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[2012] ZAECELLC 8
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King v Minister of Police (EL: 801/10, ECD: 1701/10) [2012] ZAECELLC 8 (15 May 2012)
9
IN
THE HIGH COURT OF SOUTH ARICA
EASTERN CAPE
DIVISION, EAST LONDON
In
the matter between:
Case no: EL: 801/10
ECD: 1701/10
Date Heard: 09/05/12
Date delivered:
15/05/12
NOMEZA KING N.O.
...............................................................
PLAINTIFF
and
MINISTER OF POLICE
FOR THE REPUBLIC
OF SOUTH AFRICA
…............................................................
DEFENDANT
_____________________________________________________________
JUDGMENT
_____________________________________________________________
SMITH J:
[1] Nosipho Mary-Ann
King instituted civil action against the Minister of Police for
damages suffered as a result of an assault
upon her by a member of
the South African Police Services on 25 January 2010. She was 44
years old at the time. Ms King initially
claimed an amount of R1.8
million, under various headings of damages, including general damages
for pain and suffering and
contumelia
. The other claims, which
related to future loss of earnings and past and future medical
expenses, have since been abandoned. Ms
King has in the meantime
passed away and her daughter, Nomeza King, who is also the executor
of her estate, has been substituted
as Plaintiff.
[2] At the hearing of
the matter the merits were conceded by the Defendant and I have
ordered that the Defendant is liable to compensate
the Plaintiff for
such damages as she may be able to prove in due course.
[3] The parties did not
call any witnesses in respect of
quantum
and I am required to
determine reasonable damages on the bases of the following admitted
facts:
Ms King was assaulted
by a court orderly, one Inspector Shabalala, at the Magistrate’s
Court building in East London, during
court hours and in full view
of members of the public and the media;
Several photographs
were taken by the media and these were published in the Daily
Dispatch and Sun newspapers respectively;
The colour photo which
was published in the Daily Dispatch, depicts Ms King with an open
wound on the right side of her head and
blood streaming down her
right cheek;
(d) A colour photo,
which appeared in The Sun under the heading:
“
Klapped
in court... by a cop!”, depicts Ms King being helped by a
uniformed police officer and a member of the public to board
an
ambulance;
Another colour photo,
which had been downloaded from the Daily Dispatch website, depicts a
bloodied Ms King with an almost naked
upper body (and apparently
only wearing a bra), pointing to a wound on her right upper thigh;
The contents of a
medico-legal report compiled by Dr Deon Le Roux, a neurosurgeon,
have also been admitted. This report was compiled
by Dr Le Roux on
the basis of an examination which took place on 27 July 2011, some
18 months after the assault. Dr Le Roux concluded
that Ms King had
sustained only superficial and minor injuries of the skin, that she
did not suffer any disability or loss of
amenities as a result of
the injuries and that her life expectancy remained unchanged. He had
noted however that she complained
of intermittent dizziness, which
was mostly weather related, as well as related headaches. He also
noticed a swelling on her
head;
It is common cause
that Ms King had sustained the following injuries as a result of the
assault:
(i) abrasions on both
the right elbow and right thigh;
(ii) bruises on the
right breast, left chest, both sides of her back, as well as the
right hand;
(iii) bruises, open
wounds and tenderness on the right arm;
(iv) haematomae on the
left back and left eye; and
(v) lacerations (all
about 2 cm each) on the scalp, left eye and lower leg.
(h) The clinical
records relating to Ms King’s admission and treatment at the
Frere Hospital were also admitted. These notes
evince that Ms King
was admitted to the Frere Trauma Unit at 15H30 on the 25
th
of January 2010. She was fully conscious and awarded fifteen on the
Glasgow Coma Scale. She had the injuries which are listed above,
received appropriate treatment in the casualty unit and the
lacerations were sutured. She was discharged and given analgesics and
antibiotics. She however returned three days later and complained of
dizziness, headaches and vomiting.
[4] It is trite that
the assessment of general damages for pain, suffering and shock is a
subjective inquiry which depends,
inter alia
, on the time,
degree and intensity of the discomfort and suffering. In determining
a fair sum our courts generally have regard
to comparable previous
decisions. While this is a salutary practice which ensures
consistency and fairness, no two cases are the
same and courts should
guard against slavishly adhering to precedents to the extent that
their discretions may be impermissibly
fettered. (
Protea Assurance
Co Ltd v Lamb 1971 (1) 530 (A)
at 535 A-536B). An award in
respect of
contumelia,
which relates to the impairment of the
dignitas
of a person is also made
ex aequo et bono
and
any aggravating or mitigating circumstances are taken into account in
order to arrive at a fair sum.
[5] Mr
Ntsaluba
,
who appeared for the Plaintiff, submitted that an amount of R150
000.00 would be fair under the circumstances. He relied in this
regard on
Peterson v Minister of Safety and Security 2011 (6K6)
QOD (ECG).
In that matter Plasket J awarded damages in the amount
of R120 000 (present day value being R139 000.00) for the assault by
a police
officer on a prisoner. The learned judge was particularly
outraged by the conduct of the policeman which he described as
thug-like
and disgraceful. The plaintiff had suffered wounds on the
head and jaw and widespread abrasions on the back, shoulder blades
and
buttocks. While the plaintiff did not suffer permanent injuries,
the learned judge took into account that he had suffered pain for
a
few days after the assault.
