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[2017] ZAKZPHC 65
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Kumar and Another v Mpai (AR551/16) [2017] ZAKZPHC 65 (16 November 2017)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: AR 551/16
In the matter between:
MANILAL RAJENDRA KUMAR
FIRST APPELLANT
BLUE
SECURITY
SECOND APPELLANT
and
MAKHUPARETSI
MPAI
RESPONDENT
JUDGMENT
MNGADI AJ
[1]
The appellants appeal against the judgement of the additional
magistrate
of Durban (Mr V.M. Mvambo) granting judgment in favour of
the respondent for the payment of R45 0000 non-patrimonial general
damages
arising out of an assault on the respondent. The second
appellant is Blue Light Monitoring & Armed Response (Pty) Limited
a
private company registered and incorporated in terms of the company
laws of the Republic of South Africa, trading as Blue Security.
The
respondent, despite having been served with the necessary documents
and notices has, for reasons unknown to us, not taken part
in this
appeal.
[2]
The respondent instituted action in the magistrate's court against
the appellants claiming that the first appellant whilst he was
employed and acting in the course of his employment with the second
appellant assaulted him by hitting him with a firearm and hands
causing him certain injuries. As a result, he suffered damages
in the
sum of R100 000 for pain and suffering, cost of medication and legal
fees.
[3]
In the summons the respondent claimed that: 'the first appellant
assaulted him with a firearm and with his hands and his legs. The
assault caused him injuries recorded in the attached medical
report
(J88) to be lacerations in the facial area. The first appellant
intentionally assaulted him without asking him anything.
He acted
negligently and failed to exercise the skill and care required of a
trained security or reasonable man'.
[4]
The appellants in the plea admitted that there was an altercation
between the first appellant and the respondent; that the first
appellant struck the respondent in the face with a portable radio
but
he was justified in doing so in that the respondent had struck him
across the face and he was attempting to remove his firearm
holstered
on his hip and that his actions were necessary for his protection. At
the hearing, the appellants' legal representative
placed it on record
that the appellants were admitting that at all material times the
first appellant was in the employ of the
second appellant and he was
acting within the course and scope of his employment. It is trite
that it is lawful for any person
to use reasonable degree of force
for the protection of himself or any other person against any
unlawful use of force.
(Minister of Law and Order v Milne
1998(1)
SA 289 at 293A-C).
[5]
In the hearing before the magistrate, the respondent testified and
called Ms Chiliza (his girlfriend) as a witness. The appellants
called the first appellant, Ms Padayachee an employee of the second
appellant and one Dr Zeiciak an ear, nose and throat specialist (the
expert). The documents relied upon in the bundle of documents
were
the medical report (J88); a medical certificate by Doctor Sali; a
cover page of the police docket; the letter of demand; Blue
Security
alarm activity report; an e-mail from A Padayachee to B Jackson and
the Dr Zeiciak's report.
[6]
The respondent testified that he was a police officer. He was renting
a place in the premises where the incident took place. He arrived on
that morning with his girlfriend Ms Chiliza. He found the
landlord
outside in the premises. The landlord asked him why were the premises
filled with rubbish. He replied that he did not
know and he had not
been around. The landlord said that he will call security. He left
him and went to his room as it appeared
to him that they might have
an altercation. Thereafter the first appellant arrived. He was
driving a marked security vehicle and
he was in full security
uniform. The first appellant went and spoke to the landlord. The
landlord pointed at him. The first appellant
approached his room and
found him by the door and he asked him what was his problem. The
first appellant slapped him on his face.
He tried to block the blow
but he could not see clearly. When he opened his eyes, the first
appellant pulled out the firearm which
was holstered
in
his
bullet proof vest. He struck him with the butt of the firearm on his
face. He went back and went down on his knee. The first
appellant
kicked him on his back with a booted foot. He noticed that he was
bleeding from his face. He went inside the room and
he phoned the
police. The police arrived and they told the first appellant that he
(the respondent) was also a police officer.
The first appellant said
he did not know that he was a law officer and he apologized. He went
to the police station to open a case.
He was given a form to take to
hospital. He went to the hospital where he was treated and sutured on
his face.
[7]
The respondent testified that the first appellant had a firearm,
a
pepper spray, handcuffs and a two-way radio. The injuries left him
with permanent scars on his face. He could not go to work
for four
days and for two years he was in pain. He could not eat properly. He
and his girlfriend were from a friend they had
visited
the
previous day. There was no party and they did not drink alcohol.
