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[2016] ZAGPPHC 172
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D.W v Minister of Police and Another (72485/2012) [2016] ZAGPPHC 172; 2017 (1) SACR 441 (GP) (11 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 72485/2012
DATE:
11/11/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
IN
THE MATTER BETWEEN
D
W PLAINTIFF
AND
THE
MINISTER OF
POLICE 1
ST
DEFENDANT
NATIONAL
PROSECUTING
AUTHORITY 2
ND
DEFENDANT
JUDGMENT
PRINSLOO,
J
Introduction
[1] On
26 October 2011, in the privacy of her home, the plaintiff, then a 22
year old student, and a virgin, was subjected to the
most horrific
attack by one Tsietsi Samuel Msiza ("Msiza") during the
course of which she was also raped.
[2] At
the time of the attack, Msiza was out on bail of some R1 000,00.
Msiza had multiple previous convictions, including
a number of
convictions of rape, to his name.
[3]
The plaintiff instituted a damages action against the two defendants
on the basis of the failure by the relevant prosecutors
and
investigating officers, acting in the course and scope of their
employment with the defendants, to ensure that Msiza was kept
behind
bars as he posed a clear threat to the community.
[4]
Broadly speaking, the action was based on the, by now well-known,
principles laid down in the case of
Carmichele v Minister of
Safety and Security
,
[2001] ZACC 22
;
2001 4 SA 938
(CC), and later again after it
was referred back to the trial court, reported at
2003 2 SA 656
(C).
[5] On
1 September 2014, the parties entered into a settlement in terms of
which the defendants, jointly and severally, accepted
liability for
payment of the plaintiff's proven and/or agreed damages sustained as
a result of the aforesaid attack on her.
[6] I
am alive to the fact that the settlement agreement contains a clause
to the effect that the agreement was to be regarded as
confidential
and the plaintiff would endeavour to maintain and uphold the
confidentiality thereof. It was also provided that
any party
would be entitled to approach the court to make the agreement an
order. Such an order was made on 4 September 2014.
[7]
When the trial came before me, on 31 October 2016, the issue of
confidentiality did not receive any attention. It is not
practically possible to deal with this matter in a judgment, without
disclosing the origin of the claim.
[8]
Before me, Mr Ferreira, SC, appeared for the plaintiff and Mr De
Jager, SC, assisted by Mr Mohlamonyane, appeared for the
defendants.
Brief
references to the medico-legal evidence, as it appears from a number
of expert reports
[9]
Exhibit "A" is a collection of medico-legal reports,
obtained by both the plaintiff and the defendants.
[10]
"A204" to "A231" are colour photographs taken
shortly after the incident, and also at later stages, showing
details
of the knife wounds inflicted on the plaintiff by Msiza during the
attack.
[11]
Exhibit "A" contains medico-legal reports by the following
experts:
• Dr A F Coertze who was the doctor on duty in the emergency
unit of Montana MED 24 on the night of 26/27 October 2011.
• Ms L de Kock, Counselling Psychologist (on behalf of the
plaintiff).
• Dr G Capitani, Clinical Psychologist (on behalf of the
defendants).
• Dr Leon Roper, Clinical Psychologist (on behalf of the
plaintiff).
• Dr S J de V Rawlins, Plastic and Reconstructive Surgeon (on
behalf of the plaintiff).
• Dr Anton Potgieter, Plastic and Reconstruction Surgeon (on
behalf of the defendants).
• Ms Louise Schubert, Industrial Psychologist (on behalf of the
plaintiff).
• Ms Janene White, Industrial Psychologist (on behalf of the
defendants).
• Gerard Jacobson, Consulting Actuary (on behalf of the
plaintiff).
[12]
There is a joint minute recording a meeting between the plastic
surgeons as well as a joint minute recording a meeting between
the
industrial psychologists.
[13]
At the commencement of the proceedings, I was informed that the
parties, through their experts, are in agreement about the
details of
the injuries and the
sequelae
and other related aspects.
No evidence was led. I was informed that I could treat the
contents of all the medico-legal
reports as correct and counsel for
both parties addressed me on the contents of the reports.
[14]
Dr Coertze, on duty in the trauma unit when the plaintiff was
admitted during the early hours of 27 October 2011, describes
her as
-
"A young female patient, well dressed, covered in blood.
She was awake and orientated. Big, gaping, open wounds
(some
still bleeding actively) on the visible parts of the body. Her
clothes and hair were soaked in blood."
