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[2016] ZAGPPHC 1117
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Phasha and Another v Minister of Safety and Security (15751/09) [2016] ZAGPPHC 1117 (1 November 2016)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG HIGH COURT DIVISION,
PRETORIA
01/11/2016
CASE NO: 15751/09
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
LISBETH MASELAELO
PHASHA
1
st
Plaintiff
BERNADO MUNDAU
BILA
2
nd
Plaintiff
and
MINISTER OF SAFETY AND
SECURITY
Defendant
JUDGMENT
MNGQIBISA-THUSI J
[1]
The plaintiffs, Mrs Lizbeth Maselaelo Phasha ("Mrs Phasha")
and Mr Bernado Mundau Bila ("Mr Bila"), instituted two
separate actions against the defendant, the Minister of Safety
and
Security, for damages for unlawful arrest, unlawfu1 detention,
assault and malicious prosecution.
[2]
The plaintiffs' unlawful arrest and detention was based on an
accusation
that they had murdered a person and dismembered him in
order to sell his body parts. The court hearing the merits concluded
that
the plaintiffs were unlawfully arrested and detained and that
their prosecution was malicious.
[3]
At the trial on the merits, the respective claims of the plaintiffs
based
on assault were dismissed.
[4]
On 14 January 2014 Judge Teffo ordered that the plaintiffs' claims
for
unlawful arrest and detention and malicious prosecution had
succeeded and dismissed the plaintiffs' action for assault. The court
ordered that the defendant was liable to compensate the plaintiffs
for their proven or agreed damages and for the defendant to
pay for
the costs of the plaintiffs' actions. The court postponed,
sine
die,
the issue of
quantum.
[5]
The only issue to be determined is quantum.
[6]
The following facts are common cause.
[7]
Mrs Phasha was arrested on 25 October 2006 and appeared in court on
30
October 2006. Although she was initially held at the Seshego
police station, she was later transferred to the Dedron police
station.
Mr Bila was arrested on 31 October 2006 and his first court
appearance was on 3 November 2006. Mr Bila was held at the Seshego
police station. The plaintiffs applied to be released on bail on 11
and 14 December 2006, respectively. Bail was, however, in each
case
denied. During the period of their detention, the plaintiffs appeared
in court on several occasions.
[8]
On 14 May 2007 the Director of Public prosecutions made a decision
not
to proceed with the prosecution of the plaintiffs. Despite the
plaintiffs appearing in court on 17 May 2007, for some inexplicable
reason(s) they were not released. It was only on 31 August 2007 that
the plaintiffs were finally released when the charges against
them
were withdrawn.
[9]
At the hearing of this matter there was agreement that both of the
plaintiffs'
claims should be consolidated for purposes of quantum.
There was also agreement that the plaintiffs will call certain
witnesses
and that the defendant will not call any witnesses.
[1O]
The plaintiffs are seeking compensation from the defendant on the
grounds that as a result
of their unlawful arrest and detention, and
malicious prosecution, they have suffered general damages on the
basis of loss or deprivation
and limitation of their constitutional
rights in terms of sections 1O; 12(1)(a) and (e); 22 and 35(2)(e) of
the Constitution.
[11]
In their amended particulars of claim the plaintiffs are seeking the
following damages
for the wrongs committed against them:
Mrs
Phasha
Mr
Bila
Past
loss of Income
R273
267.00
R289
263.00
Future
loss of Income
R309
638.00
R24
231.00
Future
medical expenses
R45
000.00
R36
000.00
General
damages in respect of:
Unlawful
arrest and detention
R1
019 000.00
R1
019 000.00
Emotional
impairment and injury
to
dignitas
R300 000.00
R300 000.00
TOTAL
R1
946 905.00
R1
668 494.00
[12]
In the alternative, the plaintiffs seek the following:
Mrs
Phasha
Mr Bila
General damages
R932 780.00
R592 780.00
[13]
The plaintiffs called Mr Leon Albert Roper, a neuropsychologist as
its first
witness. Mr Roper testified that in his assessment of Mrs
Phasha, he took into account the fact that as a result of her
detention
after arrest, Mrs Phasha suffered a lot shame and was
isolated by the community. He also took into account that Mrs Phasha
was
also accused by members of the community as a witch and a
murderer. Mr Roper opines that the negativity of the community has
led
to Mrs Phasha suffering from post-traumatic depression.
Furthermore, that Mrs Phasha has consequently lost income and status
within
the community and her dignity as a person has been impaired.
