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[2016] ZAGPPHC 264
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R and Others v Minister of Police (A315/2015) [2016] ZAGPPHC 264 (21 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number: A315/2015
19296/2010
Date: 21/4/16
In the matter between:
R A
FIRST
APPELLANT
S
A SECOND
APPELLANT
J
A THIRD
APPELLANT
C
A FOURTH
APPELLANT
versus
THE MINISTER OF
POLICE RESPONDENT
JUDGMENT
TOLMAY, J:
INTRODUCTION
[1] The appellants instituted action
against the respondent for damages suffered as a result of an
incident that occurred on 16
June 2009. On that day at approximately
2:00 am members of the South African Police Service (SAPS) broke into
and entered the house
where the appellants lived. The appellants
believed that they were the victims of crime and that their lives
were at peril. The
Court
a quo
found in favour of the
appellants. However they are not satisfied with certain orders made
by the court
a quo
and appeal the following:
a) The amount awarded for general
damages. The court
a quo
granted R25 000-00 for each of
the appellants;
b) The fact that no award was made in
regard to future medical expenses claimed by the appellants;
c) The fact that the court
a quo
granted costs on the Magistrate’s Court scale and failed to
include costs of counsel;
d) The fact that the court
a quo
granted interest at a rate of 9% and not 15.5%, the applicable rate
when summons was issued on 12 April 2010.
THE EVIDENCE
[2] The first and second appellants
are husband and wife and the third and fourth appellants are their
son and daughter who were
respectively 16 and 15 years old at the
time of the incident. There is also a baby boy who was 2 and a half
years old at the time
of the incident but he was not affected by the
incident. The family resided at […] … Street, Benoni.
On 16 June 2009
at 02:00 am first appellant heard the dogs barking.
He went to the bathroom and looked through the window to try and
determine
what caused it. He saw armed men who pointed laser lights
and flash lights at him. It would later transpire that approximately
30 policemen surrounded the property. At the time they were not
wearing police uniforms. In the meantime some of the men broke into
the house. A rifle was pointed at first appellant and he was told not
to look at the person pointing the gun. First appellant testified
that he was sure they were being robbed. The men did not identify
themselves as policemen. He feared for his family’s
lives
and that his daughter and wife would be raped. The third appellant,
who was 16 at the time, was pushed to the floor, a gun
was pointed at
him and he was stepped on by one of the policemen. He tried to crawl
to his sister’s (the fourth appellant’s)
room as she was
screaming and he feared that she would be raped, but the men would
not allow him to go to her. The second
appellant, the mother,
also encountered the men and a gun was pointed at her. She wanted to
go to her baby’s room but was
initially refused leave to do so.
She was in total shock and she described that she froze. Apparently
she was unable to react or
even observe properly what was going on
around her. It was only after some 20 – 30 minutes when the
first appellant told
the person pointing a gun at him that they
should take their valuables but just spare their lives that the
person identified himself
as a policeman. Even after this the police
failed to inform the appellants why they were there, or to apologise
to them, neither
did they assist the severely traumatized family.
After this the family also witnessed the police assaulting a suspect
outside the
house. It would later transpire that what motivated the
police’s actions was that a casino robbery occurred earlier
that
evening and a suspect directed the police to the address of the
appellants as, according to the suspect a certain Eugene Morgan,
who
was involved in that robbery, lived at the premises. It transpired
from the evidence that Mr M, whom the appellants only knew
from
sight, lived at […] Road. That is the house adjacent to the
house of the appellants. The two houses are described as
semi-detached houses. Photographs indicate that the houses shared a
wall but had two distinct and separate entrances which are
clearly
marked as […] and […]B.
[3] To add insult to injury, the
police again failed to assist the appellants when they tried to lay a
charge the next day. The
first two appellants went to the Benoni
Police Station to do that. Initially the station commander was
helpful but when he realised
that the complaint was against the
police his attitude changed. He was no longer willing to assist the
appellants and also told
the counsellor who was talking to the second
appellant not to assist them any further. After a discussion between
the station commander
and the counsellor, the counsellor told the
appellants to drop the charges. The appellants persisted however and
returned the next
day and succeeded in laying charges. The police
failed to prosecute because they alleged that the perpetrators could
not be identified.
This is absurd as the police themselves were the
suspects and it would have been very simple to identify the officers
who executed
the operation at the appellants’ house. What is
also important is that the respondent did not call any of the police
witnesses
from the Benoni police station. The Appellants’
evidence about what transpired there therefore stands uncontested.
[4] The first three appellants
testified but the 4
th
appellant did not. The evidence was
that she was still so traumatized that she was incapable of
testifying. The court
a quo
accepted the evidence of the other
Appellants and Dr Henk Swanepoel a clinical psychologist that she was
unable to testify as she
could not face reliving the trauma.
[5] The Respondent did not call any
expert to counter Dr Swanepoel’s evidence. According to his
report, all the appellants
suffer from post-traumatic stress disorder
(PTSD) as well as related psychological conditions due to the
incident. The first appellant
suffers from PTSD which is manifesting
in dystonia, which is described as a condition where a person lives a
life of depression.
