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[2016] ZAGPPHC 488
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C.D.L v Minister of Safety and Security N.O and Another (13165/2015) [2016] ZAGPPHC 488 (22 June 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
13165/2015
Date: 22/6/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
C D
L PLAINTIFF
And
THE MINISTER OF SAFETY
AND SECURITY N.O FIRST
DEFENDANT
THE COMMISSIONER OF
THE SOUTH AFRICAN
POLICE SERVICES
N.O SECOND
RESPONDENT
JUDGMENT
PRETORIUS
J,
(1)
The plaintiff is a 38 year
old male, who resides at […] B. Avenue, Lynnwood Ridge, in his
brother’s house. There
is a separate flat on the property
which his brother rented to a Mr and Ms Grey (“the tenants”).
These tenants
absconded at some stage during May 2014. This
lead to the plaintiff’s brother launching an application for
the attachment
of the tenants’ property which was left in the
house and a court order to that effect, was granted.
(2)
On 25 July 2014 at
approximately 20h00 the plaintiff returned home and found a South
African Police Services vehicle parked in front
of the house and a
SAPS diplomatic security vehicle parked in the driveway of the
house. He immediately thought there was
a break-in at the
property. There were no occupants in the vehicles. There
was nobody in the house and he then went
to the separate flat.
He met the two tenants on the way carrying towels, bedding and
pillows to the bakkie.
(3)
The two tenants had
previously absconded as they had not paid the rent due to Mr E D L,
the plaintiff’s brother and owner
of the property. The
plaintiff phoned his brother and enquired whether the tenants had
permission to remove their property
from the flat, but was told by
his brother that he had obtained a court order and the property of
the tenants had been attached.
The plaintiff requested the
tenants to refrain from removing the property.
(4)
He entered the flat
through the kitchen and stood in the bedroom door. In the flat
were the two tenants, an unknown man and
two police officers.
The police officers were dressed in uniform. The one police
officer was wearing a bulletproof
vest. It was established
during the trial that the officer wearing the vest was Constable
Matjea. Mr D L, the plaintiff,
was still on the phone to his
brother and kept the phone open so that his brother could hear what
was taking place in the flat.
(5)
The plaintiff requested
the police officers’ names, who refused to give their names,
whilst the tenants and the third person
were loading the bed and the
mattress. The officers obscured their name tags, so that the
plaintiff could not ascertain their
names.
(6)
The SAPS then told the
plaintiff repeatedly to “fuck off”, while appearing to be
very aggressive. Constable Matjea
pushed the plaintiff out of
the door of the bedroom with both hands on the plaintiff’s
chest. The plaintiff ended the
phone call as the police officer
was spitting in his face, whilst still continuously swearing at him.
The plaintiff kept
quiet as he did not want to aggravate the
situation as he was scared of physical harm. He went to the
vehicles and tried
to take photos of the vehicles, where Constable
Matjea lunged at him and shook him by the left arm and threatened to
arrest the
plaintiff and to throw him into a cold police cell.
The officer had his hand on his gun and told the plaintiff that he
would
shoot him in the head, whilst still spitting in the plaintiff’s
face. The security firm’s members arrived, which
caused
the officer to back off.
(7)
The plaintiff’s
evidence was that he had feared for his life, due to the threats and
aggression displayed by the police officers.
The plaintiff went
to the police charge office, where he spoke to the senior officer on
duty, who was accompanied by a female officer.
The two
officers, who had been at the house, entered the police station and
the plaintiff pointed them to the senior police member,
who was not
interested to assist him.
(8)
The evidence of the
plaintiff was corroborated by Mr E D L, the plaintiff’s
brother, who gave evidence that he could hear
the police swearing at
the plaintiff on the phone by saying he must “fuck off”.
He heard this at least twice
while the phone was open. He
confirmed that the tenants had absconded and that he had obtained an
order from the Magistrate’s
Court attaching the contents of the
flat.