Broadly
speaking, it appears that the plaintiff saw off some visitors at
about 23:00 on 26 October 2011 and escorted them outside
leaving
the front door open. She went back into the house, had a
shower, and when she emerged from the bathroom she was confronted
by
Msiza. He first attacked her with a knife, then dragged her to
the bedroom where he raped her and then took several articles
which
included a laptop computer, money and jewelry which he put in a
plastic bag and left. The plaintiff crawled outside
and shouted
for help where she was found by a fellow resident in the complex who
came to her aid.
[15]
Dr Rawlins, Plastic and Reconstructive Surgeon, received a call from
Dr Coertze at about 05:30 on 27 October 2011.
He visited
the traumatised patient in the Intensive Care Unit of the Montana
hospital and started treating her in the operating
theatre at about
09:00.
[16]
In a very comprehensive medico-legal report, Dr Rawlins describes, at
"A104" to "A106", some 22 knife
wounds which
he identified and treated. The wounds were found on the face of
the plaintiff, as well as her neck, left leg,
right leg, left
forearm, left thumb (semi-traumatic amputation) and right fingers.
There were also bruises and contusions
on the right upper leg and
buttock area.
[17] A
gynaecological examination revealed evidence indicating that the
plaintiff had been raped as well as semen which was found
in the
vagina. Specimens were taken for purposes of the police
investigation.
[18]
In one of the head wounds, the metal tip of the knife which was used
during the assault was found embedded in the skull bone.
A
neurosurgeon had to be called to assist with the removal of this
metal segment by drilling away portions of the skull bone.
[19]
The degloving nature of some of the head wounds led to the
displacement of the hair line of the plaintiff.
[20] I
was informed from the Bar that the attacker had been arrested and
that he was still serving a prison sentence.
[21] I
find it useful to quote the following summary which Dr Rawlins
wrote in his report:
"
Opsommend
Die pasiënt het veelvuldige diep en ernstige laserasies opgedoen
in aanranding wat dui op 'n skerp voorwerp soos 'n mes.
Kneuswonde van die onderste ledemaat dui op stomp trauma.
Ginekologiese ondersoek dui op verkragting.
Bloedverlies was lewensbedreigend.
Longkollaps was gedeeltelik en ook lewensbedreigend.
Die afgebreekte metaalpunt in the skedel dui op buitengewone
gewelddadigheid.
Die agt kop- en nek wonde dui ook op die gebruik van maksimale geweld
deur die aanvaller en een so 'n wond in die nek op die vitale
strukture sou die dood veroorsaak het.
Chirurgie het byna 5 ure geduur deur dokters S Rawlins en J L
Pretorius, Rekonstruktiewe Chirurgie, dokters P Coertze en J Botha,
Ortopediese Chirurgie asook dokter J Joubert, 'n
Neurochirurg."
Post-operatiewe
verloop
[22]
"Me D W het baie goed herstel van haar fisiese wonde, beide
hande en voorarms moes intensiewe terapie ontvang vir twee
maande.
Gesigswonde het goed genees maar blywende littekens sal permanent
teenwoordig wees op die voorkop, neus, lip en wang.
Sielkundig het sy post-traumatiese stres en angsversteuring oorgehou,
en ook 8 kilogram in gewig verloor.
Medies is sy op profilaktiese behandeling geplaas vir seksueel
oordraagbare siektes.
Bell's verlamming (gesigspierverlamming) het plaasgevind in die
eerste week post operatief as gevolg van die stres insident,
dokter Jacques Viljoen, 'n Oor, Neus en Keel arts, is daarvoor
gekonsulteer.
Toekomstige verloop
Soos gemeld sal alle littekens permanent wees en moontlike litteken
revisie van veral die neus en wang mag nodig wees.
Revisie chirurgie mag ook nodig wees aan beide hande.
Sielkundig mag jare se psigoterapie asook psigotrope medikasie
benodig word.
Koste aan chirurgie teen huidige tariewe word beraam op R150 000,00
tot R200 000,00. Psigiatriese (behandeling)
kan ook soveel
beloop en dit selfs oorskry."
[23]
According to the report of the Industrial Psychologist, Ms Louise
Schubert, the plaintiff was in her third year as a […]
student
at the University of Pretoria when the incident occurred in October
2011. To her credit, she completed the degree
in […].
She did not experience an immediate delay in her studies after the
incident. However, due to the
sequelae
of the injuries,
to which I will refer hereunder, she could only complete the standard
two year Honours degree in three years.
This happened because
she failed two subjects in 2012 and two subjects in 2013. She
was therefore required to repeat the
particular subjects in 2013 and
in 2014. The incident contributed to a one year delay in her
theoretical/academic studies,
which has resulted in a one year
penalty with reference to recognition of years' experience as a […].