Such a person can still function but suffers from
low mood and low energy. The second appellant suffers from PTSD with
heightened
levels of anxiety and dependency due to PTSD. Her sleeping
patterns were also affected. Third appellant, who was about 16 years
old at the time of the incident, suffers from PTSD anxiety and
depression. His school work deteriorated and he suffers from
flashbacks.
The fourth appellant who was 15 years old at the time of
the incident also suffers from PTSD and severe traits of paranoia and
severe personality pathology. Her schoolwork also deteriorated and
she suffers from suicidal thoughts and according to Dr Swanepoel
she
developed paranoid personality disorder which is a very serious type
of psychopathology. People with this order pose a threat
to
themselves and others.
[6] The Respondent denied the
occurrence of the incident on the pleadings. However at the trial the
incident was admitted but it
was then contended that the police
identified themselves and asked permission to enter. The versions
given by the three witnesses
called by the State varied from witness
to witness. Three of the policemen who were present at the incident
came to testify. The
court
a quo
rejected their evidence and
quite rightly so. The court
a quo
as a result accepted the
Appellants’ version.
[7] From the evidence it is clear that
all the appellants were severely traumatised by the incident.
QUANTUM OF GENERAL DAMAGES
[8] In the light of the aforesaid
evidence one needs to consider whether the amount of R25 000-00
awarded per appellant for
general damages is appropriate. To
determine this one needs to look at the evidence.
[9] The appellants’ right to
privacy was violated. There was physical assault upon the person of
first and third appellants
and all the appellants believed that force
would be applied against them by the intruders. The predominant and
serious injuries
are psychological injuries as a result of the shock
and trauma suffered by the Appellants. It does appear that the
Court
a quo
failed to fully grasp the nature and extent of
these injuries as well as the impact which they had and will continue
to have on
the Appellants.
[10] Dr Swanepoel’s evidence
stands uncontested that the clinical syndromes, which includes PTSD
was caused by the incident.
The Appellants’ conditions
are defined as “
severe and chronic
”. It is
clear from the evidence and the expert evidence of Dr Swanepoel that
there is a causal link between the conduct
of the police and the
psychological injuries which resulted.
[11]
The very nature of general damages makes it difficult to exactly
assess an appropriate amount. Ultimately the amount awarded
is the
amount which a Court may deem reasonable under the particular
circumstances of a specific case.
[1]
[12]
In
Minister
of Police v Steve Dhwathi
[2]
the following was said:
“
it is well established that
an assessment of an appropriate award of general damages (sometimes
also referred to as non-pecuniary
damages) is a discretionary matter
and has its objective to fairly and adequately compensate an injured
party (see Protea Accident
Fund v Lamb
1971 (1) SA 530
(A) at
534H-535A and Road Accident Fund Marunga ZASCA 9144/2002)
[2003]
ZASCA 19
;
2003 (5) SA 164
(SCA) para 23). An appellate court will
interfere with an award for general damages in instances of a
striking disparity between
what the trial court awarded and what the
appellate court considers ought to have been awarded (Protea at 535A;
Marunga para 23).
It will also interfere where there has been an
irregularity or misdirection (Minister of Safety and Security v Scott
& another
ZASCA (969/2013)
[2014] ZASCA 84
;
2014 (6) SA 1
(SCA)
para 42). A misdirection might sometimes appear from a court’s
reasoning and in other instances it might be inferred
from a grossly
excessive award (Minister of Safety and Security v Kruger ZASCA
(183/10)
[2011] ZASCA 7
;
2011 (1) SACR 529
(SCA) para 27).
[13] The learned judge awarded only
R25 000-00 to each of the appellants in respect of general
damages. The appellants contended
that this amount is not fair and
reasonable under the circumstances of this case.
[14] Reference to prior awards is a
useful aid to assist a Court in determining what a fair and
reasonable award would be considering
the specific circumstances of a
case, but in the final analysis each case must be determined on its
own merits. The Court
a quo
relied on three cases in her
analysis of what would be a just and reasonable award. I will deal
with them in order to determine
whether these authorities support the
award made by the court
a quo.
To determine this one needs to
consider the circumstances of each case.
[15]
In
Kritzinger
[3]
the plaintiffs were the parents of two children who were killed in a
car accident and as a result they suffered from chronic PTDS
and
major depressive disorder. The Court awarded R150 000-00 and
R120 000-00 respectively for general damages. In
Walters
[4]
the plaintiff was awarded R185 000-00 general damages arising
from the death of her husband who was arrested and detained
for
drunkenness. The deceased committed suicide while in police custody.
It was found that the plaintiff suffered extensive psychological
sequelae
as a result of the death of the deceased. Both these cases dealt with
indirect trauma and yet the amounts awarded are substantially
more
than the amount awarded by the Court
a
quo.
Dr
Swanepoel testified that an incident directly experienced has more
serious consequences than one witnessed.
