fell down before being ‘dragged’ to Madeira police
station. Next to Madeira police station he was assaulted again and
he
once again fell down on his heard and got injured on his right leg.
His trousers was also torn out.
[16]
Whilst being assaulted at the police station, the complainant’s
mother was also assisting
the police in assaulting him and whilst
being dragged inside the police station he was told that he would
rather have fallen in
love with the complainant’s mother than
the minor.  He was then taken into a police van that was driven
through a gravel
road to Ngangelizwe police station.  He was
handcuffed and the driver of the police vehicle would maliciously
apply sharp
breaks and as a result he was pitched from side to side.
He was detained at Ngangelizwe police station and his attorney, Mr
Nolangeni
came.
[17]
The plaintiff did not know the names of the police officers who
allegedly arrested and assaulted
him, his evidence continued.
This is despite the fact that in his particulars of claim the
plaintiff avers that he was unlawfully
arrested and assaulted by
Constable Mhlonitshwa and other members of the South African Police
Service.  As a result of the
alleged assault he suffered
injuries on the head, right thigh, wrists and had pains in his penis
and testicles.  He was not
taken to the Doctor even though the
Magistrate had ordered that he be taken to the Doctor.  He was
taken back to the police
holding cells.  He was then taken to
Wellington prison where his injuries were recorded.
[18]
At Wellington a certain Inspector Wesley, “Wesley”,
looked at the Magistrate’s
instructions and instructed that he
be taken to the hospital.  However, Wesley took him out and
drove around town with him
without taking him to the Doctor.
Wesley was grumbling that the plaintiff also did not take his victim
to the Doctor after
enjoying raping her.  He was taken to the
Doctor only after his release on bail on 3 February 2012 and the
Doctor recorded
his injuries in the J88 and also made a report.
After the assault he was urinating blood.  There was also
swelling in
his head.  At the time he visited the Doctor the
scars in his wrists were still not healed.  The plaintiff
conceded under
cross examination that the Doctor who examined him may
not have recorded all the injuries he sustained but contended that he
was
injured.
[19]
The only injuries recorded in the J88 is 4 x 1.5 meters swelling in
the right thigh and
1.5 x 2.5 metres of wrist marks that had already
healed.  No injuries on the head, penis and scrotum or any other
part of
the body were recorded by the Doctor.  The plaintiff
conceded under cross examination that the Doctor who examined him may

not have recorded all the injuries he sustained but contended that he
was injured.
[20]
The conclusion recorded is soft tissue injuries which have not been
properly described
or located.  Even though it was not put in
dispute during evidence, the measurement of these injuries is queer
and seems to
be exaggerated.  According to the J88, the
plaintiff’s height is a mere 1.7 metres and for him to sustain
4 x 1.5 metres
swelling of the thigh and 1.5 x 2.5 metres marks on
the wrists is improbable.  These parts of a human body cannot be
that
long and injuries so recorded are disproportionate to the
plaintiff’s whole body height.
[21]
During cross examination the defendant’s Counsel, Mr Nqoko,
intimated that the injuries
sustained by the plaintiff did not result
from assault by the police, they were self created.  He put the
defendant’s
version to the plaintiff that the defendant will
deny that the police assaulted him and will come and testify that the
plaintiff
sustained no injuries during the arrest.  The above
intimation notwithstanding, the state did not call the arresting
officers
to testify and bolster the defendant’s version.
The matter died then and there, leaving the plaintiff’s version