Mr Roper testified that his findings were that Mrs Phasha suffered
from post-traumatic stress syndrome which was related to her
experience with the police.
[14]
During cross-examination Mr Roper testified that his assessment and
findings
on Mrs Phasha were based on what Mrs Phasha told him. Mr
Roper was not in a position to give specific details as to which
aspects
were related to Mrs Phasha's experience with the police. Mr
Roper further testified that he interviewed Mrs Phasha eight years
ago and could not say if Mrs Phasha was malingering in order to
portray herself in a positive manner. Mr Roper reiterated that Mrs
Phasha feelings of isolation stem from the fact of being labelled a
witch and a murderer. As a result, Mrs Phasha suffers from
a post
traumatic stress disorder and post traumatic depression.
[15]
Mr Roper conceded that Mrs Phasha previously experienced trauma when
her husband
was murdered and her son was also later murdered, which
events led to her being depressed. He testified that if Mrs Phasha
was
not arrested and detained, her pre-morbid experiences could
possibly have led to post traumatic stress syndrome. Further that Mrs
Phasha's experience of arrest and detention could contribute to her
psychological vulnerability and make it easier to develop
post-traumatic stress syndrome.
[16]
Mr Roper further asserted that Mrs Phasha's arrest exacerbated her
depression
in that she was isolated by her community and was unable
to practice her profession as a traditional healer. Mr Roper
emphasised
the fact that because of the experience of being
unlawfully detained and being held in prison for such a long time,
Mrs Phasha
was unable to move on with her life. He testified that the
effects of post-traumatic stress syndrome led to her isolating
herself
from the community, being fearful of the safety officer, and
feeling isolated because able to practice as it is traditional
healer.
[17]
With regard to Mr Bila, Mr Roper testified that his assessment and
findings
were that Mr Bila was isolated by the community who regarded
him as murderer, that he was therefore unable to practice as a
traditional
healer and as a result was unable to earn an income. Mr
Roper further testified that Mr Bila had erectile dysfunction and
suffers
from bed-wetting which has exacerbated his psychological
vulnerability. However, Mr Roper conceded that in Mr Bila's case he
also
relied on Mr Bila's subjective feelings particularly since the
allegation of assault and torture were found to have no basis during
the merit trial proceedings. He further conceded that if you were
detained in circumstances where there was no physical threat,
a
post-traumatic stress syndrome diagnosis could not be made. He
however asserted that arrest by itself could possibly lead to
post-
traumatic disorder syndrome.
[18]
During cross-examination Mr Roper admitted that although in his first
report he had indicated
that in 1978 Mr Bila had fled the war in
Mozambique, leaving his family behind, and that in the second report
he had indicated
that Mr Bila relocated to South Africa in 1978 due
to financial reasons, he asserted that the war in Mozambique rendered
Mr Bila
psychologically vulnerable to post traumatic stress syndrome
later in life. He admitted that during the period of 2006 and 2014
Mr
Bila was unemployed and this could have been a further factor which
made him lose hope.
[19]
The next witness
to testify in behalf of the plaintiffs was Mr Johannes Kobus
Prinsloo, an industrial psychologist. With regard
to Mr Bila, Mr
Prinsloo testified that he consulted twice with Mr Bila. During his
consultations with Mr Bila, he gathered that
he had worked in the
informal sector is a healer and was not registered. In order to
determine Mr Bila's earnings, he had to do
some desk research. He
relied on the research on traditional healers done by Professor Karl
Peltzer of the University of the North.
His findings were that
pre-morbid Mr Bila's annual earnings were approximately R23 378.00.
Mr Prinsloo was of the opinion that
post-morbid, Mr Bila was
unemployable as a result of the incident of his arrest and detention.
In his opinion Mr Bila has suffered
total loss of earnings in that he
was unemployable and was no longer in a position to work as a
traditional healer. The
sequelae
of this is that to Mr
Bila has psychological
problems and his reputation within the community is damaged as he was
branded a murderer and a witch. Mr
Prinsloo testified that Mr Bila
informed him that he went to back to work as a traditional healer
within one month of his release
and tried to serve people. This did
not work as the stigma still attached to him. The fact that he was
released from detention
did not make an effect on the community's
perceptions of him. As a result of the allegations made against him,
Mr Bila has been
rejected by the community and cannot attract
patients any more.
[20]
In respect of Mrs
Phasha, Mr Prinsloo testified that she also worked in the informal
sector as a traditional healer before her arrest.
