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[2016] ZAGPPHC 906
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Matshira v Minister of Safety and Security and Another (4783/2011) [2016] ZAGPPHC 906 (12 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0.:4783/2011
12/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
LEBOGANG
CHUENA
MATSHIRA
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
First
Defendant
CAPTAIN
NGOAKO
LEDWABA
Second
Defendant
JUDGMENT
Hughes
J:
[1]
On 8 September 2008, Lebogang Chuene Matshira, the plaintiff
was a passenger in a vehicle on Mabopane Highway (R80). A member of
the South African Police Services in a police vehicle with flashing
blue lights approached their vehicle from behind. The driver
of Ms
Matshira's vehicle pulled over. The police vehicle pulled up next to
their vehicle and the second defendant, Captain Ledwaba,
armed with
an automatic R5 rifle opened fire on the occupants.
[2]
The plaintiff was then handcuffed while in pain and bleeding
from the gunshot wound she had sustained. She was taken to Kalafong
Hospital, admitted to ICU and later underwent emergency surgery. She
remained under police guard and cuffed to the hospital bed
for eight
days. On 16 September 2008 she was discharge from hospital and taken
to Soshanguve Police Station where she was detained
for one night.
The following day she made her first appearance in court and was
granted bail. Subsequently the case was dismissed
as the docket went
missing.
[3]
An interim payment of R500 000.00 in terms of Rule 34A of the
Uniform Rules of Court was made to the plaintiff after the defendants
conceded liability. In addition an offer was made of R236 690.00 in
respect of future medical expenses which were also accepted
by the
plaintiff. I am now tasked with the adjudication of general damages,
past and future loss of income.
[4]
The gunshot entry wound of the plaintiff is on the left side
of her back and the exit wound on her right lower abdomen. The
plaintiff
underwent laparotomy surgery to remove the bullet and was
left with an obvious large scar on the left side of her back as well
as a vertical scar extending from her abdomen down to her pelvic
bone. Her abdominal muscles are weak but she has normal activation
of
the abdominal muscles. It was also established that she has untreated
severe high blood pressure arising from a pregnancy prior
to the
shooting. She states that since the shooting she drank alcohol
regularly to forget. She stated that she becomes startled
when she
hears loud banging noises or sirens. The plaintiff also complained of
back pain, neck pain and her right hand becoming
painful if she works
with it too long.
[5]
Ms Van der Walt, the occupational therapist, sets out the
plaintiffs work ability eloquently in her report. I have extracted
same
and it appears below:
"Ms Matshira said that she
completed grade 12 at school in 1997. Soon after school she started
working as a waitress for a
year before she worked as a temporary
worker doing stock taking at Mr Price in Menlyn. She worked for
approximately a year. She
said that she studied office administration
and computer work at ATTI College in 2005 for a year and she
completed her studies.
After her studies were completed she managed
to secure work as a personal assistant and she worked for a number of
employers including
BIZ Africa Engineering, SASSA and National
Treasury. At the time of the shooting incident, she was working for
CIPRO who delivered
services for DTI where companies registered for
tenders. She said she was employed in an open position with the
option to obtain
permanent employment. Following the shooting
incident she did not return to work until 2009. I determined that her
work at the
time would have entailed sedentary strength tasks and
mainly office work. Ms Matshira indicated to me that in 2009 she
again attempted
to work as a personal assistant at the Tshwane
University of Technology. She said that she worked for five days but
due to having
too much backache and difficulties with concentrating
in meetings she decided to resign after the five days. Ms Matshira
told me
that she made an attempt to return to work in 2011. She was
working as a volunteer for Macbeth Attorneys for a month. She had to
do a lot of typing and encountered neck and backache and right hand
pain when she was working for long. She struggled with her
endurance
and she stopped after a month. She said that she registered for a
course in project management at UNISA in 2012 but she
did not cope
with the study demands and discontinued her participation. She
complained of inability to concentrate and she had
memory
difficulties. She has not worked during 2013 and 2014. She told me
that she aspired to work again".
[6]
The circumstances of the plaintiffs injuries, surgery,
hospitalisation and detention warrant that the plaintiff be
compensated for
damages arising from her arrest, detention, injury
and surgery. Even after the plaintiff was shot and surgery was
conducted to
remove the bullet the plaintiff remained handcuffed to
her hospital bed under police guard for eight full days; when
released from
hospital she spent the night in a police cell
thereafter she appeared in court and was released on bail.