largely undisputed.
[22]
The failure by the defendant to lead evidence challenging the
plaintiff’s testimony as
intimated above reminds me of the
purpose of cross-examination and the resultant failure to challenge
evidence summed up by the
Constitutional Court in
President of the
RSA v South African Rugby football Union
as quoted by Mbenenge JP
in
Mkwati v The Minister of Police
as follows:
“
The institution of
cross-examination not only constitutes a right, it also
imposes certain
obligation. As a general rule it is essential, when it is  intended
to suggest that a witness is not speaking
the truth on a particular
point, to direct the
witness’s attention to the fact by questions put in
cross-examination showing that the imputation is
intended to be made
and
to afford the witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending
his or her
character. If a point in dispute is left unchallenged and that the
unchallenged witness’s testimony is accepted
as correct. This
rule was enunciated by the House of Lords in Browne v Dunn and has
been adopted and consistently followed by our
courts.
[23]
Under cross examination, the plaintiff vehemently denied having been
suffocated with a black
plastic which was put on the plaintiff’s
head covering his face and that he was further assaulted when his
head was covered
with the black plastic as contended in paragraphs
10.4 and 10.5 of his own particulars of claim.  When this was
put to the
plaintiff by Mr Ngoqo, the plaintiff emphatically said: “
I
never said anything about the plastic except what I said in court.
I was never suffocated by plastic.  I do not know
that
”.
Disowning his own version makes the plaintiff’s case on this
aspect a little doubtful or at least the drafting
of his pleadings
somewhat questionable.
[24]
When called to testify, Constable Mhlonitshwa, testified that he was
not present during
the plaintiff’s arrest; the plaintiff was
handed to him for detention and he did not observe any injuries.
This is
how short the evidence of this witness was.  Under cross
examination he said he was not present when the plaintiff was
allegedly
arrested and assaulted and it was not put to him that he
was.  It is not known why this witness was called to testify in
the
first place as he had no knowledge relative to the gist of the
plaintiff’s claim..
Submissions
[25]
During his argument Mr Bembe, for the plaintiff, argued that the
defendant failed to gainsay
the plaintiff’s testimony and
therefore the plaintiff’s story has to be believed.  With
regard to the quantum
he further submitted that only prayers 2.1 and
2.3 have to be considered which is patrimonial damages and pain and
suffering.
However, when asked by the court, he later conceded
that these two prayers constitute the same aquilian action and that
the inclusion
of one is the exclusion of the other.  This then
left the court with a discretion to decide whether compensation in
the amount
of R150 000.00 for the alleged assault is fair and
reasonable, if the court ruled in favour of the plaintiff.  Mr
Bembe made
no submissions in relation to the costs.
[25]
Whilst Mr Ngoqo initially argued that the plaintiff has failed to
prove his case on a balance
of probabilities and that the plaintiff
has not made a case at all, he later conceded that the assault did
happen during the arrest
and that there is no evidence to gainsay the
plaintiff’s evidence.  He further conceded that the
plaintiff might have
suffered pain but such pain should not be
exaggerated.  Finally, he submitted that an amount of R15 000.00
for compensation
was sufficient and that the costs should be awarded
at the Magistrate’s Court scale.
[27]
The issue is whether the plaintiff has made a proper case for the
assault and, if so, whether
R150 000.00 is a fair and reasonable
compensation in relation to the injuries sustained during the
assault.
Findings
[28]
I am faced with
two
mutually destructive versions and the court
should follow the
approach
adopted
in
National
Employers General Insurance Co. Ltd v Jagers
[1]
.
In this
matter, which is referred to by Mbenenge J (as he then was) in
Nel
v Minister of Police
[2]
,
Eksteen
AJP (as he then was)
said
:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged
by
adducing credible evidence to support the case of the party on whom
the onus rests. In a civil case the onus is