[6] Mr
Ndzondo,
who
appeared for the Defendant, submitted that damages between R90 000.00
and R100 000.00 would be fair and reasonable under the
circumstances.
Mr
Ndzondo
relied for his submission in this regard on
Bennet
v Minister of Police and Another
1980 (3) SA 24
(CPD),
where
damages in the amount of R600-00 (2011 value being R15 000) and
Ramakulukusha v Commander, Venda National Force
1989 (2) SA 813
(VSC),
where the court awarded damages in the amount of R15
000.00 (the 2010 value being R96 000.00).
[7] I am of the view
however that these cases are not very helpful in determining a
reasonable sum of damages in this matter. Both
these cases were
decided before the adoption of the Constitution and under entirely
different political and socio-economic circumstances.
It is settled
law that our courts now generally tend to award higher damages in the
light of the fact that rights relating to,
inter alia
,
privacy, bodily integrity and dignity are now entrenched (and
protected) by the Bill of Rights. Violations of these rights are
generally regarded by our courts in a much more serious light than
was the case previously. I am entitled to have regard to this
tendency when comparing the damages awarded in the older cases. See:
De Jongh v Du Pisanie NO
2004 (2) All SA 565
(SCA),
at 583
paragraphs 64 and 65. The
Peterson
decision (supra) is in my
view therefore a more relevant and helpful precedent.
[8] The circumstances
of the assault upon Ms King are particularly repulsive. She was
assaulted, amongst others, with a stick or
baton and in full view of
members of the public and the media. Although her injuries were
described by Dr Le Roux as being superficial,
the photos which were
taken immediately after the assault suggests that it was not merely a
minor scuffle, but rather a relatively
serious assault. Ms King’s
humiliation was further exacerbated by the fact that the colour
photos depicting her in this embarrassing
situation were splashed in
at least two newspapers with extensive circulations. One of these
photos, which had been placed on the
website of the Daily Dispatch,
depicts her in a humiliatingly semi-naked condition. It is difficult
to conceive of an assault that
could have taken place under more
degrading circumstances. The conduct of Inspector Shabalala was
particularly reprehensible and
repulsive. He had attacked a
defenceless woman on the flawed and flimsy pretext that she had
caused a commotion in court. His actions
were brazen beyond belief
and he had paid scant regard to the fact that the assault was
witnessed by members of the public and
the media. Members of the
police services have a constitutional and statutory duty to protect
the public. While they are required
to keep the peace and enforce the
law in appropriate circumstances, they are by law required to do so
with the necessary restraint,
with due regard to constitutionally
entrenched human rights and to use force only where it is
proportional to the unlawful act
which they are required to stop.
Shabalala has acted with contemptuous disregard for these venerable
and established legal principles.
I am however mindful that damages
should not be decided in spasms of indignation, but rather on the
basis of the above-mentioned
legal principles.
[9] While I am somewhat
at a disadvantage in determining the exact extent and duration of her
pain and suffering, I have taken into
account that the Frere Hospital
clinical records show that Ms King complained of pain and discomfort
three days after the assault
and that she still complained of related
headaches when she saw Dr Le Roux some eighteen months later.
[10] For these reasons
I am of the view that an amount of R140 000.00 in respect of general
damages is justified.
[11] Mr
Ndzondo
was
constrained to concede that costs should follow the result. He also
accepted that the qualifying fees of Dr Le Roux should be
included in
those costs.
[12] Insofar as the
Plaintiff seeks to have two former employees of the Daily Dispatch
declared as necessary witnesses, Mr
Ndzondo
submitted that
because the matter had not been ready for trial the Plaintiff was not
entitled to consult with, and have those witnesses
on standby, on the
assumption that the matter would indeed proceed. I do not agree with
this submission. Both parties were equally
to be blamed for the fact
that the Rule 37 minute had not been filed. The Plaintiff was however
entitled to approach the court
for an indulgence in this regard and
to have her witnesses available and ready to testify in the event of
the court granting the
indulgence.
[13] In the result the
following order shall issue:
The Defendant is
ordered to pay the Plaintiff, in her official capacity as executor
of the estate of the late Nosipho Mary-Ann
King, the sum of R140
000.00 as and for general damages;
The Defendant is
ordered to pay the costs of this action on the High Court scale,
such costs to include the qualifying fees of
Dr Deon Le Roux,
together with interest on such costs at the legal rate from a date
14 days after the date of the Taxing Master’s
allucatur
to the date of payment; and
Gcina Ntsaluba and
Mlondolozi Mbolo are declared necessary witnesses.
_____________________
J.E SMITH
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Plaintiff : Advocate Ntsaluba
Attorney for the
Plaintiff : Mgweshe Ngqeleni
First Floor
Old Mutual Building
MTHATHA
Ref: NO/nm/NMAK01
C/o
Mnqandi Inc
62 Steward Drive
Berea
EAST LONDON
Counsel for the
Defendant : Advocate Ndzondo
Attorney for the
Defendant : State Attorney
1
st
Floor
Permanent Building
EAST LONDON
Ref: 719/10-P13
Date Heard : 9 May 2012
Date Delivered : 15 May
2012