Subsequently, the case
was dismissed as the docket went missing.
[7]
It was placed on record by the respondent's counsel that an
offer of R500 000.00 had been offered to the plaintiff for general
damages.
This offer was accordingly accepted by the plaintiff. The
plaintiff contends that the amount not provided for is an award for
her
unlawful arrest and detention. The defendants contend that the
award for general damages is one that encompasses a globular effect
of the unlawful arrest and detention. Thus that which was offered and
accepted as general damages is sufficient in these circumstances
and
this head of damages, the offer made having been accepted by
dispenses of that issue.
[8]
The plaintiff contends that over and above that offered and
accepted by the plaintiff an appropriate amount to be awarded in
addition
to the general damages, for the arrest and detention
specifically, would be an award of R180 000.00 which would bring the
figure
for general damages inclusive of her arrest and detention to
an amount of R680 000.00.
[9]
In this instance I am mindful that the arrest of the plaintiff
brought about an injury to the plaintiff in the form of a gunshot
wound. I am further mindful that she had to be operated upon and
hospitalised. During her hospitalisation she was "incarcerated"
so to speak as she was under police guard handcuffed to her hospital
bed. Even after she had been hospitalised for eight day she
was
imprisoned for one night and released on bail after her first
appearance in court. From the medical reports it is evident that
the
sequelae resultant from her injuries, arrest and detention are
serious.
[10]
I concur with the defendant's counsel that the particulars of
this case need to be looked at as a whole and in doing so there are
no comparable cases that are on point with this case. See Minister of
Safety and Security v Seymour
2006 (6) SA 320
(SCA) at page 325 B -
C:
"The assessment of awards for
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
..."
[11]
With the above dictum in mind I think that it's prudent to
have cognizance of the fact that the plaintiff also claims for loss
of
earnings for past and the future. The incident with its resultant
sequelae has had an effect on the plaintiff's employability and
competitiveness in the open labour market.
[12]
I am guided by the dictum above in
Seymour
and that
stated by Swain JA in Woji v Minister of Police 2015 (7K6) QOD at
[38]. In the circumstances, to my mind, a suitable award
for general
damages in these circumstances is the amount of R500 000.00. This
amount is sufficient for the injuries sustained together
with the
unlawful arrest and detention of the plaintiff.
[13]
Turning to deal with past and future loss of earnings, I take
heed of the fact that the Clinical Psychologist, Monique Kok, noted
that the plaintiff "since the incident started consuming large
amounts of alcohol on a daily basis." Further, that the
plaintiff consumes cough mixture daily to assist her in sleeping. Ms
Kok concluded that plaintiff suffered from major depressive
disorders
(MOD) and posttraumatic stress disorder (PTSD). She found that the
plaintiff's clinical presentation "has affected
her daily
functioning and inhibited her ability to perform her daily tasks. It
has also robbed her of the ability to engage with
others and to
actively seek and maintain employment. Furthermore, these symptoms
have prevented from successfully achieving in
her studies and
therefore further aggravated her deep feelings of being a failure."
[14]
The joint minute of the two Industrial Psychologists, Dr W.
Pretorius and Ms JC White depicts the following agreements:
Pre
- Incident:
[14.1]
"We note that she was employed by CIPRO as a personal assistant
for a director on a contract basis. We agree the claimant
was
reportedly remunerated at a rate of R60 per hour for 40 hours per
week, probably. R124 800 per annum. We agree if she was successful
with her application for permanent employment then she could have
secured employment at Paterson 84 comparable job grade (median
guaranteed package) end 2008. Alternatively she would have been able
to grow her earnings at least from her earnings level at the
time of
the accident to reach as a probable earnings pinnacle a Paterson C3
(median guaranteed package) comparable level at around
age 45. We
agree to inflationary increases to retirement age probably at age 65
pending on her health and retirement age policy
of her employer at
the time."
