About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 704
|
|
R.N.M v T.T and Another (64816/2013) [2016] ZAGPPHC 704 (16 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
64816/2013
Date: 16 August 2016
Not reportable
Not of interest to
other judges
Revised.
In the matter between:
R N
M PLAINTIFF
And
T
T FIRST
DEFENDANT
L F
M SECOND
DEFENDANT
JUDGMENT
PRETORIUS
J,
(1)
The plaintiff is a 36 year
old female who is claiming an amount of R1 million in respect of
damages she suffered when the defendants
assaulted her on 7 October
2012. The two defendants are two females.
(2)
The defendants pleaded to
the particulars of claim and pleaded that the claim be dismissed with
costs. On 8 October 2015 the
notice of set down was served on
the defendants’ attorneys, informing the defendants that the
matter would be heard on the
trial roll on 2 August 2016. The
defendants did not appear to defend the matter on 2 August 2016 and
the trial commenced
on an unopposed basis.
(3)
The plaintiff’s
attorney served a notice in terms of Rule 35(9) on the defendants’
attorney on 11 February 2016, informing
the defendants’
attorney that the plaintiff intended to use the video footage, taken
during the incident, as evidence at
the trial. The defendants
did not note any objection to the video footage being used at trial
(4)
The plaintiff’s
evidence was that on the morning of 7 October 2012 at approximately
05h30 she woke up at the second defendant’s
husband’s
house where she had gone to bed with the second defendant’s
husband. She admitted to having an affair
with the second
defendant’s husband, X. At the time she was naked, except
for a panty. She heard the garage door
opening and X ran out to
check what was happening. She then heard the voices of two
women. The two defendants then
entered the bedroom. The
first defendant grabbed the plaintiff by her hair and insulted and
assaulted her.
(5)
X held the second
defendant back, whilst the first defendant was hitting the plaintiff
with open hands and dragged her outside by
pulling her by her
breast. X told her to go to the vehicle parked outside, but the
defendants grabbed the car keys from X.
(6)
After running to another
house, the defendants pursued her and tore off her panty, which left
her completely naked. The first
defendant got hold of a sjambok
and started hitting the plaintiff with the sjambok all over her body,
whilst the second defendant
was taking photos of the assault on the
plaintiff. The second defendant fetched the car and the
plaintiff was placed in the
car, still being assaulted by the
defendants. The second defendant was driving the car and the
plaintiff was taken to X’s
mother who told the defendants to
take the plaintiff back, to fetch her clothes, which they did.
This assault lasted until
09h00.
(7)
The plaintiff’s
evidence was that she was badly affected by this incident and had to
go for counselling. She is presently
scared to be seen in
public as she experiences people whispering about her and laughing at
her. The plaintiff was further
humiliated as photos of the
assault on her, being naked, were published on the front page of the
Daily Sun newspaper on 31 October
2012.
(8)
The court watched the
video of the assault. It is clear that it was not only a brutal
assault by sjambok, but it was extremely
humiliating as the plaintiff
was chased down the street without any clothes and then forced into a
car, while still being assaulted.
There were several people on
the street watching the plaintiff being assaulted, forced into the
car, naked and driven away.
The evidence shows that the second
defendant, X’s wife, did not assault the plaintiff to the same
extent as the first defendant.
The first defendant was vicious
and relentless in her assault and humiliation of the plaintiff.
(9)
The plaintiff was an
honest witness, who was humiliated and ashamed to testify in open
court to such an extent that she was unable
to watch the whole video,
but only identified it as the video taken at the time. She was
an impressive witness and I do not
hesitate to accept her evidence,
which was further corroborated by the contents of the video.
(10)
There was no reason for
the two defendants’ actions against the plaintiff. The
duration of this very public ordeal was
at least three hours and was
further aggravated by the publication on the front page of the Daily
Sun and the video that was placed
on social media.
(11)
The
amount of quantum in a matter like this is in the discretion of the
court, who has to make a value judgment. In
Minister
of Safety and Security v Seymour
[1]
the court held:
“
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 discernible pattern other
than that our courts are not extravagant
in compensating the loss.”
(12)
In
Minister
of Safety and Security v Tyulu
[2]
it is set out that:
“…
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.”
(13)
In the present matter the
assault and nakedness in public were very serious, but to add insult
to injury, the whole incident was
rehashed and appeared on the front
page of the Daily Sun newspaper three weeks after the incident had
taken place and was distributed
through social media. It was
evident that the plaintiff was still suffering from this humiliation
when giving evidence, some
four years after the incident had taken
place.
(14)
I agree with Mr de Klerk,
counsel for the plaintiff that the first defendant was the person who
had inflicted the worst humiliation
by hitting the plaintiff with the
sjambok, even whilst loading her naked body into the second
defendant’s car. The
second defendant was also
threatening the plaintiff and refused to let the plaintiff dress and
drove her in her naked state to
X’s parents’ house.
She was, however, not the main perpetrator.
(15)
I
have considered all the facts, the evidence as presented by the
plaintiff and the video footage and can come to no other conclusion
but that the plaintiff suffered humiliation, pain and indignity at
the hands of the two defendants. The defendants close
not to
defend the matter at trial and therefor I have to decide what is a
fair, reasonable and adequate
solatium
in these circumstances. I have taken note of Holmes J’s
dictum
in
Pitt
v Economic Insurance Co Ltd
[3]
:
“
However,
no better system for assessing damages has yet been evolved, and the
Court has to do the best it can with the material
available, even if,
in the result, its award might be described as an informed guess. 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
.”
(Court emphasis)
And
Brand AJ in
De
Jongh v Du Pisanie NO
[4]
:
“
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
”
(Court emphasis)
(16)
I have also considered
awards made in comparable cases and take note of Mr De Klerk’s,
counsel for the plaintiff, argument
as to what should be fair in
these circumstances.
(17)
In the result I make the
following order:
1.
The first defendant is
ordered to pay the plaintiff damages in an amount of R150 000;
2.
The first defendant is
ordered to pay interest on the amount of R150 000 at the rate of
9%
a tempore morae
;
3.
The second defendant is
ordered to pay the plaintiff damages in the amount of R15 000;
4.
The second defendant is
ordered to pay interest on the amount of R15 000 at the rate of
9%
a tempore morae
;
5.
Costs of suit, the one to
pay, the other to be absolved.
_____________________
Judge C Pretorius
Case
number
: 64816/2013
Matter heard
on
: 2 August 2016
For the
Plaintiff
: Adv P De Klerk
Instructed
by
: Roets & Van Rensburg Inc.
For the
Defendants
: No appearance
Instructed
by
:
Date of
Judgment
: 16 August 2016
[1]
2006(6) SA 320 (SCA) at paragraph 20
[2]
2009(5) SA 85 (SCA) at paragraph 26
[3]
1957(3) SA 284 (D) at 287 E-F
[4]
2005 (5) SA 457
(SCA) at 476 D-E