She started
practising as a traditional healer around 2002 at the age of 29 years
and still had 21 years to function. Mr Prinsloo
was of the opinion
that pre-morbid and with four years' experience the best Mrs Phasha
could have made was R16 005.38. Further
thoughts around July 2010 Mrs
Phasha would have moved to the same mean as Mr Bila by earning
approximately R23 837, 78 per annum.
Mr Prinsloo was of the opinion
that Mrs Phasha suffered from the same disadvantages as Mr Bila,
namely, psychological incapacity
and rejection by the community. He
was further Mr Prinsloo was of the opinion, however, that Mrs Phasha
displayed some resilience
in that she had diversified by making
bricks. However, the community did not buy bricks from her because of
the notoriety she acquired
when she was arrested. Mr Prinsloo was of
the opinion that Mrs Phasha has suffered loss of earnings up to the
age of 60, when she
could have retired. He was of the opinion that
Mrs Phasha would have earned up to R85 000.00 per annum by the time
she retired
as she was younger than Mr Bila.
[21]
Mr Prinsloo
testified that it was possible that before their arrest, Mr Bila
earned R2 800.00 per month and Mrs Phasha R3 200.00.
[22]
Under cross
examination Mr Prinsloo testified that he did not explore as to why
Mr Bila did not work after his release. He testified
that since Mr
Bila pre morbid functioned in a semi-skilled position, he made
assumptions that pre-morbid Mr Bila functioned
successfully. Mr
Prinsloo also testified that Mr Bila did not provide him with any
proof of his income before his detention. He
surmised that the reason
could be that the sector was cash based. He further testified that Mr
Bila's employability was affected
by his reputational and
psychological problems.
[23]
The next witness
to testify on behalf of the plaintiffs was Mr Johannes Mathoka Mahlo
("Mr Mahlo''). Mr Mahlo's evidence is
that on 26 October 2006 at
around 1OhOO, he was sitting behind a shack with his girlfriend when
he saw uniformed police officers,
who are about five or six,
surrounding Mrs Phasha's rondavel. Amongst the police officers he
could recognise three of them. He
saw Mrs Phasha being handcuffed and
having some disagreement with the police. When the police took her
away she left her small
child, who was crying. He then took care of
the child and later took the child to Mrs Phasha's relatives. He
testified that a week
before Mrs Phasha and Mr Bila appeared in
court, at some stage a certain Captain Tjale came to their area and
told members of the
community that Mrs Phasha was arrested because
she is a murderer and a witch. Mr Mahlo further testified that a
couple of days
after Mrs Phasha was arrested, he saw a police convoy
arriving at Mrs Phasha's house, with Mrs Phasha and Mr Bila sitting
at the
back of one of the vehicles. They both looked tired, dusty and
confused. A crowd from the community came to see what was happening.
Captain Tjale demand the keys to Mrs Phasha house. After the door was
opened, the police went inside and started spilling Mrs Phasha's
traditional medicine on the floor and also made her eat some of it.
Whilst this was going on, the police on saying to Mrs Phasha
"you
are a witch, eat". The police told the crowd that they were
taking the traditional medicine to the laboratory. The
crowd started
singing slogans and throwing stones at Mrs Phasha's house and wanted
to burn it. The police left without the reprimanding
the crowd to
stop what they were doing. Mr Mahlo testified that Mrs Phasha and Mr
Bila had the hands and feet tied together and
that they were
bleeding. Mr Bila's trousers and Mrs Phasha's skirt were torn. After
the police left Captain Tjale came back in
the afternoon and he
invited members of the community to come to court. The community
arranged transport for people to attend court.
A large crowd
attended the court proceedings and were carrying placards and
demanding that the plaintiffs should not be granted
bail.
[24]
Mrs Phasha's
evidence is as follows. On the day in question she was with her four
year old child when the police, including Captain
Tjale arrived at
her house and demanded to know the whereabouts of his son who was
allegedly having a relationship with a certain
woman from Seshego.
She was handcuffed and taken to the Seshego police station. Five days
later she and Mr Bila were taken to her
home, handcuffed and with leg
chains. After entering her house, the police threw her traditional
medicines on the floor and on
top of her and Mr Bila's head. Some of
the medicines was thrown into a bath and the police kept on saying
that they wanted to see
if it will kill her. Captain Tjale kept on
calling her a witch. A crowd which had gathered around her house kept
on swearing at
her and calling her names. She and Mr Bila were later
taken to Mr Bila's home before being returned to prison. She
testified that
the experience left her sad, humiliated and angry
particularly as Captain Tjale refused to let her child come with her.