Post
- Incident:
[14.2]
"We note that as per a contract of employment she secured
temporary employment through Marang Human Capital Solutions
at TUT as
a Personal Assistant (employment from 01 March 2009 with pay rate of
R60.00 per hour). We also note that she was unable
to cope and
resigned the post after 5 days. JW was also informed that she secured
employment in 2010 working on a voluntary basis
for one month until
was unable to cope with the work. We agree that she has reportedly
been unemployed since.
We
agree that at the moment it seems that the majority of her work
capacity limitations are of a psychological and psychiatrist
nature.
Based on her work history these symptoms presented strong enough that
she was not able to perform her work as a personal
assistant. The
clinical psychologist remarked that her clinical presentation has
affected her daily functioning and inhibited her
ability to perform
her daily tasks. The incident and its sequelae thus directly impacted
on her employability, work choices, competitiveness
as well as work
performance (productivity and effectiveness). Ms Matshira with her
scarring and current psychological deficits
will experience
significant difficulty to secure and sustain employment and will
probably remain unemployed. In this regard we
agree to defer to the
clinical psychologist and psychiatrist with regards to post-incident
diagnosis, prognosis and employability
with successful treatment.
We
agree at the moment it seems probable that at least her career has
been delayed from the time of the incident to date. We agree
considering the information at hand that as the most probable
scenario that with successful treatment Ms Matshira may attempt to
secure employment at the Paterson 83 Secretary 1 level on a contract
basis and will earn basic salary only. However, employment
will
probably be of an intermittent nature. We agree to defer to the
relevant experts with regard to post-incident retirement age.
We
agree to propose actuarial calculations to quantify the extent of
past and future loss of earnings considering the above agreed
'but
for the incident' and 'having regard to the incident' earning
scenarios."
[15]
The plaintiff has filed a calculation from actuary Johan
Sauer. However this calculation is not along the lines agreed upon by
the
Industrial Psychologist in their joint minute, it is purely based
on the report of Dr W Pretorius who compiled this report to advance
the case of the plaintiff. I am of the view that what appears in the
joint minute of the Industrial Psychologist, based on the
medical
reports on hand and on the work history set out above, is more
realistic than that suggested by Dr W Pretorius. The age
of
retirement on .both accounts, as there is nothing in the reports to
indicate the contrary, is to remain at 65.
[16]
The intermittent nature of the employment of the plaintiff
will be factored in with the applicable contingencies to be applied
to
the actuarial calculations. Turning to the issue of contingencies
I am mindful of what Nicholas JA stated in
Southern Insurance
Association v Bailey NO 1984(1)
98
AD
about the two
approaches which can be used to establish future loss of earnings as
discussed on
page 113:
"One is for the Judge to make
a
round estimate of an amount which seems to him to be fair
and reasonable. That is entirely
a
matter of guess work,
a
blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations, on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions, and these may vary
from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to
a
greater or lesser extent."
At
page
114C-D
to state:
"In a
case where the
Court has before it material on which an actuarial calculation can
usefully be made, I do not think that the first
approach offers any
advantage over the second. On the contrary, while the result of an
actuarial computation may be no more than
an "informal guess"
it has the advantage of
a
logical basis".
In addition
refer to in Smit NO v The Road Accident Fund, The Quantum of Damages,
Corbett and Honey, Volume 5, B4-251.
[17]
I also take heed of that stated by Robert J Kock in his book
''The Quantum Year book"
that there are no fixed rules as
regards general contingencies and one of his helpful guidelines is
that of the sliding scale contingency
theory set out here after is
usually preferred:
"Sliding scale: ½
%
per year to retirement age, i.e.
25%
for a
child,
20% for
a
youth and 10% in middle age".
[18]
The scenario set out above as regards the pre-incident loss of
earnings is not one which is contentious. I am mindful that due to
the sporadic employment record of the plaintiff I should factor a
contingency in over and above the general contingency to be applied.
[19]
In this matter I am fortified in my belief that the Industrial
Psychologists state that the plaintiff would encounter a delay in
attaining employment which is factored in the 'having regard' post -
incident scenario. The latter occurs from the date of the
incident to
the date of the actuarial calculation. Thereafter, she would attain
employment, on Paterson 83 Secretary 1 level on
a contract basis and
will earn basic salary only. She would work on an intermittent basis,
but work she could with the correct
treatment in place. Nothing is
advanced by any of the experts that her age of retire post incident
has been affected in anyway
thus this will remain at age 65.