(9)
According to Constable
Matjea, he and Constable Makhubela had been instructed by Colonel
Solomons to assist the tenants to get their
property from the flat.
Furthermore the officer, Constable Matjea, testified that he had
called Colonel Solomons whilst the
altercation with the plaintiff
took place and requested his instructions. This evidence was
denied by the plaintiff.
Colonel Solomons was not called to
give evidence. No reason was given for Colonel Solomons not
confirming the evidence relating
to him in respect to the
instructions to Constable Matjea, Constable Makhubela and the
phone-call from Constable Matjea.
(10)
Constable Matjea’s
evidence was that he and Constable Makhubela assisted the tenants to
go to the house of Mr D L to fetch
food and clothing on the
instructions of Colonel Solomons. According to him the
plaintiff was aggressive and abusive towards
them which resulted in
him calling Colonel Solomons. He admitted that he was wearing a
bulletproof vest and had his service
pistol in its holster. He
further testified that the plaintiff had eventually, after an
altercation between him and the police
officers told the tenants to
take everything. This evidence was vehemently denied by the
plaintiff as he had instructions
from his brother that there was a
current court order attaching the contents of the flat.
Constable Matjea testified that
they did not see the plaintiff at the
police station after the incident on the particular day.
(11)
Although the plaintiff is
a single witness, his evidence was corroborated by his brother, who
testified that he had heard the police
officers swearing at the
plaintiff on the phone. It was never denied that the plaintiff
had to go to the police station on
four subsequent days to open a
case, as the senior officer at the station was reluctant to assist
him.
(12)
The plaintiff is a
slightly built man, who appeared to be nervous and emotional whilst
giving evidence. His evidence was coherent,
honest and he
answered all questions in a straightforward manner. I have no
doubt, from listening to his evidence and observing
his demeanour
whilst giving evidence that he was a truthful witness on whose
evidence the court can rely.
(13)
Constable Matjea on behalf
of the defendant, on the other hand, did not create the same
impression. He is a sturdy man who
was accompanied by Constable
Makhubela and was an officer of the law. Constable Makhubela,
who was at court, was not called
to give evidence as counsel for the
defendant informed the court that he did not regard it “prudent”
to call Constable
Makhubela. The court will draw a negative
inference where witnesses who are available, are not called to
testify on material
aspects in a case.
(14)
Similarly Colonel Solomons
was not called to testify. Constable Matjea did not create the
impression of an honest witness
who answered questions clearly and
concisely. His evidence that the plaintiff assaulted him by
poking him with his finger
was only elicited during cross
examination. This evidence is, in any event, contrary to the
plea of the defendants, where
it is stated that the plaintiff “
pushed
the defendants’ employees”
.
He hesitated under cross examination and his evidence that they were
not told of the court order, attaching the contents
of the flat,
cannot be true if the D L brothers’ evidence is accepted.
I cannot find that the defendants’ witness
testified truthfully
and with integrity. The problem with his evidence is that it
was not submitted in an open and honest
manner. The evidence of
both Colonel Solomons and Constable Makhubela could have confirmed
his evidence.
(15)
If I consider the
probabilities and improbabilities of what had transpired at the
plaintiff’s brother’s house, I find
the evidence of the
defendants so improbable that it can safely be disregarded.
(16)
I find that the plaintiff
was humiliated, defamed and degraded by the defendants’
employees when Constable Matjea spat in
his face, pushed him out of
the way, shook him by the arm whilst constantly swearing at him.
I further find that the police
officers threatened to shoot the
plaintiff in the head and to throw him into a cold cell at the police
station.
(17)
Dr Brits, a psychologist,
gave expert evidence on behalf of the plaintiff. His expertise
was admitted by the defendants.
His report was submitted to
court and admitted as evidence by agreement between the parties.
The defendants did not call
any expert to counter Dr Brits’
evidence. He further testified in court and started his report
by saying that he “
is
of the opinion that Mr D L is in desperate need of psychological
intervention”
.
