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[2016] ZAGPPHC 694
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Mokoena v Minister of Police (62475/2013) [2016] ZAGPPHC 694 (2 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 62475/2013
DATE:
2 AUGUST 2016
JOHANNES
MOKOENA
....................................................................................................
PLAINTIFF
AND
MINISTER
OF
POLICE
..................................................................................................
DEFENDANT
JUDGMENT
THOBANE
AJ,
[1]
On 25 September 2012,
the plaintiff, a police officer, was unlawfully arrested and detained
by members of the SAPS. The day before,
he had taken approximately 17
police dockets home in his private vehicle so he could work on them.
It was daily practice that he
would leave home early and drive to
work to park his motor vehicle. He would them make use of a state
vehicle during the day. His
wife would go to the police station and
using a spare key, take the vehicle to travel to work. On the day of
the incident that
gave rise to the suit, it was not different.
Plaintiff travelled to the police station and parked his motor
vehicle. A colleague
of his Mr Adriaan Mawelele (Mawelele), requested
plaintiff to accompany him to a murder scene which was situated
between KwaMhlanga
and Bronkhorstspruit. He left with his colleague
and the 17 dockets were left inside the motor vehicle, which was
parked at the
police station.
[2]
While at the murder
scene he received a call from a Colonel Vukeya (Vukeya) who summoned
him to the R25 road near Bronkhorstspruit
where his motor vehicle,
which at the time was driven by his wife, had been stopped at a
roadblock and the 17 dockets found after
the vehicle was searched. He
proceeded with Mawelele to the R25 where the roadblock was and on
arrival approached his wife who
was parked on the side of the road.
The roadblock was manned by members of the SAPS as well as traffic
police. He was then asked
why were The” dockets in his vehicle
and when he tried to explain that he was a police officer and that he
had placed the
dockets there, he was assaulted by approximately 10 to
15 policemen who slapped him, hit him with fists, kicked him, hand
cuffed
him and placed him at the back of the police van. He was
transported to the Bronkhorstspruit police station where he was
charged
with "interfering with police official duties" and
kept in a cell. He was released five hours later.
[3]
The above facts were not
contested by the defendant who conceded 100% liability. The matter is
proceeding before me only on quantum.
[4]
In the particulars of
claim, the plaintiff prays for compensation as follows;
Claim
1 Unlawful arrest and detention
Legal
expenses R10 000-00
Future
hospital or medical treatment R100 000-00
Past
and future loss of earnings and earning capacity R200 000-00 General
damages R200 000-00
Total
R510 000-00
£laim.2A2sault,
Future
hospital or medical treatment R200 000-00
Past
and future loss of earnings and earning capacity R200 000-00
General
damages R250 000-00
Total
R650.000-00
EVIDENCE
[5]
The plaintiff testified
in support of his claim and led evidence of five other witnesses
namely, his wife, Mawelele and three expert
witnesses.
5.1.
Plaintiff testified that
he was treated in the most appalling manner by the police. He had
been summoned to the scene where his
wife was stopped at a roadblock
and on arrival was assaulted for no apparent reason. He was hit on
his chest with fists and open
hands. His arms were twisted causing
severe pain on both shoulders. He was wearing a tie and was strangled
therewith. He was further
pushed towards the police van, while he was
being assaulted, and he fell. In this process he injured his right
thumb. His wife
was only three meters away from him when he was
assaulted. He described the conduct of the police as "showing
off and unprofessional."
They knew he was a policeman when they
were assaulting him in the described manner. His colleague Mawelele
tried to intervene but
was threatened with arrest. Plaintiff was
shoved into a police van and transported to Bronkhorstspruit police
station where he
was kept in a police cell until his release on
warning five hours later. The following day he appeared in court and
as he put it,
the matter was not put on the roll. In reality the
prosecutor declined to prosecute.
5.2.
Following the incident
he is afflicted by chronic pain. He struggles to sleep, he is
forgetful, he is lethargic and as a result
takes a tot'
1
of energy drinks. His work performance following the incident
declined to an extent that he was forced to become a full time POPCRU
shop steward. After the incident he was attended by Dr Mashebe who
prescribed pain medication for him. He was a very active person
prior
the incident and participated in soccer. He stated further that his
family was taking strain. Before the incident he was
very serious
with his work. He used to take dockets home so as to give them proper
attention. He lost such motivation. Not only
did he lose motivation
he also lost strength in his arms. He is of the view that he is too
weak to keep up with the rigors of detective
work which require that
force be used from time to time when effecting an arrest.