Her evidence
is that as a traditional healer she used to charge her
patients amounts ranging between R100.00 and R350.00 for consultation
and
other services. She estimated her monthly earnings to be R3
500.00. She testified that whilst in prison a neighbour used to bring
her clean clothes and food. In instances when she was required to
appear in court, her prison mates usually borrowed her clean
clothes.
Further that whilst in prison she was worried about her child as she
was not receiving any information about her wellbeing
although she
knew that the child was staying with her sister.
[25]
Mrs Phasha
testified that before her arrest, she was never called a witch, that
she was a good traditional healer and had many clients.
However,
during cross examination Mrs Phasha did admit that a certain
Machobane, who was a pastor in the ZCC called her a witch,
accusing
her of enticing people to go to her rather than going to church. On
her release people did not consult with her anymore
because of the
stigma of being labelled a witch. She testified that she was also no
longer able to 'connect' with her ancestors.
She further
testified that after her
release she tried to run a brick-making business but had no
customers. She denied having been in a bus
accident. She also
admitted that after the death of her first husband, who was killed by
his brother, and that of her son, she
became depressed. However, she
blamed the police and the fact that her being accused of being a
witch, which was wildly publicised
even in the press, for her woes.
She complained that after her release from detention, she is now
suffering from chest, rib and
neck pains and sometimes loses her
mind.
[26]
Mr Bila testified
that on the day of his arrest the police had called him to report at
the police station. On his way to the police
station he met the
police who bundled him into their vehicle in front of many people and
he was taken to the Seshego police station.
He was not told why he
was being arrested. At the police station the police asked him about
the body parts of a person who had
been killed and he denied any
knowledge of what they were talking about. He testified that the
police threatened to burn him alive
if he did not tell them where the
alleged body parts were. He and Mrs Phasha were then taken to a local
game reserve where they
were assaulted. The claim made by Mr Bila and
Mrs Phasha about the assault was dismissed at the merits trial. He
testified that
he felt sad, embarrassed and humiliated by the whole
experience.
[27]
According to Mr
Bila, as a result of his unlawful arrest and detention, he is now
unable to go to the veld to dig for herbs as a
traditional healer. He
alleged that he now suffers from chest pains and is no longer able to
do any physical work. He denied that
he had trained Mrs Phasha to be
a traditional healer or that they worked together. He testified that
in prison he was comfortable
enough under the circumstances and
claimed, a claim which he later retracted, that the police had
refused to let him see a doctor.
He also testified that people were
no longer consulting with him as a traditional healer.
[28]
It is common cause
that the plaintiffs' unlawful detention was for a period of 301days
(Mrs Phasha) and 305 days (Mr Bila).
[29]
There is no doubt
in my mind that the plaintiffs were wronged by their unlawful arrest
and detention and malicious prosecution.
It can also not be doubted
that the unlawful arrest of the plaintiffs in full view of members of
the community, being wrongfully
accused of murder and of being
witches and their unlawful detention and prosecution, did cause them
sadness, humiliated them and
lowered their dignity within the
community.
[30]
The issue to be
determined is what would be an appropriate amount for compensation
for the wrong done to the plaintiffs.
[31]
In
Minister
of Safety and Security v Tyulu
[1]
the Supreme Court of Appeal
stated that:
"[26] In their
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
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 of damages
on such facts.
(Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) at para 17;
Rudolph
&
Others
v Minister of Safety and Security
2009
(5) SA 94
(SCA)."
[32]
From the evidence of Mr Roper and Mr Prinsloo and
what could be gleaned from their reports, and from the evidence of
the plaintiffs,
it is clear that as a result of the unlawful arrest
and detention and malicious prosecution, the plaintiffs suffered from
post-traumatic
stress disorder. However, the plaintiffs' sequelae as
a result of the wrongs committed against them cannot solely be
attributed
to their unlawful arrest and detention and malicious
prosecution. There is evidence that before her arrest, Mrs Phasha was
depressed
as a result of the death of her husband and that some
members of the community had also accused her of being a witch. Mr
Bila fled
from the civil war in Mozambique leaving his family behind
and he did suffer from some physical ailments before his arrest which
led to him no longer working in the mines. However, the effects of
their wrongful incarceration cannot be minimised.