[20]
Actuary Johan Sauer, on the instruction of this court, causes
an actuarial calculation to be drawn up along the lines of the joint
minute of the two Industrial Psychologists. I have also received a
calculation conducted by MUNR Forensic Actuaries dated 17 September
2015 and 25 September 2015. The calculation of 17 September 2015 is
structured along the assumption of the joint minute of the
two
Industrial Psychologist, the difference in the eventual total figure
is the use of the 2016 figures from Robert Kock as regards
the rate
of earnings and the fact that the entire package was regarded as
taxable whilst Johan Sauer only regarded 10% of the package
as being
taxable. I am informed not much turns on these two aspects as the
basis is ultimately the same and minimal differences
arise. Having
this knowledge at hand I am convinced without a doubt that the
calculation showing the plaintiffs pre - incident
commencing at
Paterson 84 with gradual progression to Paterson C3 is the most
realistic in these circumstances.
[21]
Having regard to the above the calculation applicable is set
out below without any contingency deductions having been applied:
Pre-morbid:
Gradual growth to C3
Had the incident not happened
Now that the incident has
happened
Difference: Loss
Total loss of past earnings
1 369 424
1 536
1 367 889
Total loss of future earnings
6 384 330
2 505 972
3 878 358
Total loss of earnings
5 246 247
[22]
The plaintiff, prior to the incident, had been employed at
four different companies from 2006 when she had completed her course
at ATTI in 2005. Thus in a space of three years she worked for four
different companies. The last place of employment at CIPRO was
on a
contract basis and it is not clear that she would have remained there
to eventually be employed on a permanent basis. My view
is that a
higher than normal contingency needs to be applicable in these
circumstances and to this end I believe that a contingency
of 20%/20%
be applied to the past loss of earnings 'but for' and 'having regard'
to the incident. The total past loss of earnings
after the
application of the contingency I have suggested equates to R1 094
310.40.
[23]
After the incident the plaintiff was, in my view, not sure of
her career path as she dabbled from this course to the next, without
a clear directive of her chosen career path. This as well as her
fetish to up and leave her job in but a few days after employment
is
telling of the plaintiffs employment ethos. Another factor that does
not assist the plaintiff's case is her dependency on alcohol,
taking
into account that she has a pre-existing untreated high blood
pressure condition. It is well documented that this will have
an
effect on her ability to secure and sustain employment and her
employability in the open labour market. Here a higher than normal
contingency is warranted and as such I am inclined to apply 20%/40%
on the future loss of earning 'but for' and 'having regard'
to the
incident. Likewise the total future loss of earnings after the
suggested contingencies equates to R3 603 880.80.
[24]
In the result the total loss of earning amounts to R4 698
191.20.
[25]
Consequently an order is made for general damages at R500
000.00, future medical expenses as agreed at R236 690.00 and past and
future loss of earnings of R4 698 191.20. From the total of these
amounts a deduction of R500 000.00 must be made for the interim
payment already received by the plaintiff, ultimately the plaintiff
will receive a payment of R4 934 881.20 from the defendants.
[26]
The costs are to follow the result on a party and party scale.
[27]
Wherefore the following order is made:
[27.1]
Judgment is granted in favour of the plaintiff, Lebogang Chuene
Matshira, in the sum of R4 934 881.20 to be paid by the defendants
jointly and severally the one paying the other to be absolved.
[27.2]
The defendants are ordered to pay interest on the foresaid amount at
the prescribe rate of 15.5% per annum a
tempora morae
from
date of demand to date of payment.
[27.2]
The defendants are ordered to pay the plaintiff's costs on a party
and party scale jointly and severally the one paying the
other to be
absolved, together with interest thereupon at the rate of 9% per
annum a
temperore morae
from fourteen days after the taxation
of the plaintiff's costs to date of payment.
____________________
w.
Hughes
Judge
of the High Court, Pretoria
Appearances:
For
the Plaintiff:
Adv
N Davis SC
Instructed
by:
Modzuka and Magolego
For
the Defendant:
Adv H.P Joubert
Instructed
by:
State Attorney
Date
heard:
11 August 2016
Date
delivered:
12 October 2016