5.3.
During cross examination it was put to him that he harbored
resentment towards the police who previously charged him with
misconduct. He stated that he was angry at the police and seeing the
police who did this to him go about their businesses made him
feel
like there was no justice. He was aggrieved at this state of affairs.
It was his wish to get further medical attention but
he was not a
member of a medical scheme and he did not have resources to get
further medical attention. That is why he resorted
to
self-medication. A further impediment was that Dr Mashebe wanted to
refer him for further medical attention however, all the
medical
practitioners he contacted refused to take on the plaintiff as a
patient for the reason that the SAPS was slow in paying
them. It was
put to him that the injuries were not as serious as the plaintiff
made them out to be that is why in four years since
the injury he
never went to any doctor or to even a provincial hospital. Hie stated
that he was resilient and was trying to cope
with the pain using
methods as advised at the ZCC church of which he is a member as well
as self medication.
[6]
Adriaan Mawelele
testified that he was a police officer with 27 years’
experience. He confirmed that he was in the company
of the plaintiff
when they went to the scene where the plaintiffs wife had been
stopped at a roadblock. On arrival the plaintiff
went to his wife to
establish what was going on. A certain Captain Borman shouted in an
aggressive manner at the plaintiff and
asked him if the car in which
the dockets were found belonged to him. The plaintiff informed him
that he had been called to the
scene by Vukeya and that he wanted to
talk to him. Vukeya came and there was an argument between him and
the plaintiff. The plaintiff
tried to produce his appointment
certificate but they would have none of it. There were about 10
police officers who were grabbing
and shoving him. Eventually he
managed to show them his appointment certificate. They took away his
police issued firearm and they
assaulted him. He was then handcuffed
and dragged to the police van which was parked nearby, while they
were busy assaulting him.
He tried to intervene but was threatened
with arrest. The plaintiff was thrown at the back of the police van
and they drove off.
The plaintiffs wife was witnessing the incident
as it unfolded. He confirmed that after the incident the work
performance of the
plaintiff deteriorated to the ' point where their
commander at the time, a Captain Chauke, complained.
[7]
The plaintiffs wife,
Thandiwe Masilela testified that she was stopped at a roadblock
driving the family vehicle in which the dockets
were. She was made to
open the boot where the police manning the roadblock found the
dockets. She was told to call the plaintiff
on her cellphone and when
she was talking to him Colonel Vukeya grabbed the cellphone from her
and spoke to the plaintiff. The
police threatened to charge her. The
dockets, which were in a backpack were removed by another police
official who was busy stopping
vehicles at the roadblock with the
dockets on his back. When the plaintiff arrived in the company of
Mawelele he came over to her
in the car. The police officer who had
earlier taken possession of the dockets came over and asked him why
he left the dockets
in the vehicle. Vukeya also came and they grabbed
the plaintiff and started assaulting him. He was further strangled
with his tie
to a point where it was torn apart. Mawelele tried to
intervene but was told he would be charged. The traffic police who
were involved
in the roadblock were watching and so were passing
motorists. The plaintiff was bungled into the back of the police van
and taken
to the police station. She was also told to drive to the
police station and on arrival both of them were charged and detained
in
separate cells.
[8]
The expert witnesses
testified as follows;
8.1.
Dr. Booyse an Orthopedic
Surgeon based at Zuid Afrikaans Clinic in Pretoria, who has been in
practice for 54 years, listed his impressive
Curriculum Vitae. He
stated that on the 20th June 2Q16 he consulted with and examined the
plaintiff. He then produced a report
which was admitted into evidence
as exhibit "A". He stated that he had observed injury on
both shoulders which were brought
about by twisting of the arms
during the assault. He also observed that there was limited mobility
of the arms when an attempt
is made to lift them either in front or
on the sides. Having examined the shoulders clinically he concluded
that the lack of mobility
was consistent with full thickness tear of
a tendon in the left shoulder and as well a footprint tear in the
biceps area. In short,
the ligaments in the shoulders were ruptured
and the tendons injured. On conducting an MRI arthrogram he confirmed
that the disabilities
in the shoulder were trauma related. He further
diagnosed pain and discomfort in the right thumb as well as lower
backache. The
sequelae of the thumb injury is that plaintiff has lost
50% lift power in the right hand.
During
cross examination he was questioned about whether he would classify
the injuries sustained by the plaintiff as minor, moderate
or severe.
