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[2014] ZAGPPHC 236
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Skhabela v Minister of Safety and Security and Others (19166/2007) [2014] ZAGPPHC 236 (24 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 19166/2007
DATE:
24 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
JUDAS
SKHABELA
......................................................................................................
PLAINTIFF
and
THE
MINISTER OF SAFETY AND
SECURITY
..........................................
FIRST
DEFENDANT
THE
MEC FOR SAFETY AND SECURITY
NORTH
WEST
PROVINCE
.....................................................................
SECOND
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
BREVITATIS CAUSA I shall
refer in this judgment as per their citation in the main proceedings.
[2]
The first and second
defendants seeks leave to appeal to the Supreme Court of Appeal of
South Africa, alternatively the full bench
of the High Court of South
Africa Gauteng Division, Pretoria, against the whole of my judgment,
on the
quantum
,
handed down on 5 November 2013.
[3]
The appeal emanates from a
claim for bodily injuries sustained by the plaintiff on 3 November
2005 when he was shot and hit in his
right eye with a rubber bullet
by a member of the South African Police Services. As a result of the
said shot, the plaintiff’s
eye was badly damaged and he
completely lost sight in that eye. It should be mentioned that at the
time of the incident the plaintiff
had already lost sight in his left
eye during childhood. He as a result of this incident became
completely and permanently blind.
[4]
The merits part of the
matter was dealt with and finalised by my brother Goodey AJ who
handed down judgment on 26 July 2012. The
defendants were found 100%
liable for the plaintiff’s damages either agreed or proven. I
as a result only determined the
quantum
.
[5]
The defendants’
application is based on various grounds stated in their notice
of application for leave to appeal
in respect of following heads of damages:
a.
Past loss of earnings
:
according to the defendants’ counsel are erred, firstly, in
accepting the contradictory versions presented by the plaintiff
in
respect of the supposed profits made by his business, that is, the
spaza shop, the tavern and the scrap metal business; and
secondly, in
accepting the evidence of the expert witnesses who did not rely on
any documentary proof as to the profits of the
plaintiff’s
business ventures. According to counsel the base calculations
presented to me by the expert witnesses where thumb-sucked
and as
such purely speculative.
b.
Future Loss of Earning
:
the contention is that 1 erred in accepting and concluding that the
Paterson Level B1 scale be used to determine the plaintiff’s
earning potential in respect of future loss of earnings.
c.
General Damages:
the contention is that I
erred in accepting and concluding that the plaintiff is entitled to
the amount of R1 450 000 as adequate
compensation for general
damages.
d.
Future Medical and
Related Costs
:
the argument by the defendants’ counsel on this point is that
when I included the costs for a personal assistance and a
gardener I
failed to take into account that the plaintiff had two wives; and
also to consider that partial rehabilitation is available
to the
plaintiff to make him functional.
[6]
The defendants’
counsel contended at the hearing of the application that the
defendants’ grounds of appeal are based
on the fact that I did
not exercise my discretion properly when determining the quantum
awarded. In this regard he
referred me to the judgment in Southern Insurance Association
v Bailey NO
1984 (1) SA 98
(AD). He in
particular referred me to the following passage at p99A – G:
‘
Any
enquiry into the damages for loss of earning capacity is of its
nature speculative, because it involves a prediction as to the
future, without the benefit of crystal bails, soothsayers, augurs or
oracles. All that the court can do is to make an estimate,
which is
often a very rough estimate, of the present value of the loss. It has
open to it, two possible approaches. One is for
the judge to make a
rough estimate to an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork,
a blind plunge
into the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on the basis of
assumptions resting on
the evidence. The validity of this approach depends 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. But the court
cannot for this reason adopt a non possumus
attitude and make no award.
In a case where the court has before it material on which an
actuarial calculation can usefully be made,
the first approach does
not offer any advantage over the second. On the contrary, while the
result of an actuarial computation
may be no more than an “informed
guess” it has the advantage of an attempt to ascertain the
value of what was lost
on a logical basis; whereas the trial judge’s
"gut feeling” as to what is fair and reasonable is nothing
more
than a blind guess. ... it is not wrong in principle to make an
assessment on the basis of actuarial calculations.
Where
the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial judge
is “tied down by inexorable actuarial calculations”. He
has "a large discretion to award what he considers
right”.
One of the elements in exercising that discretion is the making of a
discount for “contingencies” or
the “vicissitudes
of life”. . . . The amount of any discount may vary, depending
upon the circumstances of the case.
The rate of discount cannot, of
course, be assessed on any logical basis: the assessment must be
largely arbitrary and must depend
upon the trial judge’s
impression of the case.”
[7]
The defendants’
counsel based his argument on this judgment to show that I failed to
exercise my discretion properly. He,
however, misconstrued the
principles laid down in this judgment. In my opinion, on the basis of
this judgment alone no other court
may come to a different
conclusion.
[8]
I in actual fact dealt in
depth with the issues raised by the defendants in their application
for leave to appeal. As regards damages
for the loss of income I
considered the contradictions the defendants are complaining about
and concluded that they were immaterial.
The contradictions, as the
defendants’ counsel rightly submitted, were in respect of the
profits of the plaintiff’s
business ventures. I found the
contradictions to be immaterial on the basis that the plaintiff did
not rely in his calculations
on the business profits but relied on
the Paterson Level B1 scale, that is, the earning potential of the
plaintiff based on what
he earned in 1999 whilst in the employ of the
Mine.
[9]
It is common cause that the
Paterson Level B1 scale is universally accepted as a tool used to
project income. Since the future is
unknown estimates are used with
the best available evidence to compensate for injuries, and in this
instance the best available
evidence was the salary. Even though tool
is said to be speculative, but as per the Southern Insurance
Association v Bailey NO
above,
it provides a useful guide. The submission by the defendants’
counsel that I erred in accepting the Paterson Level
B1 scale as a
tool to determine the calculations in this instance, is therefore
without merit.
[10]
As regards the general
damages, i quote the following passage in the Southern Insurance
Association
y
Bailey NO
above
judgment at 99H which I find apposite in this instance:
“
The
Appellate Division has never attempted to lay down rules as to the
way in which the problem of an award of general damages should
be
approached. The accepted approach is the flexible one described in
Sandler v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199, namely:
“The amount to be awarded as compensation can only be
determined by the broadest general considerations and
the figure
arrived at must necessarily be uncertain, depending upon the judge’s
view of what is fair in all the circumstances
of the case”. To
adopt a different approach . . . might result in injustice of the
kind referred to in Lim Poh Choo v Camden
and Islington Area Health
Authority
[1979]
2 All ER 910
(HL) at 919.”
The
passage says it all it is not even necessary to elaborate further.
[11]
I am in agreement with the
plaintiff’s counsel that no grounds were raised in the
application for leave to appeal in respect
of the award for damages
for future medical and related costs. I can as a result not consider
this ground.
[12]
I conclude therefore that
on the basis of the grounds raised in the defendants’
application for leave to appeal and as argued
in court, no other
court may come to a different conclusion and the defendants’
application stands to be refused.
[13]
I therefore make the
following order:
a.
The application for
leave to appeal is dismissed with costs.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCE
HEARD
ON THE: 23 APRIL 2014
DATE
OF JUDGMENT :24 APRIL 2014
PLAINTIFF'S
COUNSEL : ADV D. T. SKOSANA
PLAINTIFF'S
ATTORNEY : S. NGOMANE INC. ATTORNEYS
DEFENDANTS'
COUNSEL: ADV SKHOSANA
DEFENDANTS'
ATTORNEY: THE STATE ATTORNEYS