This loss has
been taken into account by Actuary Jacobson in his
report.
I add
that, after some negotiations about an appropriate contingency
percentage deduction in respect of the post-trauma career path,
the
parties agreed on the correctness of the actuarial report. The
percentage deduction agreed upon was incorporated in the
actuarial
calculation.
[24]
In his Neuro-Psychological Report of December 2014, Dr Leon Roper,
Clinical Psychologist, lists the following current complaints
experienced by the plaintiff as relating to the incident in question:
• Concentration difficulties. She has been struggling to
concentrate since the incident. She would forget her
train of
thought and would struggle to express herself and to give directions.
I add that while the plaintiff was still busy with her post graduate
studies, she was employed as a student […] from April
2012 to
December 2013 and thereafter, with another employer, as a junior […]
from January 2014 to May 2014 and, lastly,
as a junior […]
with the firm of […]s in Pretoria until she was retrenched,
very recently, with effect from 30 November
2016.
• Forgetfulness. The plaintiff has been forgetful of
completing certain checks in her work since the incident.
She
had been a more thorough person prior to the incident.
Colleagues and superiors have needed to repeat instructions to
her.
• Problems with mental alertness. The plaintiff reported
problems with mental alertness and indicated that it has been
taking
her longer to understand instructions.
• Decreased energy. She has suffered from decreased energy
levels since the incident. She has reportedly needed
to sleep
more than before.
• Learning difficulties. She reported that she had
experienced learning difficulties after the incident which meant
that
she took longer to complete her studies, as I have described.
• Depression. She had suffered from depression following
the incident and reported increased tearfulness and feelings
of
sadness related to thoughts about the incident. She also
experiences sadness nearly every day when she would see the scarring
to her body.
• Self-esteem difficulties. She had been taking good care
of her body prior to the incident. She indicated that
she has
been feeling self-conscious about the scarring to her body.
• Concerns for the future. The plaintiff reported that she
has been worried about whether anyone would want to marry
her after
the rape. She is unsure whether she would experience a normal
marriage under these circumstances. As mentioned,
she was
a virgin at the time of the attack and it had been important to her
to "save herself" for the marriage.
• She experienced feelings of detachment to her religion,
despite her deep religious feelings prior to the incident.
• Irritability. She has been more irritable since the
incident and has been lashing out at people verbally. She
was
also rude to people at times as a result of her irritability.
• Decreased effectiveness at work. She indicated that she
has not been as effective at work as others due to her cognitive
difficulties and that she has needed to assume more junior
responsibilities in comparison to her colleagues.
• Nightmares. She suffered from regular nightmares after
the incident and was still suffering from occasional nightmares.
• Increased anxiety. After the incident she has been more
nervous and has been experiencing a decreased capacity to
manage
pressure. She had been unable to live alone since the incident
and has moved in with her mother. She has been
unable to go to
places alone since the incident. She has experienced an
increased sense of vulnerability.
• Social withdrawal. The plaintiff reported that she had
withdrawn socially initially following the incident.
She lost
some friends in the process.
• Decreased effectiveness at work. She indicated that she
has been feeling afraid when she would visit construction
sites for
her work. She reported that she has been feeling afraid to walk
alone at the construction site and this has been
affecting her
effectiveness at work.
[25]
In assessing the plaintiff's psychological functioning, Dr Roper
identified the following psychological symptoms:
• At the time of the assessment the plaintiff was suffering from
a Post-Traumatic Stress Disorder related to her involvement
in the
incident. This is evidenced by some of the symptoms which I
have already mentioned and will not repeat.
• In addition to the above, the plaintiff was found to be
suffering from a Major Depressive Disorder as evidenced by some
13
symptoms listed by Dr Roper which I deem unnecessary to
repeat.
• Dr Roper performed a neuro-psychological assessment to
establish the nature and severity of any cognitive impairment and
how
this may have impacted on the plaintiff's ability to function
interpersonally and occupationally. Given her educational
background, the plaintiff's results were expected to fall within
about the above average range but, surprisingly, the majority
of the
results were average. The results demonstrated a number of
neuro-psychological deficits.
• The doctor came to the conclusion that the plaintiff has been
rendered psychologically more vulnerable as a result of her
involvement in the incident. Some of the factors which need to
be considered included possible pre morbid psychological
vulnerability which, presumably, would have been aggravated by the
incident; the presence of the Post-Traumatic Stress Disorder,
the
presence of a Major Depressive Disorder; significant self-esteem
difficulties in the wake of the traumatic event; reduced cognitive
functioning with particular reference to attention and concentration
abilities.