Although the J88 recorded that he smelt of ethanol, he had
not taken
liquor that morning. He denied that when first appellant arrived he
(the respondent) was obviously under the influence
of liquor but
it
was the first appellant who was under the influence. He realized
that when the first appellant said he
did
not know what he was
doing and he was asking for forgiveness. He did not know that the
landlord had called security and reported
that a tenant had damaged
his car and the tenant was trying to attack him. He denied that he
had caused any damage to the landlord's
car and that he was trying to
attack the landlord. He stated that no case was opened against him.
[8]
The respondent testified that previously, they had had arguments
with
the landlord about dirt caused by the tenants. He was not focusing to
the first appellant and the landlord. He was in and
out of his room
attending to his own things. When he was assaulted he was on the
stoep in front of his room. He denied that he
slapped the first
appellant and he denied that he knocked the portable radio attached
to the bulletproof vest which fell to the
ground. He denied that he
picked up the portable radio and the first appellant snatched it from
his hand. He denied that whilst
the first appellant was holding the
portable radio in his right hand, he grabbed the bulletproof vest
with his left hand and with
his right hand tried to pull out the
pistol from its holster. He denied that the first appellant then put
his left hand over his
right arm to stop the removal of the weapon
and that the first appellant pushed out at him with the right hand
with a portable
radio to release from the grip and the maneuver
resulted in the portable radio striking him on his face and he fell.
He denied
that when the first appellant arrived he was standing
outside the front door speaking in a loud voice and in an aggressive
fashion
and using a vulgar language challenging the landlord and
saying what Blue Security will do. He denied that the first appellant
when he approached him initially, he said the landlord wanted him to
leave. He denied that his eyes were blood shot and his breath
had a
strong smell of alcohol. He insisted that when the first appellant
struck him with a firearm the first appellant was holding
the firearm
with the right hand. He admitted that the medical report (J88)
recorded four lacerations and it did not show any bruises
and in
conclusion, the J88 records that the findings are in keeping with
blunt force trauma. Although the letter of demand states
that he was
opening the door of his house when he was attacked, he was in fact
going in and out of his house at the time he was
attacked. By feeling
pain for two years, he meant being worried about the scars for two
years. He can't say how long it took feeling
physical pain from the
injuries. It took two weeks and the sutures were removed. He does not
know whether the scars can be removed
or not. He said the first
appellant is lying in saying he did not kick him in his back. The
first appellant first slapped him.
[9]
Zandile Chiliza testified that she was the girlfriend of the
respondent.
She was on maternity leave. On the day in question, they
arrived at about 9H00 and they found the landlord. She went into the
house
and the respondent was called by the landlord. She opened the
windows. The respondent left the landlord. He was taking things out
of the house and she heard a vehicle arriving in the premises. She
went to stand by the window. The first appellant alighted from
the
vehicle. He approached the landlord and he asked whether this was the
one or not. The landlord said yes. He left the landlord
and
approached the respondent who was in front of the house in the stoep.
The first appellant hit the respondent with an open hand.
The
respondent tried to ward off the blows. The first appellant took out
a firearm and hit him on his face with a firearm two or
three times.
The respondent fell to the ground. He thereafter kicked him on his
back. The respondent went to the house to fetch
a cellphone. He
phoned the police. The police arrived and they told them what
happened. The respondent did not fight back.
[10] Under cross-examination Ms
Chiliza testified as follows. She was still the girlfriend of the
respondent.
It must have been a mistake she did not say that she was
on maternity leave when she testified in chief. When they arrived the
landlord was in a vehicle which was parked in the yard. She did not
hear what the landlord said to the respondent. The respondent
was
collecting the dish and the bucket which were outside. She heard the
first appellant talking to the landlord but she did not
see the
landlord showing damage in the vehicle to the first appellant. She
could not hear the entire conversation between the landlord
and the
first appellant. She heard the first appellant saying is this the one
and there was no conversation. The stoep was about
two meters from
the window next to which she was standing. She did not hear the first
appellant saying to the respondent what was
the problem. The first
appellant hit the respondent with the left hand on the cheek. He then
took out a firearm with his right
hand. He hit him with the back of
the firearm two or three times. The respondent fell down and he
kicked him. The respondent was
not under the influence of liquor. He
did not have a strong smell of alcohol on his breath and he eyes were
not bloodshot.