[16]
In
Marwana
v The Minister of Police
[5]
the Court awarded R10 000-00 for the unlawful entry, but it is
important to note that a further award was made of R55 000-00
for the unlawful arrest and detention and R90 000-00 for the
assault. Thus a total award of R155 000-00. It would seem
that
the learned judge
a
quo
relied heavily on this case as justification for the award of
R25 000-00. It would however seem that the Court erroneously
took into account only the R10 000-00 awarded for unlawful
entry.
[17]
I now proceed to refer to some other authorities that could assist in
coming to an appropriate award. In the matter of
Vilikazi
v Minister of Safety and Security
[6]
an amount of R90 000-00 was awarded. In that matter the
plaintiff was detained for 5 days but no evidence was led pertaining
to the extent of the trauma and there was no evidence of permanent
psychological injuries or conditions.
[18]
In
Minister
of Police v Steve Dlwathi
[7]
plaintiff was unlawfully assaulted. The court awarded an amount of
R200 000-00 for general damages however the plaintiff suffered
physical injuries which resulted in loss of hearing and depression
but he did not suffer from post-traumatic stress disorder. The
evidence pertaining to the psychological injuries seems to have been
limited. Therefore the case is distinguishable from the present
matter.
[19]
The case of
Pillay
v Minister of Safety and Security
[8]
compares best with the present case. The plaintiff was a 62 year old
woman at the time of the incident. The police gained
access to
the plaintiff’s premises by breaking open a security gate and
door in the perimeter wall at the main entrance to
the house. Doors,
door frames, door locks and cupboard door locks were damaged. Some
jewellery and cash disappeared. She was severely
traumatised and
humiliated by the incident and suffered from PTSD and major
depression. The Court stated as follows:
“
In
assessing the appropriate award to make in relation to the
plaintiff’s claim for general damages, I take into account the
excessive execution of their authorisation by members of the South
African Police Service, that the plaintiff was 62 years old
at the
time, that she was severely traumatized by the events, that her
privacy was grossly invaded, and that she felt immensely
degraded and
humiliated. I also take into account the continuing depression and
post-traumatic stress syndrome from which she has
been suffering for
almost the past six years solely as a result of the incident, the
severity of her on-going symptoms, her poor
prognosis of recovery,
and the fact that she would probably require psychiatric treatment
intermittently for the rest of her life.
On the other hand, I take
into account that our courts are not ‘extravagant’ in
awards for general damages [see: Minister
of Safety and Security v
Seymore 2006(6) SA 320 (SCA), par 20]. There should also be fairness
towards a defendant [see: De Jongh
v Du Pissanie NO 2005(5) SA 457
(SCA), par 60]
[9]
.”
[20] The Court then proceeded to make
an award of R150 000-00. (If adjusted for inflation in
2015 this amount equates
to R222 775-89).
[21] In my view the learned judge
a
quo
clearly misdirected herself when she awarded an amount of
R25 000-00 to each of the appellants. The whole family was
severely
traumatized by the incident and all of them still suffer
from PTSD and depression and will continue to do so. The fourth
appellant
suffers additionally from severe personality pathology. On
a perusal of the case law the award made
in casu
is clearly
disproportionate and does not constitute a fair and reasonable award.
[22]= The question which also arises
is if the appellants should be awarded the same amount because they
were subjected to the same
incident. In my view such an approach is
simplistic and runs the risk of disregarding the individual. In
determining the quantum
of general damages one should consider the
person before Court as well as the circumstances of the incident. In
doing so I considered
the following, which I am of the view is of
importance:
(a) the age of the person,
(b) the gender, which will be
particularly important in cases where a person might be more
vulnerable as a result of his or her
gender,
(c) the psychological make-up of the
person. Certain people find it more difficult to deal with trauma
than others,
(d) the nature and duration of the
violation,
(e) the impact of the trauma on the
individual physically and psychologically,
(f) the duration of the physical
and/or psychological consequences of the violation.
[23] The aforesaid does not propose to
constitute a
numerus
clausus
. Each matter will still
have to be determined on its own merits but it may serve as a
guideline to assist a Court to exercise its
discretion judicially. In
casu
all the appellants suffer from anxiety, depression (in
different degrees) PTSD and flash backs. I take into account their
respective
positions in the family, the actual trauma they were
subjected to and the consequences of the incident on each of them. In
my view
the first three appellants should be awarded the same amount
without negating their individual suffering. Fourth appellant who was
a young girl at the time seems to have suffered more serious
consequences as a result of the incident, therefore she should be
awarded a larger amount.
[24] In my view considering all
circumstances the first three appellants should be awarded an amount
of R200 000-00 as general
damages. Fourth appellant however
should be awarded an amount of R250 000-00.
FUTURE MEDICAL EXPENSES
[25] Dr Swanepoel’s uncontested
evidence was that all the appellants will require future medical
treatment. Although the learned
judge
a quo
dealt extensively
with his evidence in her judgment she failed to make any mention of
the future medical expenses that he referred
to nor did she make any
reward in this regard. On perusal of the judgment it looks as if this
could have been an oversight.
