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 770
|
|
GFE Blything v Minister of Safety and Security and Another (8281/2013) [2016] ZAGPPHC 770 (31 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:31/8/2016
CASE
NO: 8281/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
GFE
BLYTHING
…..............................................................................................
PLAINTIFF
AND
THE
MINISTER OF SAFETY AND
SECURITY
....................................
FIRST
DEFENDANT
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
.............................................
SECOND
DEFENDANT
JUDGMENT
LEDWABA,
DJP
Background
[1]
The plaintiff brought a claim for damages arising from wrongful
arrest and detention by a member of South African Police Service,
[2]
On the December 2011 the plaintiff was on routine patrol duties for
his neighbourhood watch when he confronted a suspect which
assaulted
him. The Plaintiff fired a single shot at the suspect, in
self-defence. The suspect died as a result of the gunshot.
The
plaintiff was subsequently arrested and detained by members of the
SAPS acting within the course and scope of their duties.
The
Plaintiff was 66 years old pensioner when the said incident occurred.
[3]The
plaintiff was initially taken to Akasia police station and later
transferred to Soshanguve police station. On 19 December
2011, the
plaintiff was released without formally charged.
Procedural
history:
[4]
Plaintiff duly served
notice in terms of section 3(1) of the Institution of
Legal Proceedings Against
Certain
Organs
of State Act
[1]
(herein after
referred to as "Act 40 of 2000") on 7 June 2012.
[5]
Summons and particulars of claim were served on the defendants on 8
February 2013 in which an amount of R150 000.00, as reflected
also in
the statutory demand, was claimed as well as, at prayer 2, "
interest
on
the above amount
at the rate of
15.5% per annum calculated from the date of demand until date of
payment'
.
[6]
On 17 March 2015, being one day before the matter was set down for
trial, it was agreed
inter alia
that the defendants would not
call any witnesses, and that counsel would agree on the quantum of
damages at R100 000.00. The defendants
would pay the plaintiffs cost
of the action, including the qualifying fees of the two experts.
Issue
in dispute:
[7]
On 18 March 2015, both parties addressed argument before e in regard
to the issue of which date was interest payable in the
matter. The
defendants' counsel submitted that interest is payable on the agreed
amount from the date of the court's order when
the court makes an
order I respect of the amount of damages. Whilst submitted on behalf
of the plaintiff that interest is payable
on the agreed amount from
date of demand, being the date on which the notice in terms of
section 3(1) of Act 40 of 2002 was served
on the defendants, the date
being 7 June 2012.
Defendants'
submission:
[8]
The defendant's counsel relied on
Takawira
v The Minister of Police
[2]
in which Splig
J
and
Mlonzi
j
adopted
the
view
that
interest,
specifically
in
cases
of
wrongful
arrest,
dealing
with
unliquidated
damages,
interest should be
reckoned
from
date of judgment, being the date the amount
is
"actually
determined'
[3]
.
P
laintiff's
submission:
[9]
The plaintiff's counsel argued that the interpretation of Splig J and
Mlonzi J was with respect, inconsistence with existing
case law,
dealing with similar disputes.
[1O]
The plaintiff's counsel submitted, among others, that the court in
Takawira
incorrectly relied on s 2A (3) which deals with
specifically with interest on part of a debt which consists of the
present value
of a loss which occur in the future.
The
Law:
[11]
Before
the
introduction
of
section
2A
[4]
(hereinafter referred
to
as
"Act
55
of
1975"), no common
law principle or statutory enactment provided for the award
of pre-judgment interest
on unliquidated damages.
[5]
[12]
Section 2A reads as follows:
"2A.
Interest on unliquidated
debts.-
(1)
Subject to the provisions
of this section
the amount
of every
unliquidated
debt
as
determined by
a
court of law, ......., shall bear interest
as
contemplated
in
s 1.
(2)
(a) Subject
to any
other
agreement
between
the parties
and
the provisions
of
the
National
Credit Act, 2005
the
interest
contemplated
in
subs
(1)
shall
run
from
the
date
on
which payment
of
the
debt
is
claimed
by
the service
on
the debtor
of
a
demand or summons, whichever date is the
earlier.
(3)
....
(4)
....
(5)
Notwistanding the provisions of this Act but subject to any other law
or an agreement between the parties,
a
court of law,.... may
make such an order
as
appears just in respect of the payment
of interest on an unliquidated debt, the rate
at which
interest
shall accrue
and the date which interest
shall run.
(6)
....."
Applying
the law
to
the dispute in this case:
[13]
It is general principle that delictual cause of action and the
liability for damages arises from the date of
delict.
[6]
[14]
In context of unlawful detention, in
Ngcobo
v Minister of Police
[7]
,
Shearer
J stated the
following:.....
at
any given moment during detention there is only
one
cause of action for
damages during the period of detention up to that moment;
and
that at the conclusion
of the period of detention there exist only one cause of
action
which
has assumed its final
and complete form at the
moment
of release."