[11]
Dr Zeiciak testified that he is an ear, nose and throat
specialist practicing as such and in private practice. He did not
examine
the respondent for the injuries sustained in the incident and
he has not had access to any records or photographs relating to the
injuries except the medical report (J88). He noticed that under
clinical findings it is recorded four deep lacerations in the
maxillary area. Deep lacerations mean penetration of the skin
surface. The first was in the right maxillary area, the second in
the
nasal area bridge, the third in the glabella area and the fourth on
the left forehead. The glabella area is the area between
the
eyebrows. The report under mental health records ‘pain’,
and under clinical evidence of drugs or alcohol ‘
yes’,
And there is an ethanol odor’. Ethanol is alcohol. It
records the last conclusion as' findings in keeping with blunt and
sharp
trauma’, which means findings are consistent with the
injury causing lacerations of the skin and blunt injuries with some
crushing of the tissue. Laceration is the cutting through the skin
and blunt trauma is the crushing of the surrounding tissue.
[12]
Dr Zeiciak testified that in his opinion the injuries
sustained, the manner in which they were sustained as testified to by
the
respondent and his witness and the instrument used, are
inconsistent. A heavy instrument used such as a butt of a gun wielded
in
a hammering manner would have caused more serious injury. A butt
of a firearm weighing about half a kilogram would probably cause
much
more of a trauma to deep tissue, causing damage to muscles,
subcutaneous tissue and tissue of muscles and probably bone. He
testified that the fact that the patient was not referred to X-rays
to determine whether there were any fractures to bones suggest
that
to the doctor the injuries did not seem severe. He opined that the
instrument which caused the injuries had some kind of a
sharp edge
going across the face. He would expect the pain to be moderate to
severe in the first week or two and after a month
diminish to mild.
It is a little bit too long to last for two years. Injury in the
cheek bone would initially probably cause pain
on chewing. The scars
of the injuries can look sometimes very ugly and need to be referred
to a plastic surgeon for correction.
The scarring on the face of the
respondent may be addressed through plastic surgery consisting of
excision of the scars and re-stitching
them. Under cross-examination
Dr Zeiciak testified that a person hit with the same object may
sustain different injuries depending
on the way the object is used,
and the force applied.
[13] Dr Zeiciak testified
that he could not rule out that a barrel of a gun was used. A person
having
consumed liquor the previous day can smell of liquor on the
following day. He does not think one blow could cause the four
lacerations,
due to the position of the scars, the one in the
glabella and the one on the forehead being about 30 cm apart; but if
one blow
was struck obliquely across the front of the face that blow
could cause all four injuries.
[14] Ms Alveena Padayachee
testified that she was employed by the second appellant as a
professional
assistant to the operations manager. She previously
worked in the control room. The activation report reflects activities
relating
to the landlord as their customer. It shows that on 30 June
2012 an initial cellphone panic was received at 10:09:29 and it was
logged as assault by her. The landlord was contacted and he reported
that a tenant on site had damaged his vehicle and he was trying
to
attack him. A vehicle was dispatched and the police were contacted
which was a standard procedure to avoid their security going
on
something they cannot handle. The call is listened to and
contemporaneously recorded. The landlord cut the call without giving
the details.
[15]
The first appellant testified. He was on duty on that day patrolling
in the Amanzimtoti area.
He responded to a call. When he got into the
property he met with the landlord. He was driving in a marked Blue
Security Company
vehicle and he was in full uniform. He was wearing a
bulletproof vest, armed with a firearm and he was carrying a portable
radio
and a pepper spray and handcuffs. These items were in the
pouches in the bullet proof vest. The portable radio was in a clip
for
a pen, it was clipped into a pen holder. The opening of the
firearm holster is to the left of the bullet proof vest because he is
left handed. He approached the landlord who explained what the
situation was. The landlord said he was having a problem with a
black
male on his property that lives on his property. He asked what does
he want him to do with the guy. He said no he does not
want to do
anything, he wants him off his property. He then approached the
respondent who was in the property in front of a driveway.
He talked
to him about the assault and the damage to the vehicle, and he went
to look at the vehicle.
[16] The first appellant
testified that the landlord did not say he was assaulted but he said
he was
being harassed many times by the same black male. In the
vehicle, he saw that the front right-hand side rear-view mirror was
damaged
and on the driver's door and fender there were few scratches.