He stated that he can classify them as moderate if with severe there
could potentially be loss of life or limb, which
was not the case in
this matter. According to him the neck injury was between minor and
moderate. The shoulder injury was moderate
in that the injury could
improve with surgery. The thumb injury was between moderate and
severe. He further stated that since there
was no scientific measure
for pain. The person feeling the pain is the only person that can
convey the extent thereof. The difficulty
in these cases, so he
testified, is that some persons are more tolerant of pain than
others. He concluded by stating that the plaintiff
was not a
candidate for lifelong physiotherapy and that he definitely needed
surgery to the thumb and to the shoulders.
8.2.
Elton Bloye runs a
Neuropsychology and Medico-Legal Practice in Johannesburg. He put his
credentials on record and stated that he
interviewed the plaintiff
about the incident and recorded the sequelae, his behaviour,
observations, cognitive test results detailing
the trauma, depression
and pain associated therewith. He prepared a report which was entered
into evidence and marked exhibit "B".
According to him the
plaintiff has psychological symptoms of chronic pain to his soft
tissue. He observed that there was lack of
motivation and that the
plaintiff was irritable. In his expert opinion the plaintiff
exhibited classic symptoms of post traumatic
stress disorder which he
can describe as mild to moderate. He also noted that the plaintiff
has unresolved anger issues towards
the SAPS which have their origins
from a previous incident. He further observed that at times there was
an element of symptom exaggeration.
What was presented to him, so he
testified, was much more severe than what was contained in the J88
medico-legal report. He confirmed
that the plaintiff was withdrawn in
his association with the police because of anger and fear. He has
lost his amenities of life
as a result his quality of life has been
negatively impacted upon. In his view plaintiff will benefit from
medical treatment as
his ability to use both hands pain free is not
there.
During
cross examination he stated that the test he conducted to establish
if the plaintiff was faking the extent of the injury
were
inconclusive. He stated that the plaintiff would not be able to
function optimally at the station where he was held or where
the
police officers who were involved in the assault were stationed. He
further stated that the plaintiff practices avoidance measures
to
external stimuli. He was referred to a report by Dr Booyse, exhibit
"A" in terms of which the injuries were described
as mild
to moderate. He stated that this was congruent with minor to severe
and he agreed with such characterization.
8.3.
Dr Fine, a Specialist
Psychiatrist with 40 years experience, testified that on the 20th
June 2016 he consulted with the plaintiff
and interviewed him. In his
report, which was admitted into evidence as exhibit "C",
and the purpose of which was to
ascertain if plaintiff suffered from
psychiatric sequelae from the incident, he sketched the background of
the plaintiff, his account
of the incident as well as his physical
and emotional state. He concluded that the plaintiff suffered from
post traumatic stress
disorder. He stated that the symptoms that the
plaintiff presented were chronic and were causing considerable
emotional distress
and pain. He recommended that the plaintiff
undergo medical treatment as well as psychotherapy.
ANALYSIS
[9]
I
n Minister of Safety and Security v Seymour
2006 (0) SA 320
(SCA)
at
paragraph [20] it was stated that:
Y
20]
Money can never be more than a crude solatium for the deprivation of
what in truth can never be restored and there is no empirical
measure
for the loss. The awards I have referred to reflect no discemable
pattern other than that our courts are not extravagant
in
compensating the loss. It needs also to be kept in mind when making
such awards that there are many legitimate calls upon the
public
purse to ensure that other rights that are no less important also
receive protection.”
[10]
In
Minister of Safety and Security v M Tyulu
2009 (5) SA 85
(SCA)
Bosielo JA said the
following at paragraph [26] of the judgment:
"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. However, our courts should be
astute to ensure that the awards they make for
such infractions
reflect the importance of the right to personal liberty and the
seriousness with which any arbitrary deprivation
of personal liberty
is viewed in our law. I readily concede that it is impossible to
determine an award of damages for this kind
of injuria with any kind
of mathematical accuracy. Although it is always helpful to have
regard to awards made in previous cases
to serve as a guide, such an
approach if slavishly followed can prove to be treacherous. The
correct approach is to have regard
to all the facts of the particular
case and to determine the quantum on such facts".