In his opinion this was due to post-traumatic stress caused by the
incident on 25 July 2014.
(18)
Dr Brits has 30 years’
experience. He did certain psychometric tests and psychological
interviews. He consulted
with the plaintiff seven to eight days
after the incident and found: “
He
appeared totally devastated after the aggressive uncalled for
intimidation incident”
.
(19)
The plaintiff’s
evidence, confirmed by his brother, was that he was a sociable,
outgoing person before the incident, who was
highly motivated and
enjoyed his work. After the incident he had changed employment
three times as he could not concentrate
and was no longer motivated
to finish his studies as an accountant. According to the
post-traumatic stress trauma symptom
check list the plaintiff showed
typical post-traumatic stress syndrome, as well as anxiety and major
depression. The plaintiff
scored below average re forward
concentration, which explains the impact the incident has had on his
work capacity and his capacity
to concentrate and perform as can be
expected from an accountant.
(20)
Dr Brits was of the
opinion that the plaintiff needed 20 sessions of psychotherapy
immediately and that a further 30 sessions will
most probably be
required in future. Counsel for the defendants conceded that
should the court hold the defendants liable,
that an amount of
R50 000 should be awarded for psychotherapy. Dr Brits
found: “
He
is presently suffering from extreme stress and depression”
.
(21)
The plaintiff’s own
evidence was that he was virtually a recluse after the incident, who
stayed at home when not working.
He did not partake of any
social activities, was extremely anxious and depressed. He was
scared of the police after the manner
in which he had been treated as
he felt humiliated and vulnerable. His demeanour in court was
that of an emotional, terrified
young man who could not cope with the
trials and tribulations of life. He was severely traumatized.
QUANTUM OF GENERAL
DAMAGES:
(22)
The only injuries in this
matter are psychological injuries as a result of the shock and trauma
suffered by the plaintiff.
Dr Brits’ evidence stands
uncontested that the clinical syndromes, which includes
post-traumatic stress disorder and severe
depression, was caused by
the incident.
(23)
It
is difficult for any court to assess general damages in these cases,
even more so when psychological injuries are to be considered,
as is
particular to this case and the court has to consider the
circumstances of each case. See
Sadler
v Wholesale Coal
[1]
;
Klopper:
The Law of Third Party Compensation
[2]
.
(24)
Courts use previous awards
as a useful aid to assist a court in determining a fair and
reasonable award, but the comparison is not
a meticulous examination
of awards and the court has the ultimate discretion to decide what is
fair and reasonable in the circumstances
of each particular case.
(25)
In
Minister
of Safety and Security v Tyulu
[3]
Bosielo AJA set out:
“
In
the assessment of damages for unlawful arrest and detention,
it
is important to bear in mind that the primary purpose is not to
enrich the aggrieved party but to offer him or her some much-needed
solatium for his or her injured feelings
.
It is therefore crucial that serious attempts be made to ensure that
the damages awarded are commensurate with the injury inflicted.”
(Court emphasis)
(26)
In
De
Jongh v Du Pisanie NO
[4]
Brandt JA declared at paragraph 60:
“
Konserwatisme
by die toekenning van algemene skadevergoeding het sy oorsprong in 'n
behoefte dat daar ook teenoor die verweerder
billikheid moet geskied
en nie in die suinigheid van die gemeenskap teenoor die eiser nie.”
(27)
In
Road
Accident Fund v Marunga
[5]
Navsa JA referred to
Wright
v Multilateral Motor Vehicle Accident Fund (NPD) – Corbett and
Honey, The Quantum of Damages in Bodily and Fatal Injury
Cases
[6]
as follows:
“
[27] In the
Wright case (Corbett and Honey vol 4 E3-36) Broome DJP stated:
'I
consider that when having regard to previous awards one must
recognise that
there
is a tendency for awards now to be higher than they were in the past
.