[15]
I am in agreement with the submission made by the plaintiff that the
court in
Takawira,
incorrectly relied on section 2A (3) in
coming to the conclusion that the unliquidated damages could not
incur interest due to it
being undetermined until date of judgment.
[16]
Section 2A (3) deals with the consequential damages which occur after
but due to the same cause of action.
[17]
The position in respect of unliquidated damages has been set out in
several judgments in our
law and in Coetzee AJ in Du Plooy v Venter Joubert Ing.
en Ander
[8]
at
paragraph
(23]
states
as
follows:
"
In as far as s 1 do not provide for the calculation of interest on
unliquidated debts, Grosskopf JA, prior to s 2A being
enacted, in SA
Eagle Insurance Co Ltd v
Hartley
[9]
,
remarked
as follows:
'....
If a plaintiff through no fault of his own has to wait a substantial
period of time to establish his claim is seems unfair
that he should
be paid in depreciated currency. Of course, in respect of many debts
this problem is resolved (or partially resolved)
by an order for the
payment of interest, and the Prescribed Rates of Interest Act 55 of
1975 is flexible enough to permit the Minister
of Justice to
prescribe rates of interest which reflect the influence of inflation
on the level of rates generally (see s 1(2)).
Its application is,
however, limited to debts bearing interest (s 1(1)); and it is trite
law that there can be no
mora,
and accordingly no
mora
interest in respect of unliquidated claims of damages. See
Victoria Falls
&
Transvaal Power Co Ltd
v
Consolidated Langlaagte Mines Ltd 1915 AD
at 31-33, a decision
which has been consistently applied and followed, also in this Court.
It follows that there is no mechanism
by which a court can compensate
a plaintiff like the present for the ravages of inflation in respect
of monetary losses incurred
prior to the trial.'
[18]
In terms of the Prescribed Rates of Interest Act it is permissible to
recover
mora
interest
on amounts awarded by a court which, but for such award, were
unliquidated.
[10]
Once
judgment is granted such interest shall run from the date
on which payment
of the debt
is claimed by the service
on the debtor
of
a demand
or
summons, whichever date is earlier- section 2A(2) (a) of Act 55 of
1975.
[11]
The
word "demand"
is defined
in the Act to mean a
written
demand
setting
out
the creditor's claim in such a manner as to enable the debtor
reasonably to assess the
quantum
thereof.
[12]
[19]
In the
Kwenda case,
Murphy J accepted that in the particular
case, it was reasonably possible for the defendant to assess the
quantum once the summons
was issued.
[20]
In
Eden
&
Another
v Pienaar
[13]
referring to the
criticism in
Hartley's
case
[14]
the
Full
Court
of
the
then
WLD,
stated
that
the
effect
of
the
inserted
section
2A,
is
that;
"the
position in our law is now both liquidated and unliquidated debt
beat interest ( the
latter from the date on which payment is demanded or claimed by
summons) at the rate prescribed by the Minister
of Justice in terms
of s 1(2)."
[21]
The Supreme Court of Appeal in
Thorough
Breeders Association v Price Waterhouse
[15]
it was
held
that
in
the
absence
of
a
letter
of
demand,
section
2A
of
Act
55 of 1975, ordained
mora
interest
at 15.5% per annum from the date of summons. The court observed that
"if
the award was one for mora interest there is no reason
why, having
regard
to s2A of
the Act,
interest
should
only
run
from
the date of judgment
and not from the date of summons."
[16]
In paragraph [79] the
court concludes:
"since
no demand prior to summons was proved, the date for
the commencement for
the calculation would therefore be the date upon
which summons
was
served."
[22]
The Supreme Court of Appeal further held, in
Steyn
NO v Ronald
Bobroff
[17]
that
[t]he
term mora simply means delay or default. The mora interest provided
for in the
Act
is thus intended to
place
the creditor, who has not received due payment
...
in the position that
he or she would have occupied had the payment been made"
when
it was first requested from the
defendant.
[23]
In
Minister
of Safety and Security and others v Janse van der Walt
and another
[18]
the Supreme
Court
of
Appeal
ordered
the first defendant
to
pay the
interest
on the amount
of
damages
awarded
at the
rate
of
15.5%
per annum from the
date
of demand to the date of payment. Similarly the Supreme Court of
Appeal in
Woji
v The
Minister
of
Police
[19]
ordered the defendant
to
pay
interest on the sum of
R500 000.00 at the
rate of
15.5 %
per
annum
a
tempore
morae
from
date of demand
to
date of
payment.