He explained to him that the black guy was trying to jump on his
vehicle and things like that as he tried to move out of the property.
He told the landlord to stand where he was and he will approach
the
black male. He went to the respondent who was standing in front of
the room he rents. He approached him face to face and before
he could
explain anything, the respondent gave him a slap on the left side
with his right hand. The respondent hit him on the left
cheek. The
portable radio fell to the ground. As the respondent picked it up
with his right hand, he grabbed it off his hand. The
respondent
grabbed hold of his firearm with the right hand in its holster. He
also grabbed the bullet proof vest on the right hand
side with his
left hand. He placed his hand on the respondent's hand grabbing the
firearm in the holster. He told the respondent
to release him and to
leave him alone. He did not want to release him. He turned left in
order that he cannot force out of the
holster. He turned right, left
and the respondent did not want to release. He turned straight
forward again. With the portable
radio in his hand, he swung it
towards the respondent. The respondent released the firearm and it
fell to the ground. The respondent
fell onto a pile of rubbish bags
that had garbage in it. When he sort of pushed the respondent away
with the portable radio still
in his right hand, the firearm fell to
the ground. He reached out for his firearm. He picked it up and
re-holstered it. He picked
it up with his left hand. The respondent
got up and he was bleeding on his forehead and nose area. The
respondent had not identified
himself as a lawman and things like
that. When he got up injured he was saying he is a member of the
public and things like that.
He then said he is a policeman and how
can he assault a policeman. He then threatened that if he had his
firearm he would have
shot him and the landlord. The respondent then
phoned other policemen. The police arrived and he explained to them.
[17] The first appellant
testified that the portable radio is a small hand held rectangular
shaped
with square edges. He used it to fend off the respondent by
pushing him off him. He pushed him away because he got a hold of his
firearm. The respondent was smelling of some kind of alcohol. He
admitted that after the respondent told him that he was a policeman,
he said things were not supposed to get to this extent that he gets
injured. He stated that he did not touch the respondent and
he did
not assault the respondent with a radio. He only pushed him away from
him to release his firearm and the vest. He said it
slipped his mind
to tell his attorney that the respondent fell onto the garbage. He
admitted that he asked the respondent what
was the problem. He stated
that the landlord's yard is a big yard and the respondent was next to
his room at the far end of the
yard. He asked the respondent a number
of times to release his firearm and bullet proof vest and he refused.
His only option was
to push him away from him. He does not know what
injured the respondent. He did not assault him.
[18] The learned
magistrate considered the manner as testified to by the first
appellant in which
the respondent got injured, the expert evidence
and he was not prepared to accept that account in preference to the
version of
the respondent and his witness. He found the discrepancies
between the evidence of the respondent and that of his girlfriend,
namely;
whether it was right or left hand used; whether the holster
is located in the chest or stomach area; the time of the incident and
number of blows not to be significant to discredit their version. He
found the respondent's witness to be an honest witness. He
found that
the four deep lacerations sustained by the respondent could not have
been caused by being pushed as described by the
first appellant. He
found as the more probable version that the respondent was hit more
than once on the face when it was not justifiable
to do so. He found
that the first appellant assaulted the respondent causing the four
deep lacerations in the facial area and he
was not justified to do
so.
[19] It is
contended on behalf of the appellants that the learned magistrate did
not have
proper regard to the fact that the first appellant is left
handed and the position of the holster with a firearm in the bullet
proof vest is for use by a left-handed person. Therefore, it is
argued, the respondent and his witness could not have been correct
that the first appellant repeatedly used a right hand to strike the
respondent. In my view, the first appellant in the plea having
admitted that he inflicted the injuries, even if the evidence leaves
some doubt whether it was the right or the left hand used,
that does
not, in my view, affect the substance of the evidence of the
respondent and his witness of an unjustified assault on
him by the
first appellant. Secondly, it is argued that the learned magistrate
erred in not attaching weight to the opinion evidence
of the expert
which indicated the injuries sustained are inconsistent with the
version of the first respondent and his witness.
In my view, it is
significant that the doctor who carried out the physical examination
of the first respondent and described them
as described in the
medical report was not called as a witness. His conclusion in the
medical report were that the injuries were
in keeping with the
description provided by the respondent and his witness. The medical
report (JBS) and its contents were admitted
by consent and relied
upon by both parties. The expert, having not examined all the medical
records relating to the respondent's
injuries and without knowing the
nature of the force used, and position and movement of the object
struck at the material time,
expresses an opinion as found by the
learned magistrate that does not carry much weight.