As far as occupational functioning is concerned the doctor lists a
number of factors which are considered to have the potential
to
impact negatively on the plaintiff's occupational functioning and
career progression. These include: increased levels
of
irritability, increased anxiety, concentration and memory
difficulties, decreased motivation and energy, self-esteem
difficulties
and social withdrawal.
I add that Dr Roper consulted with the plaintiff's supervisor who was
concerned about the plaintiff's confidence at work and worried
about
her "performance not being up to scratch" at work.
The supervisor told the doctor that her employers have
not allowed
her to run her own projects and other people have been progressing
more quickly than the plaintiff.
[26]
The specific and specialised tests to which the plaintiff was
subjected, with specific regard to the Mood and Behavioural
Disorders, yielded a result of a Whole Person Impairment of 10%.
This impairment rating of 10% should be combined with those
ratings
as calculated by the relevant medical experts.
[27]
Dr Capitani, Clinical Psychologist Specialising in Neuro-Psychology,
says the following about the plaintiff in a very comprehensive
report:
"She is considered an emotionally and psychologically vulnerable
employee who is expected to continue to experience in some
work
situations some insecurity, uncertainty or sense of inadequacy with
insufficient self-confidence and somewhat withdrawn or
timid, but at
other times some irritability, impatience and abrupt, and defensive
or dismissive. This appeared associated
with her changed or
scarred and negative self-image of herself, no longer her original,
innocent and whole self, and forced to
be someone different or not
quite herself. She appears to dislike this immensely, and which
colours and affects or influences
her current interactions in all
spheres of life, ie career, family, personal and social
relationships. Furthermore, at some
periods this seems to
escalate and result in moderate to severe depression with suicidal
thoughts, it would appear approximately
twice per annum. This
is considered likely to interfere with her progression in her career
as well as her various relationships
in her work, family, personal
and social environments ..."
[28]
Dr Capitani recommends that the plaintiff requires supportive
psychotherapy, and in the future as well, and allowances should
be
made for at least twelve sessions per annum for a period of fifteen
years. The projected costs are also supplied.
With
regard to quantifying the plaintiff's pre- and post-accident career
path, the doctor defers to the opinion of the Industrial
Psychologists.
[29]
In their joint minute, the two Industrial Psychologists referred to,
after some debate it seems, agreed on the projected pre-trauma
and
post-trauma career paths of the plaintiff:
• They agreed on the plaintiff's educational history as set out
in the respective reports, and that she was a third year […],
Univerity of Pretoria student when the incident occurred. With
regard to the plaintiff's expected earnings growth as a registered
[…] (pre trauma) the two experts agreed on the postulated
annual income (in 2016 terms) as well as postulated increases
in
earnings until age 45. They agreed on the indicated earnings
level which is commensurate to a Paterson D3 median and other
statistics. The plaintiff would likely have reached the
indicated level by the age of approximately 50 years with
inflationary
increases thereafter until normal retirement which was
pitched, by agreement, at 65.
• Post-incident, the experts agreed that the plaintiff missed
one year's experience due to the
sequelae
of the incident so
that she was subjected to a delay in earnings progression as
explained in the reports. They also agreed
on the likely
pre incident earnings, as mentioned, and the actual earnings for
the period May 2013 to April 2014. They
also agreed that a
higher than normal post incident contingency deduction should be
applied when calculating the post trauma
career path.
The experts agreed that the plaintiff's future employment prospects
will be affected because she is psychologically considerably
more
vulnerable and she will "likely have a lifelong path to
recovery". Her resilience (a key competency on senior
levels of work) is likely one of her most affected aspects and would
have a profound impact on her endurance/perseverance and emotional
stability in her career. There will be an ongoing sense of
inadequacy, insecurity and uncertainty. The experts agree
on a
whole list of factors and symptoms which will affect the ability of
the plaintiff in the workplace, most of which I have already
mentioned.
It was agreed that the plaintiff will not be an equal competitor in
the open labour market. These psychological deficits
will
impact negatively on her occupational proficiency and will continue
to have a direct impact on her performance, productivity,
career
progress and earnings potential.
• In conclusion, the experts agreed that the plaintiff will be
restricted with regards to potential fields of work and will
be
reliant on a sympathetic employer. They referred to the
retrenchment process which, as I indicated, has now become a reality,
and that the plaintiff has been retrenched with effect from the end
of November 2016.
It was agreed that post-incident the plaintiff would in all
likelihood reach a Paterson D2 median level of earnings by
approximately
age 50 and thereafter she will experience inflationary
increases until normal retirement age.