[11]
In
Masisi v Minister of Security and Another
2011 (2) SACR 262
(GNP)
at 267 paragraph [18] Makgoka J held as follows:
"The
right to liberty is an individual’s most cherished right, and
one of the foundational values giving inspiration
to an ethos
premised on freedom, dignity, honour and security. Its unlawful
invasion therefore strikes at the very fundament of
such ethos. Those
with authority to curtail that right must do so with the greatest of
circumspection, and sparingly In
Solomon
v Visser and Another
1972 (2) SA 327
(C),
at
345C-E, it was remarked that, where members of the police transgress
in that regard, the victim of abuse is entitled to be compensated
in
full measure for any humiliation and indignity which result. To this
I add that, where an arrest is malicious, the plaintiff
is entitled
to a higher amount of damages than would be awarded, absent malice."
[12]
With
regard to deprivation of freedom the following was said in Takawira v
Minister of Police (A3039/2011) [2013] ZAGPJHC 138 (11
June 2013):
“
29.
A delictual claim for damages may also be brought in terms of Section
12(1) (a) of the Constitution. By definition such a claim
is based on
the unreasonable and unjustifiable infringement of an individual’s
right not to be arbitrarily deprived of freedom
or to be so deprived
without just cause. See
Zeeland
v Minister of Justice and Constitutional Development
&
Another,
[2008] ZACC
3
;
2008
(4) SA 458
(CC),
at
paras 24, 25 and 35....42. It is trite that an enquiry into unlawful
detention (as with arrest) seeks to determine the extent
to which the
various affected rights of personality were impaired and their
duration. The enquiry involves both a subjective element
based on the
emotional effect of the wrong committed to the plaintiff (such as the
humiliation or anguish of suffering the injustice,
the loss of
self-esteem and self- respect) and an objective impairment based on
the external effects of the wrong (such as loss
of reputation in the
eyes of others). ”
[13]
With all the above in
mind, a proper figure for compensation must be determined ever
mindful of what was stated in Minister of Safety
and Security v
Seymour, supra, namely;
"[17]
The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty.
The facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to
what other courts
have considered to be appropriate but they have no higher value than
that."
[14]
Counsel for the
plaintiff argued that expert evidence in support of quantum had been
led and that there was no counter evidence
from the defendant side.
He submitted that in view of this, there was no reason the court
should deviate from the guide provided
by the experts. On the other
hand, counsel for the defendant referred me to a few decisions some
quoted in the Quantum Yearbook
and argued that the amounts mentioned
in the particulars of claim were grossly exaggerated and further that
the plaintiff had over
exaggerated his injuries and the resultant
pain. I propose to deal briefly with the cases the court was referred
to before dealing
with the circumstances of this case and what I
consider to be fair compensation.
14.1.
Peterson v Minister of
Safety and Security 2011 (6K6) QOD 1 (ECG), the plaintiff was at home
when about 10 policemen barged into
his home and demanded firearms.
They did not have a warrant and they proceeded to assault him by
hitting him, kicking him and suffocating
him with a refuse bag. He
was further detained for four days after which he was released
without being charged. The final award
was R100 000-00 for the
arrest, R150 000-00 for the detention and R150 000-00 for the
assault. The plaintiff did not testify in
support of judgment, which
was by default, but submitted an affidavit No expert evidence was
led.
14.2.
In Ngema v Minister of
Police (05081/2011) [2012] ZAGPJHC 104, the plaintiff was arrested by
a group of about 8 police officers
who proceeded to assault him by
pulling him, hitting and kicking him. They then dragged him to the
police van causing injury to
his hands and knees in the process. He
was let go momentarily but was again rearrested and taken to the
police station where
he was charged with interference with police
duties. He was kept in a cell for less than 3 hours whereafter he was
released and
told to appear in court the following day. The following
day he was told that his case will not be proceeding. The plaintiff
sustained
small hemorrhage on the eyes, tenderness of neck and right
lower chest, 2 small lacerations on the hand and bruising of the knee
and leg. There was no evidence led of the sequelae of the incident
and or injuries. Oosten J awarded a globular amount of R40 000-00.
14.3.
In Wagner v Minister of
Defence (46923/2010) [2012] ZAGPPHC 59, the plaintiff claimed for two
incidents. The first being an arrest
after the plaintiff had
allegedly driven over a foot of a military police officer who had
been directing traffic. He was detained
for few hours and later that
day he was released on bail. He appeared in court a few times and
eventually charges were withdrawn
against him. The second incident
concerned an arrest after he had been caught taking pictures at the
military premises. He was
taken to the military police station where
he was detained. At the military police station he was grabbed,
pushed, throttled and
threatened with an assault. A statement was
made from the bar that the detention was for a duration of 5 and a
half hours. The
plaintiff did not testify in the case and there was
no evidence of any sequelae arising from the incident. Makgoka J
awarded the
sum of R40 000-00 for the first incident and R20 000-00
for the second.