obviously not as heavy as it is in a criminal case, but nevertheless
where the onus rests on the plaintiff as in the
present
case, and where there are two mutually destructive stories, he can
only succeed if he satisfies the Court on a preponderance
of
probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced by the defendant
is
therefore false or mistaken and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh
up and test
the plaintiff’s allegations against the general probabilities.
The estimate of the credibility of a witness will
therefore be
inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours
the plaintiff,
then the Court will accept his version as being probably true. If,
however, the probabilities are evenly balanced
in the sense that they
do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can
only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s version
is false.
[29]
Having followed this approach, I find the principle stated by the
court in
Hodgkin
v Fourie
[3]
more appropriate.  In this case the court said:
“
At the close of
the case for one side upon whom the onus lies, the question which
the judicial officer has
to put himself is: Is there evidence on which a reasonable
man may find for that
side “.
[30]
If the evidence is not only not convincing but is actually found by
the trial court to be a fabrication,
then it is the evidence on which
a reasonable man would not find, and the court would be justified to
grant absolution.  In
this case the defendant has not adduced
evidence in rebuttal of the plaintiff’s evidence and therefore
the plaintiff’s
evidence of assault remains undisputed.
[31]
Mr Ngoqo conceded to this as much during his submissions.  It
is, therefore, more probable
from the evidence before the court than
not that the defendant was assaulted.  It should only be the
extent of injuries sustained
by the plaintiff that could be an
issue.  The evidence of Dr Mduna who examined the plaintiff is
not conclusive and may not
be of assistance to the court.
[32]
Clear from the plaintiff’s testimony is that he was assaulted,
I am not dissuaded by the minor injuries that the
plaintiff might
have suffered.  Assault is an unconstitutional and degrading
invasion of the bodily integrity of an individual
and deserves a
strongest possible form of censor by any court of law.  It is a
form of corporal punishment that need to be
discouraged by the courts
as it flies in the face of the Constitution.  Whilst police are
by law allowed to use minimum force
to effect arrest and subdue a
suspect in circumstances, for example, of resisting arrest, such
force was not justified in this
case.  No evidence was led at
all as to why the plaintiff was arrested in the first place.
Clearly the assault on the
plaintiff is
prima
facie
unlawful.
[33]
I am satisfied that the plaintiff has discharged the onus in line
with the reasoning of the court
in
Koster
Ko-öperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë
en Hawens
[4]
(supra)
and African Eagle Assurance Co Ltd v Cainer
[5]
,
as referred to in Nel (supra), where Coetzee J stated:
“
I
would merely stress, however, that when in such circumstances one
talks about a
plaintiff
having discharged the onus which rested upon him on a
balance of probabilities one really means that the Court
is satisfied
on a balance of probabilities that he was telling the truth and that
his version was therefore acceptable. It does
not seem to me to be
desirable for a Court first to consider the question of the
credibility of the witnesses as the trial Judge
did in the present
case, and then, having concluded that enquiry, to consider the
probabilities of the case, as though the two
aspects constitute
separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration of the probabilities
fails to indicate
where the truth probably lies, that recourse is had to an estimate of
relative credibility apart from the probabilities.”
[34]
What stands to be determined by the court is the damages suffered by
the plaintiff as a sequel to the injuries he sustained.
Quantum
of Damages
[35]
In assessing damages r
eference
to prior awards is a useful aid to assist a Court in determining what
would
be
a
fair and reasonable
compensation,
recourse being had to
the
specific circumstances of
each
case
.
The court considers the facts and the circumstances of the case, the
injuries sustained by the plaintiff, including their
nature,
permanence, severity and impact on the plaintiff’s life
[6]
.
However, e
ach
case must be determined on its own merits.
Nugent JA in
Minister
of Safety and Security v Seymour
[7]
states it aptly as follows:
“
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
”
.
[36]
The non-pecuniary nature of general damages makes
it difficult to assess with certainty an appropriate amount,
leaving
the court with a discretion to award an amount that it may deem
reasonable under the circumstances depending on the peculiar

circumstances of a particular case
[8]
.
In
Minister
of Police v Dhwati
[9]
the court reaffirmed that an assessment of
an
appropriate award of general damages is a discretionary matter and
has its objective to fairly and adequately compensate an injured

party
[10]
.
The court further stated in this case that the appellate court will
interfere with the award of the court
a
quo
where there has been an irregularity or a misdirection
[11]
which might sometimes appear from a court’s reasoning and in
other instances it might be inferred from a grossly excessive