[26] The respondent did not call any
expert but merely attacked Dr Swanepoel’s evidence pertaining
to the costs and attempted
to persuade the Court that the appellants
could get the necessary medical treatment free of charge from public
facilities and that
the calculation of future medical expenses by Dr
Swanepoel is incorrect.
[27] Dr Swanepoel’s evidence is
that the appellants will need psychological therapy as individuals
and as a family. I have
already dealt with the psychological
sequelae
which were caused by the incident. The following clinical syndromes
were specifically identified:
(i) Anxiety;
(ii) Depression
(iii) PTSD.
[28] The fourth appellant was also
diagnosed with severe personality pathology including paranoid
personality disorder. There is
no doubt that future medical expenses
will have to be incurred.
[29] Dr Swanepoel’s uncontested
evidence is that the appellants are likely to need 15 individual
sessions and 10 family sessions
at a rate of R900-00 per session. In
the light of the evidence and especially the severity of fourth
Appellant’s condition
I am of the view that this estimate might
even be on the conservative side.
[30] According to Dr Swanepoel, each
Appellant will need 15 individual sessions totalling 60 sessions at
R900 per session = R54 000-00
(R13 500 each) and 10 family
sessions totalling R9000, 00. The expected future medical cost
is therefore R63 000-00.
[31] The Appellants testified that
they started with therapy but had to suspend it as their medical aid
scheme would not pay for
it and they could not afford the required
treatment. The suggestion that the appellants should attend to a
public hospital for
assistance is preposterous. In order to do so
they will have to pass a means test. Furthermore no evidence was led
by the respondent
that this will be a viable option available to the
appellants. Counsel for the respondent questioned the correctness of
the amounts
proposed by Dr Swanepoel. In the absence of evidence to
support his argument the opposition to the amount must be rejected.
[32] It follows that a claim for
future medical expenses in the amount of R63 000-00 should be
awarded.
THE SCALE OF COSTS AWARDED TO THE
APPELLANTS
[33] The learned judge
a quo
awarded costs on a magistrate’s court scale without counsel
requesting it or giving the parties an opportunity to argue costs.
It
appears as if she decided to apply this scale of costs based merely
on the quantum of damages awarded by her. In the light of
the award
made by this Court the basis for the Court
a quo’s
cost
order falls away. I however, deem it appropriate to deal with this
aspect.
[34]
This matter dealt with the violation of important constitutional
rights and rights of privacy and personal integrity of the
appellants.
This
case also bears a public interest element as,
inter
alia
,
it relates to unlawful conduct by the SAPS and the protection of the
rights of citizens. An attack on the rights of the
individual
is an attack on the community and the grinding down of individuals’
rights erodes the rights of the community
as a whole. Therefore
in this type of case the impact is not limited to the individuals but
extends to the community of which
they form part. This
underscores the importance of the matter.
[35] The Courts
have granted costs on a High Court scale despite relative low amounts
of
quantum
in similar matters. An example of an unlawful search of a premises
where notwithstanding the
quantum
awarded the Plaintiff was still awarded her High Court costs is found
in
Pillay
v Minister of Safety and Security
[10]
In
Seria
v Minister of Safety and Security and others
[11]
the Court
dealt with the issue of public interest and awarded High Court costs
despite that the damages awarded was only R50 000,
00.
[36]
In dealing with a claim based upon an assault by the police Colman J
held in
Dladla
v Minister of Police
[12]
that:
“
For what the plaintiff is
proved to have suffered, the sum of R750 will, in my view, be proper
compensation, and that is what I
shall award. An award of that
magnitude will ordinarily carry costs on the magistrate's court scale
only.
But I have a discretion to award Supreme Court costs,
and I think that it is right to do so in the present case, for two
reasons:
The first is that the hearing was prolonged by reason of the
false evidence which Mthembu and Gcumisa gave, and the second, and
more weighty reason is that I wish to mark my strong disapproval of
the conduct of the policemen who assaulted the plaintiff.
An obiter dictum by SCHREINER, J.A., in Manamela v Minister of
Justice,
1960 (2) SA 395
(AD) at p. 404, fortifies me in my view that
a special order as to costs against the present defendant is a
suitable way of marking
that disapproval.
” [My emphasis]
[37]
T
here
can furthermore be no doubt that the case was one of “
more
than the ordinary difficulty
”
(which is part of the test in law for the scale of costs). It would
seem that the incorrect test was applied in deciding
the scale of
costs and that the learned judge erred in limiting the scale of the
cost to the amount awarded
[13]
.
This case ran for 5 days at the end of which the Court requested
heads of argument from counsel. To then disallow costs of counsel
seems to be wrong.
[38] In this case the duration of the
trial was extended dramatically by the respondents initially denying
that the incident occurred
and afterwards the clearly false evidence
of the three policemen which the Respondent had called. If the
Respondent had conceded
the incident and that the actions were
unlawful the matter may have been resolved in one or two days.