I believe this to be a natural reflection of the changes in society,
the recognition of greater individual freedom and opportunity,
rising
standards of living and the recognition that our awards in the past
have been significantly lower than those in most other
countries.'”
(Court emphasis)
(28)
Awards
made by the High Court are routinely and significantly reduced on
appeal by the Supreme Court of Appeal. In the
Marunga
case
[7]
it was reduced from R375 000 to R175 000; in
Minister
of Safety and Security v Tyulu
[8]
it was reduced from R50 000 to R15 000; in
Minister
of Safety and Security v Kruger
[9]
from R300 000 to R20 000 and in
Minister
of Police v Dlwathi
[10]
from R675 000 to R200 000.
(29)
In
Pitt
v Economic Insurance Company Limited
[11]
Holmes J proclaimed:
“
I have only to
add that the Court must take care to see that its award is fair to
both sides - it must give just compensation to
the plaintiff, but
must not pour our largesse from the horn of plenty at the defendant's
expense.”
(30)
This
conservative approach was followed in
De
Jongh
[12]
and the other matters mentioned above.
(31)
In
the
Dlwathi
case
[13]
a globular amount was awarded in the 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
plaintiff receives.
(32)
The
court was referred to
Van
der Merwe v Minister of Safety and Security
[14]
.
The plaintiff in that matter was unlawfully arrested and detained in
police custody for two and a half hours. He was
severely
traumatised to such an extent that he had to receive psychiatric
treatment. He was awarded R25 000, which amounts
to
R36 000 in present terms.
(33)
In
Barker
v Road Accident Fund
[15]
the plaintiff claimed damages as a result of the death of her son who
was killed by a motor vehicle whilst cycling. She suffered
severe trauma and had on-going psychological difficulties following
her son’s death. An award of R40 000 was granted
by
the court, which amounts to R52 000 presently.
(34)
I have considered all the
arguments, evidence and submissions. I further take cognisance
that the defendant’s counsel
suggested that an amount of
general damages of R60 000 would be fair to both parties.
It was also conceded that the
plaintiff was entitled to future
medical expenses for 50 sessions of psychiatric treatment. As
the amount includes 30 sessions
for future treatment, if necessary, I
will apply a 20% contingency deduction on the R30 000 should
such treatment not be necessary.
(35)
I find that the
post-traumatic stress disorder and major depression were caused by
the conduct of the defendants’ employees
and therefor the
defendants are liable.
(36)
In the result the
defendants are ordered to pay the plaintiff:
1.
The sum of R60 000 as
general damages;
2.
The sum of R40 000 as
future medical costs;
3.
Costs, including the costs
of the expert witness, Dr Brits.
_____________________
Judge C Pretorius
Case
number :
13165/2015
Matter heard
on :
2 & 3 June 2016
For the
Plaintiff :
Adv M Coetsee
Instructed
by :
E D L Attorneys
For the
Respondent :
Adv M Vimbi
Instructed
by :
The State Attorney
Date of
Judgment :
22 June 2016
[1]
1941 AD 194
at 199
[2]
2
nd
Ed page 152 to 158
[3]
2009(5) SA 85 (SCA) at paragraph 26
[4]
2005(5) SA 457 (SCA)
[5]
2003(5) SA 164 (SCA) at paragraphs 27
[6]
Volume 4 at E3 – 36
[7]
Supra
[8]
Supra
[9]
2011(1) SACR 529 (SCA)
[10]
Supra
[11]
1957(3) SA 284 (N) at 287
[12]
Supra
[13]
Supra
[14]
Quantum of Damages Year Book Volume 6, K2-1 from the Northern Cape
High Court, Kimberly under case number 716/2007, delivered
on 27
November 2009
[15]
Quantum of Damages Year Book Volume 6, K3 from the Guateng Division
of the High Court, Pretoria, under case number 26292/2009,
delivered
on 6 May 2011