[33]
Counsel for the
plaintiffs has referred this court to a number of previous decisions
to consider in determining what would be an
appropriate amount for
compensation. In
Mofokeng
v Minister of Police
[2]
the appellants were awarded R90
000.00 each for their unlawful arrest and detention for 48 hours. I
was also referred to
Khanyile
v Minister of Police
[3]
where the plaintiff was awarded
an amount of R110 000.00 for his unlawful arrest and detention for 56
hours.
[34]
In
Protea
Assurance
Co
Ltd
v Lamb
[4]
the court held that:
"It should be emphasised,
however, that this process of comparison does not take the form of a
meticulous examination of awards
made in other cases in order to fix
the amount of compensation; nor should the process be allowed so to
dominate the enquiry as
to become a fetter upon the Court's general
discretion in such matters. Comparable cases, when available should
rather be used
to afford some guidance, in a general way, towards
assisting the Court in arriving at an award which is not
substantially out of
general accord with previous awards in broadly
similar cases, regard being heard to all the factors which are
considered to be
relevant in the assessment of general damages. At
the same time it may be permissible, in an appropriate case, to test
any assessment
arrived at upon this basis by reference to the general
pattern of previous awards in cases where the injuries and their
sequelae
may
have been either more serious or less than those in the case under
consideration".
[35]
As indicated above
Mrs Phasha and Mr Bila were arrested and detained for a period of 305
days and 301 days, respectively. However,
I am of the view that the
defendant cannot be held liable for the total period the plaintiffs
were in custody. After the OPP had
issued an instruction for the
charges against the plaintiffs to be withdrawn, it was not up to the
police to bring this instruction
to the court's attention on the next
appearance of the plaintiffs. It was within the jurisdiction of the
prosecutor to have done
so. The National Director of Public
Prosecutions has unfortunately not been cited in this regard.
Nevertheless, if one takes into
account that the plaintiffs were in
unlawful detention for such a long period (less the unlawful
detention attributed to the prosecution)
I am of the view that the
period of their unlawful detention was awfully long. Having taken
into account the circumstances under
which the plaintiffs were
arrested and detained, the period of their detention and the
embarrassment and humiliation they must
have suffered, the impact
their experiences must have had on them and having taken into account
the previous decisions I was referred
to, I am of the view that a not
so substantial award ought to be made for the wrong committed against
them. I am of the view that
an amount of R930 000.00 and R750 000.00
for the unlawful arrest and detention of the first and second
plaintiff, respectively,
would be appropriate compensation under the
circumstances.
[36]
With regard to the
malicious prosecution claim, one has to take into account, as
correctly found by Judge Teffo, that there was
no basis for the
accusations which led to their arrest to be made and for them to
suffer attending court where they were sworn
at and harassed by the
crowd who came to attend their court appearances. I am of the view
they were humiliated and their dignity
impaired. For the pain and
suffering they endured and the impairment of their dignity as a
result of their prosecution, which prosecution
was set in motion by
Captain Tjale, I am of the view that an award in the amount of R150
000.00 each would be appropriate under
the circumstances.
[37]
With regard to the
loss of earnings, counsel for the defendant disputed, correctly so,
the amounts of R3200.00 per month and R2800.00
per month
averred by Mrs Phasha and
Mr Bila as being their monthly earnings before their arrest on the
basis that the plaintiffs were not
registered traditional healers and
could therefore not have charged what is not have charged the
regulated amounts. However, the
defendant did not provide any
evidence to gainsay the claims made by the plaintiffs. I am satisfied
that the amounts suggested
by counsel for the plaintiffs are
justified and that the plaintiffs should be awarded amounts of R444
074.00 and R408 079.00 should
be awarded to the first and second
plaintiff, respectively.
[38]
With regard to
loss of future earnings, I am satisfied that as a result of the
reputational damage caused to the plaintiffs due
to the accusations
made against them and their unlawful arrest and detention, it should
be difficult for the plaintiffs to restore
the trust the members of
the community had in them and for them to trust them sufficiently and
to secure their services. There
has been an attempt on the part of
Mrs Phasha to mitigate her losses. However, the reputational losses
she has suffered has prevented
even the brick selling business to
take off. Under the circumstance I am satisfied that both plaintiffs
are entitled to be compensated
for future loss of income. I am of the
view that the amounts suggested on behalf of the plaintiffs for
future loss of income are
reasonable and ought to be awarded.
[39]
I am of the view
also that the plaintiffs are entitled to future medical expenses if
one takes into account the psychological suffering
they had to endure
throughout this sordid ordeal. However, I am of the view that an
amount of R20 000.00 for each of the plaintiffs
would be appropriate.