The Respondent vehemently
opposed the matter from the onset and the
launching of the action in the High Court was reasonable.
[39] In the light of all the
circumstances the learned Judge did not exercise her judicial
discretion properly when she awarded
costs on a magistrate’s
court scale. I am also of the view that a punitive cost order is
appropriate under the circumstances.
THE INTEREST AWARDED
[40] The learned judge erroneously
applied the incorrect interest rate. She applied the interest rate
applicable on date of judgment.
[41]
In respect of interest the rate applicable when the summons was
issued (15,5%) should be applied. Once the summons is
issued
the interest rate applicable is set and remains unchanged even if the
statutory rate is amended
[14]
.
[42] As a result, the correct interest
rate being 15.5% should be awarded.
CONCLUSION
[43] In the light of the aforesaid the
following order is made:
43.1 The appeal
is upheld;
43.2 The order
of the Court
a quo
pertaining to general damages, future medical expenses, costs and the
applicable interest rate is set aside;
43.1 The
respondent is ordered to pay general damages in respect of the first,
second and third appellants in the amount of R200 000-00
each;
43.2 The
respondent is ordered to pay general damages in respect of the fourth
appellant in the amount of R250 000-00;
43.3 The
defendant is ordered to pay the amount of R63 000-00 to the
appellants in respect of future medical expenses; and
43.4
The
Defendant is ordered to pay the Plaintiffs’ taxed costs of suit
on an attorney and client scale (which shall include all
reserved
costs) on the High Court scale, which costs shall include (but not be
limited) to following:
43.4.1 costs of preparing and
compiling the
plaintiff’s bundles and making copies
thereof;
43.4.2 the costs of a
senior-junior counsel;
43.4.3 the reasonable travelling
expenses of the plaintiffs in order to attend to medico-legal
evaluations necessary in compiling
the
medico-legal report;
43.4.4
the costs of the
medico-legal reports as well as reservation and preparation fees, if
any, of the following experts of whom notice
have been given, namely
Dr HJ Swanepoel (Clinical Psychologist).
______________________
R G TOLMAY
JUDGE OF THE HIGH COURT
_______________________
N B TUCHTEN
JUDGE OF THE HIGH COURT
HIGH COURT OF SOUTH AFRICA\
(GAUTENG DIVISION, PRETORIA)
Not reportable
Not of interest to other Judges
CASE NO: A315/2015
In the matter between:
R A
FIRST
APPELLANT
S
A SECOND
APPELLANT
J
A THIRD
APPELLANT
C
A FOURTH
APPELLANT
versus
THE MINISTER OF
POLICE RESPONDENT
MINORITY JUDGMENT
MAKGOKA. J
[1] I have read the judgment prepared
by my colleague, Tolmay J. I agree that the appeal should succeed. I,
however, disagree with
the order she proposes in respect of the
quantum for general damages and the scale of costs. Below I set.out
my reasoning for disagreement
on those two aspects.
[2] The factual background is largely
common cause and is fully set out in my colleague's judgment. As a
result, I do not intend
to repeat it here, save the following
essential features: The appellants - a couple and their two teenage
children - were victims
of an unfortunate incident on 16
June 2009, when heavily armed police officers broke into their
residence. They were
looking for a suspect in an armed robbery during
which a police officer was killed. As it turned out later, the police
had been
directed to a wrong address. The suspect lived In a property
adjacent to that of the appellants. For approximately half an hour
the appellants were subjected to a traumatic experience. They were
ordered to lay on the floor, and pointed with guns while their
house
was searched. During that ordeal, the police did not identify
themselves as such, or the purpose of their presence at the
appellants' property.
[3] As a result of the incident, the
instituted action against the respondent, each claiming R750 000 for
general damages and R20
000 for future medical expenses. The amount
claimed in respect of general damages for each of the appellants was
said to be 'a
global (sic) figure in respect of the infringement of
the plaintiff's fama, dignitas, privacy and honour, deprivation of
freedom
and infringement of the (appellants') rights to
freedom, psychological trauma, medical expenses,
future medical expenses, pain and suffering'. Initially, in their
notice in terms of the Institution of Legal Proceedings Against
Certain Organs of the State Act 40 of 2002, each of the appellants
claimed an amount of R2 000 000 (TWO MILLION RAND) from the
respondent.
[4] The appellants were successful in
the trial court before Mali AJ, who awarded the appellants R25 000
each in respect of general
damages, and nothing in respect of future
medical expenses. The learned ·Judge awarded the appellants
costs, but ordered
that such costs should be taxed on a magistrate
court scale. Interest on the capital amounts was ordered at the rate
of 9%. The
appellants are aggrieved with the amounts awarded in
respect of general damages; the fact that no award was made in
respect of
future medical expenses; the order of party and party
costs on a magistrate court scale, and the rate of interest at 9% per
annum.
The appellants appeal to this Court with leave of the Deputy
Judge President.