14.4.
In Lamola v Minister of
Safety and Security (2007/26594) [2012] ZAGPJHC 120, the plaintiff
was shot, arrested, detained and maliciously
prosecuted. He sustained
serious injuries as a result of the bullet wound. He was hospitalized
for two weeks then he was in police
lock up for a further two months.
He was also kept in custody awaiting trial for 9 months. In his claim
he split general damages
three ways, for. the assault, the arrest and
detention as well as the malicious prosecution. The total claimed
amount for general
damages was R800 000-00. He further claimed future
medical expenses, loss of earnings and loss of future earning
capacity. Although
he had claimed the total amount of R1.4 million he
was awarded R1 million. Sutherland J took the approach that, in the
circumstances
of that case, the general damages not be split up.
Counsel for the defendant submitted that such an approach should like
wise be
adopted in casu.
He
relied on the dicta, below, by Sutherland J namely;
"[5]
At the outset it is necessary to state that the fragmented
articulation of the damages claims, as set out above, is unhelpful.
Although no individual head is unfounded, the overlapping of the
elements that constitute some of the heads make it impractical
to try
to assess distinct awards for ring-fenced categories. Contumelia
pervades the entire sweep of the proven misconduct by the
police. The
detention is germane to his pain and suffering under several heads.
The claim for malicious prosecution addresses indistinguishably
the
self-same sequelae of the arrest and detention and can be subsumed
under general damages in an appropriate amount
."
No
two cases are ever the same. It is when the court exercises its
discretion that a preferred approach can be adopted. It is clear
from
the above dicta that Sutherland J was constrained, in the
circumstances of the case before him, to make a proper determination
about a suitable award for general damages, hence his comments. Save
for the approach to be adopted, this case does not have compatible
features to the determination of damages in casu.
[15]
The SCA confirmed, on
appeal, an award of R50 000-00 granted in the Cape High Court in the
matter of Minister of Safety and Security
& another v Swart
(194/11)
[2012] ZASCA 16
(22 March 2012). The facts of the case, in
so far as the arrest and detention is concerned, have some
similarities to this matter.
Swart was a policeman who was arrested
by a senior officer, a police Captain, allegedly for driving a motor
vehicle while under
the influence of intoxicating liquor. He was
forcibly bungled to the back of a police van and taken to the police
station where
he was detained. The police station where he was
detained was the station where he was based. He spent four and a half
hours in
custody. The following day blood results revealed that his
blood alcohol volume was within legal limits. The prosecutor issues a
nolle prosequi
certificate.
The court highlighted a few aggravating aspects of the experience as
follows;
"The
respondent is a police officer, a sergeant of some 16 years’
standing, with both the second appellant and Nel being
his
subordinates. They were all stationed at the same police station. The
manner in which he was physically manhandled and thrown
into the
police van was truly demeaning. This happened in front of his son and
his commanding officer. Whilst at the charge office,
he was taunted
and ridiculed in the presence of junior officers. The fact that some
police officers were asking who was going to
have the privilege of
taking the respondent to the cells makes the whole arrest and
detention even more demeaning. Cleariy his
dignity and reputation was
gravely impaired. He spent four and a half hours in detention for no
good reason."
[16]
Mothle
J in Ngobeni v Minister of Police, case no. 49069/2013, a
judgment
delivered in this court on 09/02/2016, granted an award of R49 000-00
for the arrest, detention and assault of the plaintiff.
In that
matter the plaintiff was a trainee Metro Police officer who was
arrested and assaulted by about 10 members of the SAPS.
All this took
place in full view of members of the public. He was transported in a
police vehicle to the police station where he
was detained in a
holding cell. He was released three hours later when there was
intervention by a senior Metro Police officer.
Although he sustained
injuries, they were minor and there was no evidence of any sequelae
arising therefrom. The merits were not
contested.
[17]
The arrest of the
plaintiff was undoubtedly a violent one. The defendant conceded the
merits in total. The recount of the arrest
by the plaintiff supported
by both his wife and his colleague with whom he was on the day must
therefore stand. The version is
that he was swamped by between ten
and fifteen policemen who assaulted him. He was pulled and pushed and
forcibly thrown to the
back of a police van. In that process he fell
and injured his right thumb. He was further strangled with his tie to
a point where
the tie was torn. Both his arms were twisted. All this
took place one to three meters away from his wife and his colleague.