As I mentioned, the experts agreed that a higher post-incident
contingency percentage deduction should be applied to the projected
post-trauma earnings. The possibility of early retirement was
also mentioned. In the latter regard, Actuary Jacobson,
however, assumed the same retirement age of 65 for pre and
post morbid career paths. This will result in a lower
award than would be the case if early retirement is assumed.
The actuary applied all the figures agreed on by the two Industrial
Psychologists and he also applied the 40% contingency deduction
in
the post trauma career calculation agreed upon by counsel after
some debate.
In addition, Actuary Jacobson also calculated the projected future
medical expenses on the strength of the various reports.
Special
damages agreed upon
[30]
Counsel pointed out to me that the following items of special damages
were settled between the parties:
Past medical expenses
R172 549,25
Extra university fees incurred because of lost time
and failed
subjects
R 27 480,00
Estimated future medical expenses (as per
actuarial
calculation)
R308 633,00
Loss
of earnings agreed upon
[31]
The parties agreed to adopt the calculation reflected under Basis II
of Actuary Jacobson's report. This reflects the
20%
Differential Post-Morbid contingency deduction.
[32]
The result comes to an amount of R5 221 715,00.
[33] I
now turn to the question of general damages.
General
damages
[34]
It seems to me to be appropriate, and convenient, to observe that, in
a case of this nature, a plaintiff has three separate
actions
available to her in respect of which she can claim compensation for
the damages sustained.
In
particular, it seems that two of those actions come into play, in a
case such as the present, where compensation falls to be
considered
under the broad heading of "general damages".
[35] I
make brief remarks about the three actions:
(i)
Actio legis Aquiliae
[36]
In Neethling-Potgieter-Visser
Law of Delict
, 7
th
edition, the learned authors say the following at p10:
"Whatever the end result was in Roman-Dutch law, the
abovementioned decisions nevertheless give the impression that, in
modern
South African law, aquilian liability results from every
culpable and wrongful act which causes patrimonial damage."
For
the sake of brevity, I refrain from referring to any of the
authorities relied upon by the learned authors.
In
Neethling,
Persoonlikheidsreg
4
th
edition the
learned author says the following at p135 where he deals with the
actio legis aquiliae
:
"Indien
'n persoon ook vermoënskade as gevolg van die krenking van sy
corpus
oploop, soos mediese koste of verlies aan verdienste of
verdienvermoë, kan dit met die
actio legis aquiliae
,
waarvoor nalatigheid 'n voldoende skuldverwyt is, verhaal word."
[37]
It is obvious that this action is available to the plaintiff to claim
compensation for the patrimonial loss, already dealt
with, in the
form of loss of income as well as special heads of damage such as
past medical expenses, future medical expenses and
university
expenses.
(ii)
Actio iniuriarum
[38]
The authors
Neethling-Potgieter-Visser, op cit,
say the
following when discussing this action at page 14:
"In short then, an
iniuria
is the wrongful, intentional
infringement of or contempt for a person's
corpus
,
fama
or
dignitas
."
On
page 15 they state:
"On the other hand, one encounters decisions that correctly
interpret the concept of
dignitas
in its broad common law
meaning and refuse to restrict its application to the personality
interest of 'dignity'. The leading
decision in this regard is
O'Keeffe v Argus Printing and Publishing Co Ltd
(the reference
is
1954 3 SA 244
(C)). Watermeyer AJ (at 247-248) accepted that
the
actio iniuriarum
is available for 'an intentional wrongful
act which constitutes an aggression upon [a plaintiff's] person,
dignity or reputation'.
... It is evident from the
judgment that the Judge interpreted
dignitas
so widely that it
encompasses all aspects of the legally protected personality, ... as
such,
dignitas
cannot be considered as a single interest of
personality; it is rather a concept encompassing all 'those rights
relating to ...
dignity'."
[39]
The author,
Neethling, op cit,
says the following at 133 when
discussing this particular action:
"Staan dit vas dat die dader die fisies-psigiese integriteit van
die benadeelde op onregmatige en opsetlike wyse aangetas
het, kan
laasgenoemde genoegdoening met die
actio iniuriarum
verhaal.
... Hoe dit ook al sy, omdat
solatium
primêr vir
gekwetste gevoelens toegeken word, is die
quantum
daarvan
uiteraard in die eerste plek afhanklik van die intensiteit of omvang
van die affektiewe of gevoelskrenking ('sentimental
loss') wat die
eiser weens die
contumelia
of die minagting van sy liggaam
ervaar het.