award
[12]
.
[37]
In
Mogakane
v Minister of Police
[13]
,
Legodi JP made the following  observations:
“
There
is no fitted formula for the determination of the quantum of damages
obtainable
through the
actio iniuriarum.
Such a determination is in the
discretion
of
the Judge, who must determine the quantum by taking into account all
relevant
factors
and
circumstances
according to
what
is
just and
fair.
[38]
In this matter the court was not pointed to any authority that may be
used as a baseline for
its assessment of damages, leaving it with a
discretion to source relevant authorities, particularly those that
have similarities
to the present case.
[39]
In assessing quantum for general damages in
Fisa
v Minister of Police
[14]
,
Smith J found R300 000.00 to be appropriate as the damages were of a
serious nature (resulted in post traumatic stress) and had
a
long-lasting effect on the plaintiff.
[40]
In
Peterson
v Minister of Safety and Security
[15]
,
Plasket
J awarded R120 000 in respect of assault, to a plaintiff who had
been
assaulted
by having
pepper
spray
sprayed
into his face
,
dragged from his home in shorts
to be assaulted again at the police station holding cells.
[41]
In
Poswa v Minister of Safety and
Security
(115/08) [2011] ZAECPEHC 41
(29 September 2011), Beshe J awarded damages in the amount of
R170 000 to a plaintiff who developed
depression and
post-traumatic stress after being assaulted by police officers.
[42]
The court also considered the awards made by other jurisdictions in
similar cases of assault.
In
King
NO  v  Minister of Police
[16]
,
the plaintiff initiated an action against the Minister of Police for
damages suffered as a result of an assault upon her by members
of the
SAPS who used a stick or baton.  She was injured in full view of
members of the public and the media.  She sustained
abrasions on
her elbow, thigh, breast, chest, back, hands, arms, left eye,
haematomae on her left back, lacerations on the scalp,
the left eye
and lower leg, which required suturing.  She suffered headaches
for 18 months thereafter.  The Court regarded
the conduct of the
police officers as reprehensible and repulsive and ordered general
damages in the amount of R140 000.00.
[43]
In
Nkosi
v Minister of Safety and Security
[17]
the Plaintiff was awarded an amount of R100 000.00 in general damages
in consequence of an assault which resulted in a cut lip
and
tenderness to his testicles.
[44]
In
Bantu
v Minister of Police and another
[18]
the Plaintiff was awarded R80 000.00 for an assault, during which he
was
,
inter
alia
,
held
by his testicles.
Another
important case,
albeit,
distinguishable
from the one at hand is
the
unreported judgment of Nicholls J i
n
Sibanda and another v The Minister of Police and another
[19]
.
The
Plaintiff was charged and detained
for
a total of 17 days, 16 of which were spent
in
hospital
.
He was released on bail by the
court
.
Dr Dov E Gantz provided a medico-legal report and was called to
testify and confirmed injuries which were of a permanent
nature.
The distinction is that in this case
the
Plaintiff was shot in both legs
and
there
was evidence that the injury had a lasting effect on the Plaintiff’s
mobility
.
This is not the case in
hoc
casu
.
[45]
The case at hand is distinguishable from all the above cases in that
in the present case the
plaintiff’s injuries are not severe and
are not supported by any form of medical evidence.  The J88 form
completed by
Dr Mduna is fraught with irregularities and cannot be
relied upon.  This leaves the Court with no useful guide in its
assessment
of damages sustained by the plaintiff.  In his own
saying, the plaintiff sustained injuries on his right thigh and
wrist.
He also had pains in his penis and testicles, even
though no causal link was established between these pains and the
assault.
The only injuries recorded by Dr Mduna is
swelling in the right thigh and wrist marks that had already
healed.  No injuries on the head, penis and scrotum or any other

part of the body were recorded by the Doctor.
[46]
In argument, Mr Ngoqo submitted that an amount of R150 000.00 is too
excessive in relation to
the injuries sustained.  I agree with
him.  He suggested that R15 000.00 would be a fair and
reasonable compensation.
I disagree with him.
[47]
Having taken into consideration the evidence placed before court and
after analysing the peculiar circumstances of this
case, I come to a
conclusion that an amount of R23 000.00 is a fair and reasonable
compensation and this takes me to the next issue,
namely; that of the
costs.  As correctly observed by the learned Judge President in
Mogakane above:
“
It
is important to bear in mind that the primary purpose when assessing
damages is
not
to enrich the aggrieved party, but to offer some much-needed solatium
for his or
her
injured
f
eeling
s
[20]
”
Costs
[48]
The issue of costs in this matter cannot, in my view, be insulated
from the conduct of the parties
and the status of the pleadings in
general.  Rule 18 of the Rules regulates the manner in which
pleadings in general should
be  formulated. in that “
a
plaintiff suing for damages shall set them out in such a manner as
will enable the defendant reasonably to asses the quantum
thereof
”.
[21]
Rule 18 (4) further provides that:
“
18 (4)
Every pleading shall contain a clear and concise statement of
the material facts upon
which the pleader relies for his claim, defence or
answer to any pleading as
the case may be, with sufficient particularity
to enable the opposite
party to reply thereto”.
[49]
In
Molusi
& others v Voges N O & others
[22]
Nkabinde
J observed:
‘
The
purpose of pleadings is to define the issues for the other party and
the Court.  And it
is for the Court to adjudicate upon the disputes and
those disputes alone. Of
course, there are instances where the court may,
of its own accord (
mero
motu
), raise a question of law that emerges fully
from the evidence and is
necessary for the decision of the case as long as
its consideration on
appeal involves no unfairness to the other party
against
whom it is directed.
[50]
In
Minister
of Safety and Security v Slabbert
[23]
the Supreme Court of Appeal held:
“
A party has a duty
to allege in the pleadings the material facts upon
which it relies.  It
is impermissible for a plaintiff to plead a particular
case and seek to
establish a different case at the trial.  It is equally not
permissible for the trial
court to have recourse to issues falling outside
the pleadings when
deciding a case.”
[51]
I am of the view that, better advised, the plaintiff could have made
a proper choice of forum.
I also have serious reservations
about the status of the pleadings in this matter.  Traversing
the pleadings have been both
an eye sore and a tedious exercise.
The Plaintiff’s pleadings are not a model of clarity and good
draftsmanship and
the manner in which the plaintiff’s claim is
formulated leaves much to be desired.  Practitioners are
strongly advised
to consult with their clients properly before
advising them on their cause of action and the choice of appropriate
forum.
Otherwise this court will be inundated with and finds
itself adjudicating on a flurry of claims which should not have been
brought
before it in the first place.
[52]
This is one of those cases in which the court has to be meticulous in
crafting its order for
the costs.  Whilst a plaintiff cannot be
penalised for manifest slackness in the presentation of its case, the
defendant also
deserves protection from the costs incurred through
remissness on the part of the plaintiff’s legal
representatives.
In this regard I will disallow the costs
incurred through the unnecessary amendments which should have, in a
manner of speaking,
been done in one single short.
[53]
The above pertains to the costs caused by the first amendment
contained in pages 18 to 27 and the third amendment contained
in
pages 40 to 50 of the record.
Order
[54]
In the result, I grant the following order:
(a)
The
defendant is liable for
damages
suffered by the plaintiff
arising from
assault by members of the South African Police Service on 6 January
2012.
(b)
The defendant is directed to pay the plaintiff R
23
000.00
as and for
d
amages in respect of his
assault and
also interest on this amount at
the
prescribed
legal rate from a date 14
days from today to date of final payment.
(c)
The
defendant shall pay the plaintiff’s costs of suit on the
Magistrate’s
Court scale,
together with interest thereon at the
prescribed
legal
rate from
a
date 14 days after
alloc
a
tor
to the date of final payment.
These
costs           shall
exclude the costs caused by the amendment to the
plaintiff’s
particulars
of
claim contained in pages 18 to 27 and 40 to 50 of the record.
___________________________________
H.
S. TONI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the plaintiff