[40]
Accordingly the
following order is made:
1.
The Defendant is ordered to pay to the First plaintiff pay:
1.1 an
amount of R444 074.00 in respect of past loss of income;
1.2 an
amount of R575 032.00 in respect of future loss of income;
1.3 an
amount of R20 000.00 in respect of future medical expenses;
1.4 an
amount of R930 000.00 in respect of the plaintiff's unlawful arrest
and detention; and
1.5 an
amount of R150 000.00 for malicious prosecution.
2.
Interest on the above amounts to be charged at the rate of 15.5% from
the date of this order.
3.
The above amounts to be paid within 30 days of this order into the
trust account of the First Plaintiff's attorneys whose details are
listed below:
Trust Account:
Account Holder: Savage Jooste &
Adams
Bank: Standard Bank
Branch: Church square
Branch Code: 010 045
Account No: [...]
Reference No: ARR3
4.
The Defendant is also liable to pay:
4.1 the
taxed or agreed costs of this action on an attorney and client scale,
including the costs of the
instructing attorney's correspondent
attorneys, Savage Jooste and Adams Incorporated, Pretoria;
4.2 the
qualifying expenses and reservation costs, the taxed or agreed costs
attached to the procurement
of the medico-legal and other report as
well as their preparation and actual qualifying fees of the following
experts:
4.2.1
Dr Tony Birrell;
4.2.2
Dr JD Nel;
4.2.3
Mr Leon Roper;
4.2.4
Dr Daan De Klerk;
4.2.5
Mr Kobus Truter;
4.2.6
Mr Greg Whitaker;
4.2.7
Dr Oosthuizen and Engelbrecht Radiologists; and
4.2.8
Burger Radiologists (Dr Arthur Winter).
4.3 The
taxed or agreed travelling, accommodation related costs incurred in
respect of the First Plaintiff's
Pretoria attorneys and counsel,
attending consultations in Polokwane on 20 September 2015; 02 October
2015 and 26 November 2015.
5.
The Defendant is ordered to pay to the Second Plaintiff:
5.1 an
amount of R408 079.00 in respect of past loss of income;
5.2 an
amount of R154 609.00 in respect of future loss of income;
5.3 an
amount of R20 000.00 in respect of future medical expenses;
5.4 an
amount of R750 000.00 in respect of the plaintiff's unlawful arrest
and detention; and
5.5 an
amount of R150 000.00 for malicious prosecution.
6.
Interest on the above amounts to be charged at the rate of 15.5% from
the date of this order.
7.
The above amounts to be paid within 30 days of this order into the
trust account of the Second Plaintiff's attorneys whose details are
listed below:
Trust Account
:
Account Holder: Savage Jooste &
Adams
Bank: Standard Bank
Branch: Church square
Branch Code: 010 045
Account No: [...]
Reference No: ARR3
8.
The defendant is also liable to pay:
8.1 the
taxed or agreed costs of this action on an attorney and client scale,
including the costs of the
instructing attorney's correspondent
attorneys, Savage Jooste and Adams Incorporated, Pretoria;
8.2 the
qualifying expenses and reservation costs, the taxed or agreed costs
attached to the procurement
of the medico-legal and other report as
well as their preparation and actual qualifying fees of the following
experts:
8.2.1
Dr Tony Birrell;
8.2.2
Mr Leon Roper;
8.2.3
Dr Daan De Klerk;
8.2.4
Mr Kobus Truter;
8.2.5
Mr Greg Whitaker;
8.2.6
Dr Oosthuizen and Engelbrecht Radiologists; and
8.2.7
Burger Radiologists (Dr Arthur Winter).
9.
The taxed or agreed travelling, accommodation related costs incurred
in respect of the Second Plaintiff's Pretoria attorneys and counsel,
attending consultations in Polokwane on 20 September 2015;
02 October
2015 and 26 November 2015, including counsel's fees, taxed or agreed
fees of the plaintiffs' counsel, Adv S Guldenpfennig.
___________________
NP Mngqibisa-Thusi
Judge of the High Court
Appearances
For the Plaintiffs: Adv S
Guldenpfennig SC
Instructed by: Savage Jooste &
Adams
For the Defendant:
Instructed by: State Attorney
[1]
2009(5) SA 85 (SCA) at [26].
[2]
(2014/A3084) [2015] ZAGPJHC 30 (17 February 20150).
[3]
(33478/11) [2013] ZAGPJHC 234 (5 August 2013).
[4]
1971 (1) SA 530
(A) at 535H-536B.