[20] The first
appellant in the plea, having claimed that he was justified in
inflicting
the injuries on the respondent, inexplicably failed to
call the landlord as a witness. After all the landlord had called the
first
appellant, interacted with the respondent before the arrival of
the first appellant and witnessed the interaction between the first
appellant and the respondent. In Harms
Almer's Precedents of
Pleadings
8
th
ed page 47 it is stated: ‘Once
infringement is proved the onus rests on the wrongdoer to prove some
ground of justification.
The onus of alleging and proving an excuse
or justification for the assault rests on the defendant’. The
learned magistrate
in my view was correct for criticizing the
appellants for the failure to call the landlord as a witness. The
onus was on the first
appellant to prove that he acted in
self-defense and therefore lawfully.
(Kgalenda v Minister of
Safety and Security
[2001] 4 All SA 636
at 638-639).
[21] In my
view, there are serious material inconsistencies in the appellants'
account
relating to the substance of the version. It was put to the
respondent that when the first appellant arrived, the respondent was
obviously under the influence of liquor with bloodshot eyes and
strong smell of liquor but the first appellant only testified that
he
smelt alcohol in the breath of the respondent. It was put to the
respondent that when the first appellant arrived in the premises,
the
respondent was shouting, he was aggressive and swearing, and
threatening to assault the landlord but the evidence of the first
appellant was that he arrived and went to speak to the landlord and
he then went to approach the respondent. It is simply not his
evidence that the respondent was in any manner misbehaving himself.
The first appellant testified that the firearm fell from the
holster
and he picked it from the ground which was not put to the respondent
and the witness. It was the essence of their evidence
that the first
appellant used the firearm to injure the respondent. It would have
been expected that it be put to them that he
could not have used the
firearm because it had fallen to the ground. It was never put to the
respondent or his witness that he
got injured as a result of falling
on the garbage. Comparing the version of the first appellant and that
of Ms Chiliza, Ms Chiliza
would not be mistaken but would be lying
whereas the learned magistrate found her to be an honest witness.
[22] I am also of
the view that probabilities in the sense of matters which might be
expected
to occur in the normal course of human affairs favour the
version of the respondent. The first appellant was visibly armed with
a firearm and a pepper spray. It is not clear why the respondent for
no reason and with bare hands would attack him. If the respondent
attacked the first appellant by slapping him on his face it is
strange that he did not react to that. It is claimed that during
the
attack the portable radio fell to the ground and for some unknown
reason the respondent stopped the attack and picked up the
portable
radio which is unlikely. The respondent then just clings to the first
appellant and refuses to release him. It appears
on the first
appellant's account the respondent had an ample opportunity to remove
the firearm which fell to the ground which indicates
that it was not
tightly secured but he inexplicable did not do so. The first
appellant does not use or try to use the pepper spray.
It is common
cause that the respondent called the police and when they arrived it
is the first appellant who apologizes which indicates
that he
realized that he was on the wrong. I also found serious
inconsistencies in the plea and the evidence of the first appellant.
In the plea, it is unequivocally admitted that the first appellant
inflicted the injuries but in his evidence, he is vacillating.
[23]
The learned magistrate considered and found it insignificant that in
evidence in
chief Ms Chiliza is recorded having stated that she was
on maternity leave which she said was not correct under cross
examination.
This was not shown not to be an error and it appears to
be a matter on which she would had no reason to lie about. I cannot
see
it as being impossible as suggested that the respondent having
fallen he could be kicked on his backside. Likewise, it is not
impossible
that the kick would result in no injuries.
[24] It is for the
appellants to show on appeal that the trial court came to a wrong
conclusion.
The respondent in the trial bore the onus of proof on the
preponderance of probabilities. The learned magistrate bearing in
mind
the issues in dispute, and bearing in mind the totality of the
evidence, considered the criticisms raised, evaluated the evidence
and considered the probabilities, and he decided to accept some of
the evidence and decided, for certain reasons, not to accept
the
other evidence. Findings of credibility based on demeanor and
probabilities and the resulting conclusions drawn therefrom will
not
easily be disturbed on appeal unless the record of the proceedings
reveal that the trial court gave insufficient consideration
to the
probabilities and their effect on the credibility of witnesses. The
presumption is that the decision of the trial court
on the facts is
correct and where the appellants have merely succeeded in raising
some doubt in the mind of the appellate court,
without satisfying it
of the wrongfulness of the decision, the appeal must fail. The
appellants are required to show, not that
the learned magistrate
might have been wrong, but that he was wrong. In my view, they have
failed to do so. In fact, having reconsidered
the matter, I am
satisfied that the learned magistrate came to the correct conclusion.