[5] I consider briefly, the trial
court's judgment. The learned Judge correctly applied the trite
principle that although some guidance
can be obtained by having
regard to previous awards made in comparable cases, which afford a
useful guide, the process of comparison
is not a meticulous
examination of awards, and should not interfere upon the court's
general discretion, as stated in Protea Assurance
v Lamb (above} at
535B-536A and Minister of Safety and Security v Seymour
2006 (6) SA
320
(SCA) paras 17 and 18. The learned Judge was therefore conscious
that awards in previous cases can only offer broad and general
guidelines In view of the differences that inevitably arise in each
case.
[6]
In coming to the conclusion she did in respect of general damages,
the learned acting Judge considered, mainly, three comparable
cases:
In Kritzinger v Road Accident Fund,
[15]
parents of two children who were tragically killed in a motor vehicle
accident had to identify the bodies of their children in
the
mortuary. As a result of the grief associated with the identification
of their children's bodies and the incident as a whole,
they suffered
chronic post-traumatic stress disorder and major depressive disorder,
respectively. In Walters v Minister of Safety
and Security
[16]
the plaintiff's husband committed suicide in police custody after
requesting him to be detained there because he was drunk. The
plaintiff suffered extensive psychological sequelae as a result of
the death of her husband. In Draghoender v POF
[17]
the plaintiff, a mother of a young child, was called to the scene of
a motor vehicle collision outside her home where her child
had been
run down and killed. She suffered emotional shock and trauma and was
diagnosed with anxiety disorder (post traumatic
stress), a major
depressive disorder with psychosis and a panic disorder with related
agoraphobia. In all of the above cases, the
plaintiffs were awarded
amounts in excess of R100 000.
[7] The learned Judge was satisfied
that all the appellants in the present case suffered psychological
sequelae. She, however, was
'not persuaded that the severity of
suffering by (the appellants) weighs far more than the suffering
experienced by the plaintiffs
in Draghoender and Kritzinger..,' The
learned Judge awarded R25 000 for general damages in respect of each
appellant On behalf
of the appellants it was contended among others,
that this award is totally inadequate in the circumstances, and fails
to give
sufficient weight to the impact of the incident and how it
impacted on the appellants.
[8] It is common cause that the
appellants each suffer from a post traumatic disorder as a result of
the incident, although the
extent varies from one person to the
other. In para 5 of my colleague's judgment, the full extent of each
appellant's psychological
effect is set out, as testified by the
clinical psychologist who testified on behalf of the appellants. What
remains is to determine
whether the trial court's assessment of the
quantum adequately compensate the appellants for the trauma they
suffered.
[9]
It is trite that the award of damages lies as a sole discretion of
the trial court. The appeal court's power to interfere with
the
exercise of that discretion is circumscribed to instances where the
award is vitiated by an irregularity, misdirection or where
there is
a striking disparity between the award and that which the appeal
court would have imposed had it been the trial court.
[18]
As pointed out by the Supreme Court of Appeal (SCA), a misdirection
might sometimes appear from a court's reasoning and in other
instances it might be inferred from a grossly excessive award.
[19]
[10] In the present case, I am unable
to fault the reasoning of the trial court that the circumstances
giving rise to the trauma
should be considered as a factor in
awarding general damages, although focus should be more on the impact
that those circumstances
had on a particular person. However, I am of
the view that the misdirection can be inferred from the particularly
low award that
the trial court made. This Court is therefore at large
to interfere with the award, and determine what it considers fair and
adequate
compensation for the appellants.
[11] The determination of a fair and
adequate compensation is where my colleague and I part ways. She
proposes that the first to
third respondents be awarded R200 000
each, and that the fourth respondent should be awarded a slightly
higher amount of R250 000.
Without underplaying the trauma that the
appellants suffered, Iam of the view that those amounts are
excessive. It should be borne
in mind that an appeal court which
interferes with an award made by the trial court, exercises a
discretion itself, and as such,
it has to do so judiciously.
[12]
I am quite aware of, and take into account, the recent tendency by
our courts to make higher awards than has been the trend
in the past.
See Road Accident Fund v Marunga,
[20]
where the rationale therefor was articulated, with reference to
Wright v Multilateral Vehicle Accident Fund, in Corbett and Honey,
The Quantum of Damages in Bodily and Fatal Injuries Cases vol 4 at
E3-31. However, the remarks in Marunga were tempered later in
De
Jongh v Du Pisanie N.0.
[21]
where, after noting that the tendency towards increased awards in
respect of general damages in recent times was readily perceptible,
the court reaffirmed conservatism as one of the multiple factors to
be taken into account in awarding general damages.
[22]
The court concluded that the principle remained that the award should
be 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', as pointed out in Pitt v Economic
Insurance
Company Limited.
[23]
[13]
The conservative approach propounded In De Jongh is clearly
discernible in the judgments of the SCA. where the awards made
by the
High Court are routinely, and significantly, reduced by on appeal to
it. See for example: Marunga (above) (R375 000 to R175
000); Minister
of Safety and Security v Seymour (above) (R500 000 to R90 000);
Minister of Safety and Security v Tyulu,
[24]
(R50 000 to R15 000); Minister of Safety and Security v
Kruger
[25]
(R300 000 to R20 000) and Minister of Police v Dlwathi.