Contumelia
moet hier nie as
sinoniem vir
belediging
opgevat word nie, maar eerder in die sin van 'n gevoel
van verontregting wat uit die minagting van die liggaam resorteer."
(iii)
Action for pain and suffering
[40]
Neethling-Potgieter-Visser, op cit,
say the following at p16:
"The action for pain and suffering has been adopted by South
African law and is considered by the courts, just as in Roman-Dutch
law, to be a unique action that cannot be classified with the
actio
legis aquiliae
or with the
actio iniuriarum
. The
courts, however, continued to develop the action, with English law
playing an important role, to the extent that it
now protects the
physical-mental integrity of a person in its entirety. In
addition to pain, suffering and disfigurement,
which had already been
identified at common law, this protection is particularly apparent
insofar as psychological or mental injury
is equated with physical
(bodily) injury in the area of emotional shock, and loss of (or
shortened) life expectancy, amenities
of life and health are
recognised as injuries to personality for which compensation may be
claimed."
[41]
Neethling, op cit
, when discussing the "aksie weens pyn
en lyding", says the following at 134:
"Soos gestel, is die aksie weens pyn en lyding gerig op die
verhaal van (onvolmaakte) kompensasie vir pyn, lyding, skok,
liggaamlike ontsiering, verlies aan lewensgenietinge en verkorte
lewensverwagting as gevolg van 'n skuldige (opsetlike of nalatige)
aantasting van 'n persoon se fisies-psigiese integriteit. ...
Uit bostaande behoort reeds duidelik te wees dat in die
geval van 'n
opsetlike aantasting van die liggaam, die aksie weens pyn en lyding
vir kompensasie naas die
actio iniuriarum
vir genoegdoening
ingestel kan word. By aanranding loop die twee aksies dus
saam. ... Aangesien die doel
of funksie van die
actio
iniuriarum
(
genoegdoeningsfunksie
) van die aksie weens pyn
en lyding (
kompensasiefunksie
) verskil, kan hulle wat
aanranding betref nie oor dieselfde kam geskeer word nie.
Beide
aksies is dus in beginsel by 'n onregmatige en opsetlike
liggaamsaantasting beskikbaar. Hierdie posisie blyk by
implikasie
ook reeds uit die regspraak waar onderskei word tussen
genoegdoening vir
contumelia
en kompensasie vir
fisiese pyn en lyding
." (Emphasis added.)
The
learned author then mentions a few judgments, to illustrate his
observation that the courts have been distinguishing between
compensation for
contumelia
and compensation for pain and
suffering, generally making separate awards in the same judgment on
the strength of these two actions.
I find
it convenient to mention some of these judgments:
• In
Radebe v Hough
1949 1 SA 380
(A) at 384-385, the
learned Judge of Appeal mentioned that there was no separate claim
for damages for
contumelia
by the plaintiff (appellant) who
had been assaulted. An award was therefore made for "pain
and suffering" and the
compensation granted by the lower court
was increased. It is, however, quite clear, that the learned
Judge of Appeal recognised
that separate awards could be made under
the two heads of damage.
• In
Magqabi v Mafundityala and Another
1979 4 SA 106
(ECD) a court orderly forcibly pushed the appellant, who was
attending the court session, back into her seat after she attempted
to get up to leave the court. She particularised her claim as
being R100,00 in respect of the pain and suffering ensuing
from the
assault and R1 400,00 in respect of
contumelia
.
At
110D-F the learned Judge stated:
"His conduct towards her amounted to an abuse of his authority
and constituted an assault on her person which was calculated
to
insult her and which, in addition to causing her physical injury,
also infringed those rights of dignity to which she is in
law
entitled. The appellant was therefore in my view entitled to
succeed in her claim for damages both in respect of her
physical pain
and suffering and in respect of the
contumelia
to which she
was subjected."
Separate
awards
were made
in
respect of the physical injury and the
contumelia
.
• In
Mabona and Another v Minister of Law and Order and
Others
1988 2 SA 654
(SECLD) the appellant had been assaulted and
separate awards were made in respect of shock, pain and suffering and
some measure
of disability, on the one hand and
contumelia
on
the other hand – at 664F-H.
• In
N v T
1994 1 SA 862
(CPD) a lump sum was awarded to
a child who had been raped for "shock, pain and suffering and
contumelia
" – at 864H J.
• In
G Q v Yedwa and Others
1996 2 SA 437
(Tk) the
appellant was injured while he was forcibly circumcised.
Separate awards were made for "shock, pain and suffering"
on the one hand and "
contumelia
(insult)" on the
other hand – at 439F G.
