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[2016] ZAGPPHC 581
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Augustine and Others v Minister of Safety and Security (A315/2015) [2016] ZAGPPHC 581 (26 April 2016)
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Not
reportable
Not of
interest to
other
Judges
CASE NO:
A315/
2015
DATE: 26 APRIL
2016
In the matter between:
RAYMOND
AUGUSTINE
First Appellant
SHARON
AUGUSTINE
Second Appellant
JARRED
SHELDON
AUGUSTIN
Third Appellant
CELINE
JANINE
AUGUSTINE
Fourth Appellant
and
MINISTER
OF
SAFETY
AND
SECURITY
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,
[1]
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
[2]
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
Oraghoender v POF
[3]
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
Oraghoender
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.
[4]
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.
[5]
[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, I am 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,
[6]
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.
[7]
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.
[8]
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.
9
[9]
[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,
[10]
(R50 000 to R15 000);
Minister of Safety and
Security
v
Kruge
[11]
1
(R300 000 to R20
000)
and
Minister of Police v
Dlwathi.
[12]
(
R675
000
to R200 000).
[14] In
Dlwathi,
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
Pi/lay
v Minister
of
Safety
and Security.
[13]
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
Pi/lay
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
Olwati,
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 Dlwathi'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.
[14]
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.
I 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.
[15]
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.
[16]
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 R 100 000 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.
TM
Makgoka
Judge
of the High Court
[1]
Kritzinger and Kritzinger v Road Accident Fund 2009 (5K3) 000 21
(ECO).
[2]
Walters
v Minister of Safety and Security 2012 (6K3) QOD 11 (KZD).
[3]
Oraghoender & 'n Ander v Padongeluksfonds [2006] JOL 18271 (SE).
[4]
Protea Accident Fund v Lamb
1971 (1) SA 530
(A) at 534H535A.
[5]
Minister of Safety and Security v Kruger 2011 (1) SACR (SCA) para
27.
[6]
Road Accident Fund v Marunga
2003 (3) SA 164
(SCA) para 27.
[7]
De Jongh v Ou Pisanie N.O. 2005 (5) SA 457 (SCA).
[8]
Para 60
[9]
Pitt v Economic Insurance Company Limited
1975 (3) SA 284
(N) at
287.
[10]
Minister of Safety and Security v Tyulu 2009 (5) SA 85 (SCA).
[11]
See fn 5 above.
[12]
Minister of Police v Olhwati (20604/14)
[2016] ZASCA 6
(2 March
2016).
[13]
Pi/lay v Minister of Safety & Security 92004/9388 [2008] ZAGPHC
463.
[14]
Para 1O of the judgment in Dlwati.
[15]
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) at
1248.
[16]
See Attorney-General, Eastern Cape v Blom
1988 (4) SA 645
(A) at
6700 - E.