[26]
(R675 000 to R200 000).
[14] In Dlwati, an advocate in private
practice was unlawfully assaulted by the police in the presence of
friends. He suffered serious
and permanent physical injuries. As
regards the psychiatric effect of the assault the respective experts
on behalf of parties agreed
that the plaintiff:
(a) experienced a significant
deterioration in his functioning;
(b) has no self-confidence and feels
self-conscious about his appearance and the difficulty with his
teeth;
(c) has memory and concentration
difficulties;
(d) has withdrawn from his hobbies,
social and leisure time activities;
(e) is more irritable and has
developed depression and anxiety;
(f) suffers from post-traumatic
stress.
[15] The High Court had awarded Mr
Dlwati a globular amount of R675 000 as general damages for the
physical and psychological injuries.
The SCA found the amount of R675
000 to be excessive and substituted R200 000 for it.
[16]
My colleague relies heavily on the award made in Pillay v Minister of
Safety and Secutity.
[27]
There, as is the case here, there was unlawful and forceful entry
into the property of the plaintiff, a 62 year old lady. She suffered
post traumatic disorder, and was awarded R150 000. Having read that
judgment, it does not appear that the learned Judge there heeded
the
caution sounded by the SCA in De Jongh. To my mind, and with respect,
the award in Pillay is indicative of 'pouring largesse
out from the
horn of the plenty at the defendant's expense' cautioned against in
Pitt v Economic Insurance, referred to with approval
in De Jongh. I
doubt very much whether that award would have borne the appellate
scrutiny of the SCA, in the light of that Court's
conservative
approach.
[17] In the circumstances I am unable
to agree with the compensation proposed by my colleague. When one
compares, for example, the
far-reaching and career-altering sequelae
in Dlwati, with those in the present case, it is clear that the
appellants should also
be conservatively compensated. I find it very
difficult to justify an amount of R200 000 (or more) as compensation
for the appellants
in light of the conservative path that the SCA has
consistently followed in such matters, as demonstrated more recently,
and lucidly,
Dlwati.
[18]
My colleague seeks to distinguish Dlwati in suggesting that the
psychological effects there were limited. With respect, this
is not
correct. I have, in para 14 above, set out the full extent of the
sequelae, among which, was post-traumatic stress as a
result of
serious assault. The SCA accepted that Mr Dlwati's emotional
well-being had been seriously compromised and his major
depressive
disorder was in all probability of a permanent nature. At the very
least, the prognosis for treatment of that disorder
was poor.
[28]
Mr Dlwati had to, among others, abandon his first career choice as an
advocate in private practice to seek employment as a State
Advocate.
That, in my view, cannot be brushed aside as being of 'limited'
consequence.
[19] It must always be borne in mind
that the appellants in the present matter were not assaulted, except
for limited physical contact
on appellants 3 and 4. That should also
be a factor in the assessment of the compensation. If my colleague is
correct in the compensation
she awards to the appellants for only
unlawful entry and the psychological trauma, it means that had there
been physical assault
on the appellants, she would have awarded more.
probably in the region of R600 000 to R800 000. That would clearly be
out of proportion
with previous comparable awards. At the risk of
repetition, the SCA in Dlwati awarded a globular amount of R200 000
for severe
assault which resulted in, among others, post-traumatic
stress and permanent psychological damage. In the present case there
was
no assault, and that should be reflected in the compensation the
appellants receive.
[20] In all circumstances, taking into
account all the relevant factors mentioned in this judgment, and in
particular the approach
of the SCA in such matters, a sum of R100 000
for each of the appellant would be just and adequate compensation.
Unlike my colleague,
I do not think that the fourth respondent is
entitled to receive a higher award than the rest of the appellants.
That was never
prayed for in the pleadings, and It was never
foreshadowed by the appellant's counsel, who presented very able
written submissions,
both in the trial court and before us.
Consistently, the appellants have sought a similar amount of
compensation for general damages.
It is not for us to grant something
beyond that which the parties seek as relief. As a matter of policy,
courts should be slow
to do so, unless there are compelling reasons
for such an approach. In the event the court does this, the parties
should be granted
adequate opportunity to address the court on the
aspect mero motu raised by the court. That is not the case here.
[21] The trial court did not make any
award in respect of future medical expenses, most probably due to an
oversight, as correctly
pointed out by my colleague. That order
should be made in the amount of R63 000 as a total amount for all the
appellants. With
regard to interest, I agree that the interest should
have been ordered at the rate which was applicable as at the time the
cause
of action arose, which is 15.5% per annum.
[22]
Finally, I turn to the issue of costs. I agree that the trial court
erred in granting costs on the magistrate court scale.
J however
disagree that the trial court erred in not awarding costs on a scale
as between attorney and client. The award of costs
and the scale
thereof is a matter within the discretion of the court making the
order.