Considering
appropriate awards for the plaintiff in respect of the last-mentioned
two actions
[42]
Counsel referred me to two judgments in which compensation was
awarded after the plaintiff had been raped. Both these
judgments were reported in the well-known work of Corbett and
Buchanan on
Quantum of Damages
.
[43]
In
M v Minister of Safety and Security
2015 (7K9) QOD 18 (ECG)
the plaintiff was arrested without a warrant on a charge of being
drunk and disorderly. She was on
her way home from a tavern and
crossing a street when a police vehicle approached her. She was
placed in the police vehicle
and taken to a police station.
Whilst being detained in the police cell, the plaintiff was pointed
with a firearm and vaginally
raped and sodomised by the cell
commander. She was also detained unlawfully and only taken to a
doctor some hours later.
Subsequently she was also diagnosed
with Post Traumatic Stress Disorder ("PTSD").
There
were some doubts about the diagnosis of PTSD – at paragraphs
[137] to [139].
[44]
The learned Judge, in a comprehensive judgment, analysed a number of
judgments in terms of which awards were made under comparable
circumstances.
He
referred to
Grietjie Afrika v Minister of Safety and Security and
Another
, unreported, Eastern Cape, Grahamstown case number
1714/2008, dealing with the rape of a detainee in the police cells by
a policeman.
In
referring to this case, the learned Judge, in paragraph [154],
pointed out that Grietjie Afrika was awarded R200 000,00
for
contumelia
and R125 000,00 for "general damages".
I could not find a reference to this case in the
Quantum Yearbook
by Robert J Koch, 2016 edition, so that I could not make
out what the updated award would be in present terms.
Given the
date of the judgment, some eight years ago, the updated award could
be substantially more.
[45]
In
M
, now under consideration, the learned Judge awarded the
plaintiff an amount of R100 000,00 for unlawful arrest and
detention
and R425 000,00 for "
contumelia
and
general damages for assault". Counsel before me informed
me that the updated award in respect of the amount of R425 000,00
now comes to some R467 500,00. I could not find the
reference in the
Quantum Yearbook
.
[46]
In
F v Minister of Safety and Security and Another
2015 (7K9)
QOD 1 (WCC) the injured plaintiff was a 13 year old female scholar.
She was assaulted and raped by an off duty
police official after
he offered her a lift home in a police vehicle. The rape was
preceded by repeated assaults resulting
in an open wound to her lips,
multiple contusions to her arm, multiple swellings to her face and
head, swelling of her nose and
multiple contusions to her legs and
torso. The plaintiff was a virgin prior to the incident.
The rape caused tearing
of the vagina, vaginal bleeding, a torn hymen
and loss of her virginity. The incident had far-reaching
implications on her
sense of self, dignity, normal sexual development
and enjoyment of life. The plaintiff still suffered from
untreated chronic
post-traumatic stress and co-morbid Major
Depressive Disorders that required ongoing medical treatment and
life-long medication.
Behavioural
problems caused the plaintiff to be moved to several schools
including an industrial school where she ultimately only
completed
Grade 10. Her work record after leaving school was
erratic. A claim for loss of income was calculated
based on the
employment record of her most successful sibling. A separate
award was made for estimated future loss of
earnings.
[47]
In respect of the attack on her, the child was awarded an amount of
R300 000,00 in respect of
contumelia
and R200 000,00
"for pain and suffering". The judgment dates back to
April 2014. According to the
Quantum Yearbook
, the
updated award would now come to R551 000,00.
In his
comprehensive judgment, the learned Judge, in
F
, also referred
to the case of
Nogqala v Minister of Safety and Security
(ECG
case 676/2011, delivered on 18 June 2012) in which a 22-year old
woman was raped by a policeman in his office.
She was
"not assaulted". She also suffered from
Post-Traumatic Stress Disorder and depression as a consequence
of the
rape. She was awarded R225 000,00 for
contumelia
and R150 000,00 for general damages.
[48]
Although it is convenient, and, indeed, in most cases helpful, to
compare earlier comparable awards before coming to a decision
as to
the appropriate compensation for a particular case under
consideration, I have come to the conclusion that the matters I have
mentioned are of such a nature that, by comparison, an award in
respect of the matter now under consideration should be substantially
higher. In the present case, the life of the 22 year old
virgin was irretrievably changed forever. She was the
victim of
the most horrific attack. She sustained more than 20 serious
stab-wounds, some of them life threatening.
The amount of blood
that she lost was also life threatening. She spent a
considerable period in the Intensive Care Unit.