(S
v Hadebe and others
1997 (2) SACR 641
at 645e-f; Rex
v
Dhlumayo and another
1948 (2) SA 677
(A) at 690 para 3) .
[25] The learned magistrate
awarded the respondent general damages in the amount of R45 000. The
appellants
appeal on the basis that the award is extravagant and it
induces shock. It is submitted that the magistrate erred in taking
into
account that the value of the rand has declined whereas the
award is not based on foreign currency. In addition, it is submitted
that the court awarded R45 000 on the basis that he had scars on the
forehead and must have experienced pain although the court
indicated
that it was not sure if the respondent had experienced pain for two
years, and that the learned magistrate wrongly sought
case law to
justify the amount of R45 000 which he wished to award instead of
allowing himself to be governed by case law which
would have dictated
a lesser amount. Finally, it is submitted in the notice of appeal
that the appropriate amount is R11 000.
[26] It is not clear in
the record whether the learned magistrate was referred to any
relevant case
law by any of the parties. In the heads of argument, no
case law is referred to guide the court on the appropriate ward. I
regard
the criticism regarding the use of case law by the learned
magistrate to be unfounded. The use of awards in comparable decisions
as a guide is a well-established practice, although the peculiar
facts of each individual case and the loss in monetary value must
be
taken into consideration. It appears to me the failure by the learned
magistrate to indicate in what manner the cases he referred
he found
to be of importance in the assessment of the award he arrived at,
indicate that he might have been misguided by those
cases. The
distinguishing features of the individual case must be accounted for.
The learned magistrate referred to
Viviers v Jentile
[2010]
JOL 26564
(GMP) page 7 wherein the assault was a bruised the upper
lip, bruised lower leg and shock. They were described as not serious.
An award in the amount of R50 000-00 was made for pain and suffering.
In the
Minister of Police v Dlwathi
below para18 it stated:
'An assessment of appropriate general damages with reference to
awards made in previous cases is, as Nugent
JA observed in
Minister
of Safety and Security
2006 (6) SA 320
(SCA) (2006] ZASCA 71 at
para 17 ' fraught with difficulty....(t)he facts of a particular case
need to be looked at as a whole
and few Cases are directly
comparable... (t)hey are a useful guide to what other courts have
considered to be appropriate but they
have no higher value than
that.'
[27] Damages
is a monetary equivalent damage awarded to a person with the object
of eliminating
as fully as possible his past as well as future
patrimonial as well as non patrimonial damage. The
non-patrimonial damage
is the diminution because of a damage-causing
event in the quality of the legally recognized personality interests,
namely; physical-mental
integrity, liberty, reputation, dignity,
privacy etc. The injured person may claim compensation for all pain,
suffering and discomfort
flowing from the injury. It includes both
physical and mental pain and suffering in the past and in the future.
The aim of the
award is to enable the injured party to achieve the
object of compensation or satisfaction. It provides some
psychological satisfaction
for the injustice done. The nature and
extent of the injustice must balance with the quantum of damages
awarded. (Neethling, Potgieter,
Visser
Law of Delict
4th ed
Chap 6 para ·5 ; Joubert
(ed)The Law of South Africa
2
nd
ed . Vol 7 para 104).
[28] The onus is on
the respondent to prove on the balance of probabilities that he has
suffered
the damage and if so to what extent. Evidence may come from
the defendant adding to the evidence adduced by the plaintiff. The
plaintiff having placed the relevant evidence before the court, it
becomes the duty of the court to assess the ward to be made.
The
court exercises its judicial discretion to arrive at a fair award to
compensate for the negative impact of the delict on the
life of the
injured party. The amount of the award is not susceptible of precise
calculation. Assessing the quantum is acknowledged
to be clearly
difficult.
(Sandler v Wholesale Coal Supplies
Ltd
1941 AD 194
at 199). It is arrived at in the exercise of a broad discretion, it
depends on the judge's view of what is fair in all the circumstances
of the case.