[29]
The appeal court will not easily interfere with the exercise of that
discretion. It can only interfere where the discretion was
exercised
on a wrong principle or was capriciously made. Put differently, a
court of appeal's power to interfere is limited to
those cases where
the exercise of the judicial discretion is vitiated by misdirection,
irregularity, or the absence of grounds
on which the court, acting
reasonably, could have made the order in question.
[30]
The order of costs on a scale of attorney and client is an
extra-ordinary one which should be reserved for cases where there is
clearly and indubitably vexatious and reprehensible conduct on the
part of a litigant. The fact that a litigant came to court with
a
version which was found to be false and contradictory, does not
necessarily mean a punitive costs order should follow. If a trial
court does not grant it, in the exercise of its discretion, so be it.
[23] The trial court exercised a
discretion in the present matter. There is nothing in the record
which suggests that that discretion
was capriciously exercised, or
that there was a misdirection. My colleague does not identify any of
the above in the manner in
which the trial court considered the issue
of costs. The fact that my colleague would have granted an order of
costs on a scale
between attorney and client had she sat as a trial
court, is not a basis for interfering with a discretion, properly
exercised.
Accordingly, costs should be ordered on a High Court
scale. In my view, it is not necessary to make the elaborate order as
proposed
by my colleague in respect of the taxation of costs. That is
the province of the Taxing Master of this court, in the exercise of
his discretion· as to which items should be allowed in the
appellants' bill of costs, presented for taxation.
[24] For the above reasons, I would
uphold the appeal and substitute the order of the trial court for the
following:
1. The defendant is ordered to pay:
1.1 An amount of R100 000 to each of
the plaintiffs in respect of general damages;
1.2 An amount of R63 000 in respect of
future medical expenses for all the plaintiffs;
1.3 Interest on the capital amounts at
the rate of 15,5% per annum from the date of the judgment until final
payment;
1.4 Costs of the suit, be taxed on the
High Court scale, as between party and party.
________________________
T. M. Makgoka
Judge of the High Court
For the Appellants: Adv RJ Groenewald
For the Respondent: Adv MS Phaswane
[1]
Sandler v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199; Klopper:
The Law of Third Party Compensation, 2
nd
ed, p 152-158
[2]
(200604/14)
[2016] ZASCA 6
(2 March 2016)
[3]
Kritzinger & Kritzinger v The Road Accident Fund 2009
(5K3) QOD 21 (ECD)
[4]
Walters v Minister of Safety and Security 2012 (6K3) QOD 11 (KZD)
[5]
2013 (6126) QOD 154 ECP, 2012 JDR 1444 (ECP)
[6]
2013 A 1001/13
[7]
supra
[8]
92004/9388) [2008] ZAGPHC 463
[9]
Supra, par 10, p 30
[10]
(2004/9388)
[2008] ZAGPHC 463
(2 September 2008)
[11]
2005
(5) SA 130
(CPD) at 151
[12]
1973
(2) SA 714
(W)
at
720F,
See also Manamela v Minister of Justice
1960 (2) SA 395
A on 404 E,
Rajah v Manning
1959 (1) SA 843
(N) at 836
[13]
Janse
Van Rensburg v Mahu Exhaust Cc And Another
2014 (3) SA 431
(NCK);
Keyter v De Wet NO
1967 (1) SA 23
OPA at 28A-B.)
[14]
Davehill
(Pty) Ltd and Others V Community Development Board
1988 (1) SA 290
(A) at 298 to 299.
[15]
Kritzinger and Kritzinger v Road Accident Fund 2009 (5K3) QOD 21
(ECD).
[16]
Walters v Minister of Safety and Security 2012 (61K3) QOD 11 (KZD).
[17]
Draghoender & 'n Ander v Padongeluksfonds [2006] JOL 18271 (SE).
[18]
Protea Accident Fund v Lamb
1971 (1) SA 530
(A) at 534H535A.
[19]
Minister of Safety and Security v Kruger 2011 (1) SACR (SCA) para
27.
[20]
Road Accident Fund v Marunga
2003 (3) SA 164
(SCA) para 27.
[21]
De Jongh v Du Pisanie N.O. 2005 (5) SA 457 (SCA).
[22]
Para 60.
[23]
Pitt v Economic Insurance Company Limited
1975 (3) SA 284
(N) at
287.
[24]
Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).
[25]
See fn 5 above.
[26]
Minister of Police v Dlhwati (20604/14)
[2016] ZASCA 6
(2 March
2016).
[27]
Pillay v Minister of Safety & Security 92004/9388 [2008] ZAGPHC
463
[28]
Para 10 of the judgment in Dlwati.
[29]
Protea Assurance Co Ltd v Matinise
1978 (1) SA 963
(A) at 976H;
Minister of Prisons and another v Jongilanga
1985 (3) SA 117
(A) al
124B.
[30]
See Attorney-General, Eastern Cape v Blom
1988 (4) SA 645
(A) at
670D - E.