The young
lady was disfigured for life. The psychological and cognitive
sequelae
are of a serious and permanent nature. She can
no longer compete on the open labour market. She may never be
able to
get involved in a normal marriage relationship. These
symptoms and
sequelae
are, to a large extent, either absent or
considerably less serious in the other matters I have referred
to.
In my
opinion, the award for pain and suffering, in particular, should be
substantially higher in the present case.
[49]
After due reflection, I have come to the conclusion that an
appropriate award, in respect of this portion of the plaintiff's
claim, would be the following:
1. In respect of pain and suffering, disfigurement, psychological and
mental injury, emotional shock and loss of amenities of life
R750 000,00
2. In respect of
contumelia
R350 000,00
TOTAL
R1
100,000,00
Tabulation
of the total award
[50]
For all the reasons mentioned, the appropriate award, in my view,
comes to R6 830 377,25 which is computed as follows:
Past medical
expenses
R
172 549,25
Lost university
costs
R
27 480,00
Future medical
expenses
R 308 633,00
Loss of
income
R5
221 715,00
Pain and suffering and
contumelia
R1
100 000,00
TOTAL
R6
830 377,25
Costs
[51]
The costs should follow the result. Provision should also be
made for the costs flowing from the employment of senior
counsel.
The
order
[52]
Mr Ferreira for the plaintiff furnished me with a draft order,
containing the usual provisions relating to the award, costs,
interest, qualifying fees and related issues.
[53]
The lengthy order that follows, is based on the draft referred to:
1. The Defendants, jointly and severally, are ordered to pay the
Plaintiff the amount of R6 830 377,25.
2. The payment is to be deposited into the trust account of the
Plaintiff's Attorneys of Record with the following details:
Bank: First National Bank
Branch: Pretoria
Branch code: 222026
Account no: [...]
Account holder: Klagsbrun Edelstein Bosman De Vries Inc
Reference: A de Vries/GVT/AD 0128
3. The aforesaid capital amount will not bear interest unless the
Defendants fail to effect payment thereof within 30 calendar
days of
the date of this Order, in which event the capital amount will bear
interest at the
mora
rate of 10,5% per annum (ie 3.5% above
the repo rate of 7%, in accordance with the provisions of the
Prescribed Rate of Interest Act, 55 of 1975
, as amended by the
Judicial Matters Amendment Act, 24 of 2015, and which rate of
interest of 10,5% per annum will be referred to
hereafter as "the
mora
rate"), calculated from and including the
thirty-first calendar day after the date of this Order to and
including the date
of payment thereof.
4. The defendants, jointly and severally, are ordered to pay the
Plaintiff's taxed or agreed party and party costs, which will
include
the following:
4.1 the costs flowing from the employment of senior counsel;
4.2 the costs of the obtaining by the Plaintiff of the reports of the
following experts:
4.2.1 Dr A F Coertze;
4.2.2 Dr S J de V Rawlins;
4.2.3 Ms Louise Schubert;
4.2.4 Mr Leon Roper;
4.2.5 Ms Lourentia de Kock;
4.2.6 Gerard Jacobson Consulting Actuaries;
4.3 the reasonable preparation/qualifying and reservation fees
(if any) of the experts referred to in paragraph 4.2 above,
including the costs of consultations (if any) with the legal
team;
4.4 the costs of obtaining the various joint minutes and the
actuarial calculations, including the actuarial calculations based
on
the joint minutes;
4.5 the reasonable travelling costs of attending the medico-legal
examinations, subject to the discretion of the Taxing Master;
and
4.6 the costs attendant upon the obtaining of payment of the amounts
referred to in this Order.
5. The following provisions will apply with regards to the
determination of the aforementioned taxed or agreed party and party
costs:
5.1 the Plaintiff's Attorneys shall serve the Notice of Taxation on
the Defendants' Attorneys of Record;
5.2 the Defendants shall be allowed thirty calendar days from date of
settlement or of taxation within which to effect payment
of the
agreed or taxed costs; and
5.3 should payment not be effected within the aforementioned period,
the Plaintiff will be entitled to recover interest on the
taxed or
agreed costs at the
mora
rate calculated from and including
the thirty-first calendar day after the date of settlement of the
costs or of taxation, to and
including the date of final payment
thereof.
W R C
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 31 OCTOBER 2016
FOR
THE PLAINTIFF: A C FERREIRA SC
INSTRUCTED
BY: KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC
FOR
THE DEFENDANTS: P J J DE JAGER SC,
ASSISTED
BY D M MOHLAMONYANE
INSTRUCTED
BY: THE STATE ATTORNEY