(Sandler v Wholesale Coal Suppliers Ltd supra
199;
Road Accident Fund v Marunga
2003 5 SA 164
(SCA) 169). The
test for interference on appeal is: ‘Should an appellate court
find that the trial court had misdirected
itself with regard to
material facts or in its approach to the assessment, or, having
considered all the facts and circumstances
of the case, the trial
court's assessment of damages is markedly different to that of the
appellate court...
(Minister of Safety and Security v Augustine
(811/2016)[2017] ZASCA 59 (24 May 2017) paras 25-26;
Minister
of Police v Dlwathi
2016 (7G3)QOD 11 (SCA) para 8).
[29] The
respondent was a 28-year-old police officer. His height was 1.6
meters and his
weight was 50.5 kg and he was described as thin. He
sustained four deep lacerations on his facial area. The first was on
the right
maxillary area, the second on the nasal bridge, the third
on the glabella area and the fourth on the left forehead. The
injuries
were found to be in keeping with a blunt trauma and sharp
trauma, and being consistent with injury causing lacerations of the
skin
and blunt injuries some crushing the tissue. The treatment for
the injuries included suturing the injuries and the stitches removed
on the third week after the injury. The pain being moderate to severe
in the first or two weeks and after a month diminishing to
mild.
Initially the injured cheek bone could cause pain in chewing or
swallowing. The lacerations would cause disfigurement in
that they
would result in scars and they would look ugly but be correctable
through plastic surgery. The injuries were sustained
in June 2012 and
the ugly scars were still visible on January 2016. Plastic surgery
would entail excision of scars and the re
stitching. There was
no evidence of what would be the costs of the plastic surgery and
whether such costs are within the means
of the respondent.
[30] The
respondent on the version found proved by the learned magistrate was
assaulted
by being slapped on his face, struck on his face with a
firearm which caused him to fall to the ground and kicked on his body
with
booted foot. He did not retaliate. The assault was unprovoked.
The assault on the respondent was witnessed by his girlfriend and
his
landlord. He bled from the injuries on his face. He was attended to
by other police officers. He opened a criminal charge against
the
first appellant and he received the necessary medical treatment.
There was no evidence of the nature, extent and duration of
the
psychological damage suffered by the respondent. However, such an
assault would cause some mental anguish apart from physical
pain.
[31] In
Oamana O'
Connell v
2000 5 QOD G3-1 (ECO) a 12-year-old boy was stripped
naked and subjected to a sustained beating with a sjambok resulting
in serious
lacerations and bruises to the body leaving scars still
obvious after 12 months and confined to bed and unable to walk for
two
weeks. The appeal court overturning the magistrate's award of RB
000 general damages awarded R5 000 for
contumelia
and R12 000
for general damages. R12 000 is equivalent to R35 000 in 2017.
(Robert J Koch
The Quantum Yearbook
(2017) page 10).
[32] I am of the
view that on the evidence placed before the learned magistrate, the
assessment
of general damages in the amount of R45 000 is markedly
different from the amount that I sitting as a court of first
instance,
would regard as appropriate, fair and just. The award is
meant to fairly compensate the injured party but it should not
disproportionally
burden the wrongdoer. In my view, having considered
all the facts and circumstances of the case, I assess the
respondent's general
damages in the amount of R25 000.
[33] The
appellants appealed against both liability and quantum. They have not
succeeded
on liability and they have partly succeeded on quantum. I
am of the view that each party on appeal should bear his/her own
costs.
[34]
In the result, the order I would make is the following:
1.
The
appeal partly succeeds with no order as to costs.
2. The magistrate's order is set aside and
the following is substituted therefor: There shall be judgment for
the plaintiff
as follows:
(a)
R25
000 for general damages in respect of shock, pain, suffering, loss of
amenities of life, disfigurement and
contumelia;
(b) interest on
the amount specified in paragraph (a) above calculated at the legal
rate
as from a date 14 days after judgement to date of payment;
(c) cost
of suit together with interest thereon, calculated at the legal rate
as
from 14 days after allocatur to date of payment.
MNGADI AJ
I agree and it so ordered
SEEGOBIN J
APPEARANCES
Case Number
:AR551/16
For the Appellant
: Adv. P. Jorgensen
Instructed
by
: Messrs. Millar & Reardon Attorneys, Durban
For the respondent
:
Instructed by
: Messrs Andile Dakela & Associates, Durban
Matter
argued on
: 18 September
2017
Judgment
delivered on : 16 November
2017