:

J. Bembe
Instructed
b
y

:         State Attorney
MTHATHA
Counsel
for the defendant
:                      Ngoqo
Instructed
by

:                     D.

N. Nolandeni & Associates
MTHATHA
HEARD
ON

:                      24

MAY 2018
DELIVERED
ON

:                      31

JULY 2018
[1]
1984 (4) SA 437
(A) at 440 E - G
[2]
Unreported Judgment of the East London Local Circuit Court under
case no. EL375/15(ECD775/15, delivered on 26 July 2016
[3]
1930 TPD (740) at 743
[4]
1974 (4) SA 420
T at 426
[5]
1980
(2) SA 234
W
[6]
See Mimi Margret Philanber v Minister of Safety & Security
(Unreported Judgment of North West High Court under case no.
473/2011
[7]
[2007]
1 All SA 558
(SCA) at 17:
[8]
See
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199; Klopper: The Law
of Third Party Compensation, 2
nd
ed, p 152-158
[9]
(20604/14)
[2016] ZASCA 6
(3044/2016) [2017] ZAGPPHC 817
[10]
S
ee
Protea Accident Fund v Lamb
1971 (1) SA 530
(A) at 534H-535A
;
Road
Accident Fund Marunga ZASCA 9144/2002)
[2003] ZASCA 19
;
2003 (5) SA
164
(SCA) para 23).
[11]
Minister
of Safety and Security v Scott & another ZASCA (969/2013)
[2014]
ZASCA 84
;
2014 (6) SA 1
(SCA) para 42
[12]
Minister
of Safety and Security v Kruger ZASCA (183/10)
[2011] ZASCA 7
;
2011
(1) SACR 529
(SCA) para 27
[13]
This is a judgment of the
South
Gauteng High Court
under c
ase
n
o.
50811
/
2011,
delivered on 24 May 2012.
[14]
An unreproted decision of the Eastern Vape Division - East London
(as it then was) under case no.
1263/2012
,
delivered on 26 April 2016
[15]
2009
6 QOD K6-1 (ECG)
[16]
2012
(6G3) QOD 11 (ECM
[17]
[2012]
JOL 29147 (GSJ)
[18]
[2015]
JOL 33018 (GJ)
[19]
(
2011/23229
)
[2012] ZAGPJHC 200
[20]
See also Mkwati above at par. 17
[21]
Rule 18 (10)
[22]
2016
(3) SA 370
(CC) para 28
[23]
[2010]
2 All SA 474
(SCA)