[20]
[24]
Having regard to the above-mentioned case law and the reasoning
therein concluding that interest in illiquid claims for damages
may
be awarded interest a
tempore
morae
from the date of
demand or summons, whichever is earlier, in terms of section 2A
(2)(a) of Act 55 of 1975, it is clear in Takawira
case the court in
finding that interest on an illiquid claim for damages, can be
determined from the date of judgment.
Discretion
in terms of section 2A /5):
[25]
In the
unreported
case
of
Nel v
Minister
of Safety
and Security
[21]
Kubushi J
held that:
The default position
of the Act
is
that the amount of
every
unliquidated
debt
as
determined
by any court of law shall bear interest at the prescribed rate
a
tempore
morae,
unless
a
court of
Jaw
orders
otherwise.
Where
a
court
deviates
from
this position,
an
order
that it
any
make,
must
appear just
in the circumstances
of that
case."
[26]
In the current matter, I find no circumstances justifying the
deviation from the prescribed rate.
Order:
[27]
I make the following order:
1.
The defendants, jointly and severally, are ordered to pay the
plaintiff of the amount of R100 000.00(one Hundred Thousand Rand);
2.
to pay interest on the capital amount at the rate of 15.5 % per annum
as from the date of 7 June 2012 (date of demand) to date
of final
payment;
3.
to pay the plaintiff's costs of the action, including the qualifying
fees of Dr FJA Snyders and Dr Gideon Haasbroek, on the scale
between
party and party;
4.
the costs are payable within one month of taxation, whereafter the
taxed amount due to the plaintiff shall accrue interest at
the rate
of 9% per annum, calculated from a month after taxation to date of
final payment.
DEPUTY
JUDGE PRESIDENT AP LEDWABA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the Plaintiff
..........................................
:
Adv SW Davies
Instructed
…...............................................
: JW
Wessels & Partners Inc.
For
the First and Second defendants
.........
:
Adv FM Snyman
Instructed
by
...............................................
:
HANDED
DOWN ON
3 I
AUGUST 2016.
[1]
140 of 2002
[2]
Unreported
case
(2013)
JOL30554 (GSJ).
[3]
In paragraph [56] Splig J states: "I do not agree that the Act
can be construed as
applying indiscriminately to
all
illiquid
claims.
On the contrary
common
sense
dictated
that
the
starting point is the date upon which the
damages
are
assessed.
The
learned
magistrate
purported
to
assess
them
not
at
date
of
demand
or
at
date
of
summons, but at date of
judgment.
The amount ordered was therefore not an amount that came into
existence on
any
date
sooner
than
the
date
of
judgment-any
such
amount
would
have
been
less
if
regard
is
had to the erosion of the value of money. The corollary
is
that the amount
actually
determined
was
not
an amount
due
and
payable
at
any
date
sooner
than
the
date
of
judgment."
4Supra
[5]
Adel
Builders
(Pty)
Ltd
v
Thompson
2000
(4)
SA 1027
(SCA)
at
1031
at
paragraph 11.
[6]
See
General
Accident
Insurance
Co
SA
Ltd
v
Summers;
Southern
Versekeringsassossiasie
Bpk v carstens NO;
General
Accident Insurance Co SA Ltd v Nhlumayo
1987 (3) SA 577
(A), Eenden
& Another v Pienaar
2001 (1) SA 158
(W) at 167F, SA Eagle
Insurance CO Ltd v Hartley
[1990] ZASCA 106
;
1990 (4) SA 833
at 8416-J
[7]
1978
(4) SA 930
(D)
at
932H-933A
[8]
2013
(2)SA 522 (NCK).
[9]
[1990] ZASCA 106
;
1990
(4) SA 833
(A)
at
841G-842A
[10]
See unreported case
Kwenda
and others v Minister of Safety and Security (2015] JOL 34203(GNP)
[11]
Supra
[12]
Supra
[13]
2001(1)
SA 158 (W)
at
197 F
[14]
Supra
[15]
2001
(4) SA 551(SCA)
at
591-595
[16]
The court referred to
Adel
Builders Ltd v Thompson
(supra
at paragraph [8].
[17]
2013
(2) SA 311
(SCA
)
at paragraph [35]
[18]
12015]
JOL 32548 (SCA)
[19]
2015 (ll5ACR 409
(SCA)
[20]
See also the unreported case of
Van
Rooyen v Minister of Police 2013 JDR 1149 (GNP)
in
which Pretorius J referred to West Rand Estates v New Zealand
Insurance Co Ltd AD 173 at 83 where Solomon JA found: ''There
is no
satisfactory reason foe following any other practice, and we think
that we should now definitely lay down the rule that
mora begins to
run from the date of receipt of the letter of demand" .Also i
n
Van Rensburg v City of Johannesburg
2009 (11 SACR 32
(W)
interest was payable on
the awarded amount at the rate of 15.5 % per annum from date of
delivery of demand to date of payment.
[21]
A1009/2010ZAGPPHC
188 (22 August 2012)