There
were traffic police officers who were watching this, there were
also passing motorists who had a full view.
THE
DETENTION
[18]
The plaintiff together
with his wife were detained in separate cells at the Bronkhorstspruit
Police Station. This is the same police
station where the plaintiff
was based and where his wife had earlier that day fetched the family
vehicle in which the dockets were.
It would have been extremely
embarrassing for the plaintiff to be detained at the police station
where he was based and where no
doubt he would have previously
detained many a suspect. What I found lacking in the testimony of the
plaintiff, is his description
of the conditions in which he was held
and how they impacted on him. I am however prepared to assume, in his
favor, that the conditions
were not so favorable. The fact that he
was aware that his wife was detained in a separate cell at the same
police station would
have brought on more anxiety and discontent to
him.
[19]
The expert witnesses
called by the plaintiff detailed the injuries sustained. While these
may appear to be insignificant, the sequelae
thereof, according to
the experts is massive. No evidence was led on behalf of the
defendant. The line of questioning of counsel
for the defendant as
well as submissions to the experts suggests that they took issue with
the extent to which the plaintiff seems
to have been immobilized by
the injuries which to them seem minor. In this regard it was argued
that the plaintiff was exaggerating
the extent of the injuries. The
experts detailed the post traumatic stress disorder from which the
plaintiff was suffering. The
orthopedic surgeon, Dr Booyse detailed
the test conducted by him as well as his observation about the extent
to which the plaintiff
was afflicted by pain. He was unmoved during
cross examination about the postulation that the plaintiff was
exaggerating his pain.
Nothing was forthcoming to counter his stance.
The same can be said of the testimony of the clinical psychologist
Bloye. Although
much was made by defendant's counsel about the fact
that he stated on numerous occasions in his report that there may be
an element
of exaggeration, in the end he stated that there was no
conclusion to the effect that the plaintiff was exaggerating the
extent
of the pain he was afflicted by. There is no basis for this
court to deviate, significantly, from the recommendations of the
experts,
ever aware of what was said in Schneider NO and Others v AA
Another
2010 (5) SA 203
(WCC) Davis J quoting: Zeffertt, Paizes &
Skeen The South African Law of Evidence at 330, citing the English
judgment of National
Justice Compania Naviera SA v Prudential
Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd's
Rep 68 at 81, set
out duties of an expert
witness thus:
T
V
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert, uninfluenced
as to form
or content by the exigencies of litigation.
(2)
An
expert witness should provide independent assistance to the court by
way of objective, unbiased opinion in relation to matters
within his
expertise...An expert witness should never assume the role of an
advocate.
(3)
An
expert witness should state the facts or assumptions upon which his
opinion is based. He should not omit to consider material
facts which
could detract from his concluded opinions.
(4)
An
expert witness should make it clear when a particular question or
issue falls outside his expertise.
(5)
If an
expert opinion is not properly researched because he considers that
insufficient data is available, then this must be stated
with an
indication that the opinion is no more than a provisional ones.”
Throughout
the testimony of the experts, I did gain the impression that they
went beyond their , duties. The dicta by Davis J is
therefore
apposite;
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the
exDert
from
orovidina the court with as objective and unbiased opinion, based on
his or her expertise, as possible or a particular case.
An expert is
not a hired gun who dispenses his or her expertise for the purposes
of a particular case. An expert does not assume
the role of the
advocate, nor gives evidence which goes beyond the logic which is
dictated by the scientific knowledge which that
expert claims to
possess.”
[20]
All the experts make
provision in their reports, for future medical treatment that the
plaintiff requires. The legal expenses pertaining
to the plaintiff
have been proven. It is also my considered view, and this came across
convincingly during the testimony of Dr
Booyse, that the plaintiff
will require repair surgery to particularly the shoulders and the
right thumb. He will further require
both psychiatric treatment as
well as psychotherapy. I see no reason why the general damages, in
line with the submission by defendant's
counsel, should not be
considered together. These would encompass pain and suffering, loss
of amenities of life, deprivation of
freedom and/or liberty,
psychological harm and contumelia.
[21]
The award due to the
plaintiff can be summarized as follows;
Legal
Expenses R2 000-00
General
Damages R100 000-00
Future
Medical Expenses R250 000-00
[22]
Accordingly, judgment is
granted in favor of the plaintiff against the defendant for;
21.1.
Payment of the sum of
R352 000-00;
21.2.
Costs
of suit on a party and party scale.
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT