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[2024] ZANCHC 8
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Huxham N.O and Another v Minister of Police (747/2014) [2024] ZANCHC 8 (2 February 2024)

IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case Number:
747/2014
Heard:
24 and 25 July 2023
Argued
31 October 2023
Delivered:
02 February 2024
Reportable: YES  /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES  /
NO
Circulate to
Magistrates:YES  /
NO
In
the matter between:-
MATTHEW
HUXHAM
N.O.

FIRST PLAINTIFF
MATTHEW
HUXHAM
N.O.

SECOND PLAINTIFF
and
MINISTER
OF
POLICE

DEFENDANT
JUDGMENT
Stanton
J
INTRODUCTION
:-
[1]
On 12 May 2014, the plaintiffs, Mr. Andrew John Huxham and Ms. Faye
Astrid
Huxham, instituted action against the defendant.  The
pleaded claims were:-
1.1
In respect of the first plaintiff for: -
1.1.1
Payment of the amount of R4,400,000.00 as damages
in respect of the
unlawful seizure of sugilite by members of the South African Police
Service on or about 01 September 2011 at
Kuruman.  The claim
amount of R4,400,000.00 was quantified on the basis that the first
defendant, had the sugilite been restored
to him, would have cut,
polished and sold it for this value on the open market in the United
States of America; and
1.1.2
Payment of the amount of R655,000.00 as damages
resulting from his
unlawful arrest, assault and detention, claimed as follows:-
1.1.2.1
R5,000.00 for past hospital and medical expenses;
1.1.2.2
R150,000.00 for estimated future and medical and related expenses;
and
1.1.2.3
R500,000.00 in respect of general damages; and
1.1.3
Payment of the amount of R513,598.30 for damages
as a result of the
malicious prosecution.
1.2
In respect of the second plaintiff for: -
1.2.1
Payment of the amount of R750,000.00 as general
damages resulting
from her unlawful arrest, assault and detention; and
1.2.2
Payment of the amount of R513,598.30 for damages
as a result of the
malicious prosecution.
[3]
According to the particulars of claim, Mr AJ Huxham’s claim for
general damages is based on the following injuries he sustained,
namely: -
3.1
High blood pressure as a result of him not receiving his medication
timeously;
3.2
Contumelia, humiliation and embarrassment; and
3.3
Emotional and psychological trauma,
which resulted in him
suffering from temporary elevation in blood pressure, insomnia,
decreased concentration, anxiety, loss of
weight and appetite,
emotional outburst and bad dreams.
[4]
According to the particulars of claim, Ms FA Huxham’s claim for
general damages is based on the following injuries she sustained,
namely: -
4.1
Contumelia, humiliation and embarrassment; and
4.2
Emotional and psychological trauma.
[5]
It is common cause that Mr AJ Huxham and Ms FA Huxham were arrested
and
detained at Kuruman by members of the South African Police
Service
from 01 September 2011 until 02 September
2011 when they were released without bail.
[6]
The merits and quantum were separated.  The trial in respect of
the
merits proceeded on 16 to 18 October 2018 after which it was
postponed.  On 03 June 2019, prior to the conclusion of the
trial
on the merits,
it transpired that the
criminal case against the plaintiffs was withdrawn.  The
defe
ndant conceded its liability and agreed to pay the
plaintiffs’ proven quantum.
The
sugilite stones were also returned to Mr AJ Huxham at the request of
Mr JCC Cohen, the plaintiffs’ attorney of record.
[7]
Mr AJ Huxham passed away on 14 March 2019 and Ms FA Huxham passed
away
on 22 April 2021.  Mr Matthew Huxham, the executor in their
deceased estates, accordingly substituted them as plaintiffs.
[8]
The plaintiffs’ particulars of claim were thereafter amended
and
the quantum of the first plaintiff’s first claim in respect
of the seized sugilite was increased to R14,400,000.00.
[9]
Save to plead that the seized minerals were not sugilite, but
wesselite,
the defendant in essence denied the contents of all of the
allegations in the particulars of claim and amended particulars of
claim.
[10]
At the commencement of the trial in respect of the quantum: -
10.1
The plaintiffs’ claims for damages as a result of the malicious
prosecution were withdrawn
in view of the fact that both plaintiffs
are deceased; and
10.2
The defendant conceded that the weight of the
returned sugilite was 31,2kg, 2,02 kg less than the confiscated
weight of 33,22kg.
THE
FIRST AND SECOND PLAINTIFFS’ APPLICATION IN TERMS OF UNIFORM
RULE 38(2): -
[11]
In view of Mr Huxham’s passing on 14 March 2019, the plaintiffs
filed an application
in terms of Uniform Rule 38(2) that the
following be admitted into evidence: -
11.1
Mr AJ Huxham’s affidavit, dated 24 July 2018 (“the
affidavit”); and
11.2
The video evidence of Mr AJ Huxham, recorded on 09 November 2018.
[12]
The defendant opposed the application.  Ms S Mahomed, on behalf
of the plaintiffs,
and Mr TL Manye, on behalf of the defendant,
agreed that Mr AJ Huxham’s affidavit and the six videos may be
provisionally
admitted into evidence and that a final ruling in
respect thereof should be made after all the evidence had been
heard.
[1]
[13]
In the affidavit, Mr AJ Huxham stated that: -
13.1
He is a 75 year old male, diagnosed with multiple myeloma and was
hospitalised for a heart attack
during June 2018;
13.2
He deposed to the affidavit in the event that he is too ill to
testify or if he should pass away;
13.3
He personally purchased 32kg sugilite semiprecious gemstones on 17
August 2011 from Art’s
King Co Ltd, a gem dealer in Hong Kong,
for a purchase price of US $350.00, which is confirmed by the copies
of his passport and
the invoice C-020911 attached to his affidavit.
The price was reduced as Art’s King Co Ltd was
superstitious that the
gemstones were unlucky for their company;
13.4
He took half of the sugilite with him and had the other half
transported to South Africa by air
freight;
13.5
The sugilite had a high value and he marked the stones with a diamond
scriber;
13.6
He and Faye went to Kuruman with “a selection of sugilite”
with the intention of
meeting a cutter based in Griekwastad;
13.7
He and Faye were arrested by two armed and hostile police officers.
They did not inform
them of the reason for the search they were
conducting;
13.8
Faye, who has a sensitive demeanour, began to cry;
13.9
The police officers confiscated the chest, informing him that
imported sugilite requires a permit
and in the absence thereof, his
possession is illegal.  A police mechanic broke open the chest
containing the sugilite without
either his consent or a warrant;
13.10
While being detained at the Kuruman police station, one detective
repeatedly shouted at him, telling him
he is a liar.  A group of
approximately 40 police officers taunted him and verbally abused,
assaulted, and humiliated him.
He was pushed to the ground and
forced to kneel to enable the police officers to take photographs of
him with the stones;
13.11
At the scrap yard he was “
paraded around the scale and made
to kneel and pose in various positions … like a monkey for
their entertainment.”
He felt utterly humiliated;
13.12
He was taken back to his cell and his sugilite stones were unlawfully
confiscated from him.  That was
the last time that he ever saw
his sugilite;
13.13
He and Faye were locked up for the night, without being charged or
having been read their rights;
13.14
He informed them repeatedly that he needed to take his hypertension
medication which was in his vehicle,
but they merely ignored him;
13.15
They were not given any food and only water to drink;
13.16
Faye was taken for questioning three times, during which interviews
they called her stupid.  He observed
her to become more and more
shaken and disturbed after every interview;
13.17
He was imprisoned with criminals and felt extremely threatened,
unsafe and in danger of being attacked by
them.  He could not
sleep;
13.18
He was given no receipt for the confiscated sugilite, despite his
repeated requests;
13.19
During his first court appearance, the Magistrate shouted at him and
threatened to hold him in contempt;
13.20
Upon returning to Cape Town, he instructed William Booth to act on
Faye and his behalf.  William Booth
instructed a correspondent
attorney in Kuruman;
13.21
He contacted the magistrate’s office to obtain their appearance
date and was informed that warrants
of arrest had been issued for him
and Faye.  While travelling to Kuruman his car broke down;
13.22
They were found not-guilty of contempt of court;
13.23
Various warrants of arrest were issued and they had to travel to
Kuruman almost every month for more than
a year;
13.24
It was difficult for him to obtain funding to pay his legal expenses;
13.25
His business was adversely affected by the unlawful arrest and
detention and the confiscation of the sugilite;
13.26
He and Faye suffered from regular panic attacks and stress since
their return to Cape Town and they were
plagued by fear and anxiety.
He sought trauma counselling at his own expense, but was not in a
financial position to receive ongoing
therapy.  Medication was
also prescribed for him and Faye;
13.27
He has suffered immensely and continues to suffer from insomnia,
post-traumatic stress, panic attacks and
elevated hypertension which
has had a severe impact on his general health and well-being;
13.28
Faye has become severely incapacitated with nervousness and
post-traumatic stress.  She lost her job
as an
au pair
in
the United Kingdom as she became unable to function.  She
depends on her parents for her maintenance;
13.29
This experience has impacted his and Faye’s lives in every
aspect to such an extent that their former
lives are unrecognisable;
and
13.30
He and Faye fear the police and being out in public.
[14]
The following emerged from the viewing of the video footage:-
14.1
Two sealed police evidence bags were opened in Mr JCC Cohen’s
office on 09 November 2018
in the presence of Mr AJ Huxham, Mr M
Huxham, Mr JFH Huxham and Mr JCC Cohen;
14.2
Mr M Huxham cut the two sealed bags and removed the plastic bags
within and opened same; and
14.3
Mr AJ Huxham immediately responded that the stones inside the bags
were “
rubbish
”, “
not even sugilite
”
and “
not even black manganese
”.  He added
that one “
could not do anything with it
” and that
he would not even put in his driveway.  He added that the stones
were not “
even his stones
” as he had marked and
cut some with a saw, but that the stones in the bags contained no
markings.  He moistened a stone
with water to demonstrate that
it does not have any markings.  He exclaimed that his stones
were stolen.
VIVA
VOCE
EVIDENCE:-
[15]
It is prudent to set out the evidence presented during the trial
prior to my finding
on the admissibility of the affidavit and the
video footage.
[16]
Mr Julian Francis
Hilton Huxham, during his examination in chief, testified that:-
16.1
He is the son of the late Mr AJ Huxham and the brother of the late Ms
FA Huxham;
16.2
He is a gemstone salesman, trained by his father;
16.3
He was not present when his father purchased the stones in Hong Kong,
but his father had informed
him that he had purchased the sugilite in
Hong Kong;
16.4
He saw the sugilite stones that his father had purchased in Hong Kong
before they were unlawfully
confiscated by the defendant, and he
knows their appearance;
16.5
He was present in Mr JCC Cohen's office on 09 November 2018 when the
two sealed evidence bags
were opened.  Mr. JCC Cohen recorded
the video clips and his brother, Matthew Huxham cut open the bags;
and
16.6
The stones in the bags were not the same stones that his father had
purchased in Hong Kong.  They
were of inferior quality, and it
did not have the colour of sugilite.
[17]
When cross examined, Mr JFH Huxham testified that:-
17.1
He saw the stones that his father brought in Hong Kong for the first
time before they were marked,
on the dining room table of their
house;
17.2
His father had informed him that stones were of a good quality.  His
father had determined
the value of the sugilite;
17.3
He confirmed his father stating that the stones opened in Mr JCC
Cohen’s office were not
his;
17.4
There was no need to inspect each and every stone in the bags as he
could see the stones from
the top of the bags that were opened;
17.5
The stones confiscated from his father had a flat surface, but the
stones in the bags had irregular
shapes.  The colour of the
stones bought by his father in Hong Kong were all consistent and had
a dark purple colour, but
the stones in the bags were inferior and of
a completely different colour;
17.6
He conceded that he did not inspect and or analyse any of the stones
in the bags opened in Mr
JCC Cohen's office.  He also conceded
that the Court can only rely on his father’s assessment and
determination of the
clarity and the value of the confiscated stones
versus the stones that were returned to Mr JCC Cohen’s office;
and
17.7
When pushed to answer why he did not need to pick up any stone to
examine it closely for verification,
he replied that it was not
necessary.
[18]
During his examination in chief,
Mr
JCC Cohen testified that:-
18.1
He is the plaintiffs’ attorney of record;
18.2
Immediately after the bags were opened and the videos taken on 09
November 2018, he inquired
from Mr AJ Huxham whether he had any
leftover samples of the original batch of sugilite that he had
purchased in Hong Kong;
18.3
Mr AJ Huxham confirmed that he had a sample left over, which he
requested Mr AJ Huxham to provide
to him; and
18.4
Mr M Huxham brought the sample to his office, which sample is
depicted in the top photo of Mr
J Rothon’s expert report.
[19]
When cross-examined, Mr JC Cohen testified that:-
19.1
When he realised that the original stones were not returned to Mr AJ
Huxham, he immediately requested
him to provide him with a sample of
the stones that he brought from Hong Kong for the purpose of
valuating the original product.
The sample he obtained from Mr
M Huxham was not part of the confiscated stones;
19.2
He instructed Mr J Rothon to attend to a comparative analysis of the
two samples based on his
expertise as a gemmologist and to value both
sampled;
19.3
He was not convinced that both samples were sugilite;
19.4
He could not confirm, in view of the fact that the stones arrived in
South Africa at different
times, whether both batches brought to
South Africa by Mr AJ Huxham were of the same quality or value;
19.5
He conceded that the stones that were delivered to his office could
have been of a different
kind and of a different value.  He also
conceded that the stones that came from Mr AJ Huxham, and stones that
were delivered
from Hong Kong could have been different; and
19.6
He does not know where the samples were mined.
[20]
Mr Jeremy Rothon testified during his examination in chief that:-
20.1
He is a qualified gemmologist and has been a member of the
Gemmological Association of Great
Britain since 1987.  He is
also a member of the Jewellery Council of South Africa.  He
established the Natal Gemmological
Laboratory in Durban during 1990
and was its director until 1990 and again from 1996 to 2007 when it
was re-established.  From
2012 to date, he has been the director
of Gem Lab (Pty) Ltd in Cape Town;
20.2
He was given two samples to evaluate, which samples are depicted in
photographs on page 1 of
his report.  His mandate was to assess
the two samples and to value it;
20.3
The most
important
factor to consider when assessing sugilite is the colour, which
resembles grape jelly;
20.4
With regard to the value of the sugilite, he testified as follows:-
20.4.1
There are no known suppliers of sugilite in South Africa.  He
contacted two
of the biggest suppliers in Cape Town, Mineral World
and African Gem and Minerals, who informed him that they do not deal
with
sugilite anymore and do not intend to do so in the future;
20.4.2
He determined the value based on the overseas market and by making
use of six internet
searches that gave him a reliable indication of
prices, from the lowest quality to the best.  He believes that
the latest
article on sugilite, based on South African facts, is the
most reliable and in accordance with the online selling prices;
20.4.3
He can only comment on the sample that was provided to him as he
never saw the
sample that was confiscated;
20.4.4
With reference to sample one, he estimated a reasonable average yield
of between
50 to 60%;
20.4.5
He conceded that the specific gravity of sample one of 2.83 means
that it is not
pure sugilite, but a very good quality and 80%
sugilite;
20.4.6
The second stone he assessed was of a low quality, which could be
qualified as
mine run, which is “
basically scrap
”
and that without being rude he would put in a fish tank or “
turn
it into very low-quality beads
”.  Sugilite of this
quality is either discarded or auctioned off, so the prices can
differ quite considerably;
20.4.7
For the purpose of his evaluation, he worked with a round figure of
33kg or 33,000g;
20.4.8
In respect of sample 1, he estimated that the wholesale price for a
cabochon and
polished cut would amount to approximately R900.00 per
gram, which would result in a claim of R14,400,000.00 for 33kg;
20.4.9
He estimated the value of sample 2 at R42.70 per gram and the value
of the 33kg
at approximately R2,400,000.00.
[21]
During cross-examination, Mr J Rothon:-
21.1
Testified that he received both samples from Mr. JCC Cohen, but he
does not know where the samples
came from. He stated that both
samples were sugilite. The sugilite that was bought in Hong Kong
could have come from anywhere in
the world, including South Africa.
He could not express an opinion pertaining to the other stones in the
bag as he was only given
one stone as a sample;
21.2
He conceded that his calculation was based on a Google search
analysis and that he is not the
author of the SAfacts.co.za report
attached to his expert report.  According to this article J Mr
Rowthorn obtained from the
internet search, “
Rough Sugilite
Bulk Sale per KG in the Rough Category was listed for R5,000.00 on 18
Aug at 15:47 by Mario Jansen PSA in Cape Town
(ID196667070).”
[22]
When questioned by the Court on how a purchase of US $350 could
equate to a claim
of R14,400,000.00, he responded that he had heard
that the people selling the sugilite wanted to get rid of it because
they were
superstitious.
[23]
Mrs. Pamela Tudin, a clinical psychologist, was called by the
plaintiffs as an expert
witness in respect of the effect that the
arrest and detention had on Ms FA Huxham’s emotional and
psychological wellbeing.
She testified that:-
23.1
She holds an Honours Degree in Social Work and a Master’s
Degree in Clinical Psychology
and has been a psychologist for 27
years;
23.2
She assessed Ms FA Huxham on 31 July 2019 at the request of Mr JCC
Cohen to determine whether
Ms FA Huxham was clinically traumatised by
the arrest and detention.
Her
purpose was to determine whether there was a difference between Ms FA
Huxham’s psychological presentation post and prior
to the
arrest and detention and whether a direct correlation can be drawn
between the incident and her resultant psychological
state;
23.3
She observed that Ms FA Huxham came across as a homeless person,
while still being alive to the
fact that she was slovenly dressed and
not well presented and that she was dirty.  She was wearing
slippers when she came
for the assessment and she looked dishevelled.
Ms FA Huxham began speaking immediately about how she thought
that there were
people in the shops who were spying on her and trying
to find out what she was buying; and how they were going to somehow
use that
information in relation to the arrest and detention.  She
immediately launched into a paranoid disposition that made itself

evident throughout the assessment.  Ms FA Huxham struggled to
maintain any kind of contact with her.  She appeared extremely

paranoid and very fearful.  She stated that Mrs P Tudin was
somehow colluding with the police, and she kept checking to see
if
there were bugs under the desks.  She made verbal comments that
“
I do not know if you're part of this or if you are with him
or against him.  I do not really know who you are.  You
could
be one of them.
”
23.4
Her mental state had noticeably deteriorated in the four months
preceding the interview.  Ms
FA Huxham sent 38 e-mails to Mr JCC
Cohen, one about every three days that were extremely tangential,
meaning that her train of
thought was hard to follow on some of them.
In others it was clear.  Her e-mails are indicative of a
complete psychological
fragmentation that she was experiencing;
23.5
Ms FA Huxham wanted to get medication and reluctantly sought medical
intervention to assist her
in her panic and anxiety related symptoms
and, but she was too frightened to take the medication because she
thought that somehow
it could affect her, or that the police had
somehow intervened and managed to convince her doctor to give her
medication that would
affect her negatively.  Ms FA Huxham could
not get medical treatment, partly due to lack of funds and partly
because she was
too scared to take it;
23.6
She heard aeroplanes flying over her house and stated that they were
spying on her, or she could
hear voices that were telling her things
about the matter;
23.7
She impressed as intellectually limited or cognitively limited, but
she was functioning in her
everyday life and was psychologically
stable prior to the arrest and detention.  She could be
accountable and responsible
in her limited way;
23.8
She struggled in the school system and was bullied.  Mrs P Tudin
was uncertain whether she
matriculated or not;
23.9
Her father was her protective figure even before the incident;
23.10
There is no history of alcohol or drug abuse prior to the incident;
23.11
She never took any medication before she was wrongfully arrested and
only started taking some after the
unlawful arrest.  She never
took sleeping tablets in her life;
23.12
Pertaining to the arrest and detention, Ms FA Huxham informed her
that they were treated in a very aggressive
way, which included
separating her from her father and that she was continuously called
stupid.  They took her out of the
cell three times and kept
asking her for information and she would not speak.  She was
beside herself.  Her father called
through the wall and told her
not worry, saying “
it's going to be fine
.”  She
was extremely agitated that they did not allow him to take his blood
pressure medication and she thought he was
going to die.  There
were no blankets, no bedding and no toilet.  There was a hole in
the roof and cold air was blowing
on her father.  She was
convinced that her father got cancer as a result of the arrest and
she stated that she will never
forgive them for killing her father;
23.13
According to Mrs P Tudin, and as a result of the arrest and
detention:-
23.13.1
Ms FA Huxham was certainly belittled and undermined throughout the
incident, which often
leads to trauma symptomology.  In the
simplicity of her cognitive functioning, the incident must have been
very overwhelming
for her.  After the incident she could not
leave home unless it was under extreme duress;
23.13.2
She had a complete decline in her psychological state, culminating in
a paranoid disorder
over and above her post traumatic stress trauma,
the depression and social isolation;
23.13.3
She was unable to eat or sleep and felt like a prisoner in her own
home.  She was
frightened that there was some kind of bug in the
food that she would consume.  She became petrified to go to the
toilet because
she was afraid that there was some kind of mechanism
with which they could spy on her whilst using the toilet;
23.13.4
She could no longer function in society. She started to have conflict
with everyone
around her, including her brothers;
23.13.5
Her hygiene showed enormous deterioration;
23.13.6
She was quite devastated by the way in which her life had changed,
and she certainly
had an aliveness to the fact that her life was very
different.  She was not an anxious person before the arrest and
detention.
She and her father did lovely things together and
travelled all over the country, she made jewellery or gardened.  She

was happy, but she now felt like she “
couldn't breathe
”.
She often became suicidal and stated that she hates her life
like this;
23.13.7
Mrs P Tudin met with Mr Matthew Huxham who informed her that Ms FA
Huxham led a simple
and functioning life prior to the incident, but
that she became short tempered, agitated, irritable and a completely
different
person to the sister that they knew and cared about before.
She could not make friends anymore or socialise.  Previously,

she'd been quite a happy person and would love to go outdoors and
chat to strangers, but not anymore; and
23.13.8
She was initially diagnosed by Dr Chouler as suffering from an
adjustment disorder,
but he later changed his diagnosis to that of a
post-traumatic stress disorder;
23.14
According to her evaluation, Ms FA Huxham led a simple but functional
life before the arrest and detention
and she was accountable.
Subsequent to the arrest and detention, she, however, lost
touch with reality, had a psychotic break
and was in a paranoid
state.  Her life was extremely different to the life she had led
before, and she suffered a torment
over the nine years before she
died.  The overall effect of the arrest and detention severely
compromised an already cognitively
compromised person, to such an
extent that she was totally debilitated.
[24]
When cross-examined, Mrs P Tudin:-
24.1
Confirmed that the instruction from Mr JCC Cohen was to forensically
assess the severity of the
impact of the arrest and detention on Ms
FA Huxham;
24.2
Testified that she had read Mr AJ Huxham’s affidavit but was
still able to form her own
opinion about Ms FA Huxham;
24.3
Persisted that, based on her analysis and collateral input, Ms FA
Huxham did not have any psychological
illness before the arrest and
detention.  She was adamant that no evidence existed that she
was paranoid before the arrest
and detention;
24.4
Explained that having a sensitive disposition as a result of her life
experience or being intellectually
challenged is not akin to a
diagnosis of a psychological condition;
24.5
Testified that paranoid features emerge post-trauma, which is a very
typical clinical presentation
of extreme trauma.  They start to
believe that the people who hurt them can continue to hurt them,
particularly if they did
not feel safe and they have not been removed
from the environment;
24.6
Conceded that Ms FA Huxham’s limited intellectual abilities
could have caused her to experience
the arrest and detention as far
more traumatising, but she persisted that she was not paranoid or
traumatised before the arrest
and detention; and
24.7
Explained that the death of Mr AJ Huxham impacted her emotionally,
but it did not create the
post-traumatic stress syndrome or a
paranoid set of symptomology;
25.8
Stated that a birth defect that affects you cognitively would limit
your intellectual ability,
but it would not result in a mental
illness as mental illness is a psychological condition and not a
cognitive disability;
24.9
With reference to Dr L Panieri-Peter’s report, Mrs P Tudin
testified that: -
24.9.1
Dr L Panieri-Peter had concluded that Ms FA Huxham suffered from
full-blown psychosis
as a result of her experience of the trauma and
a paranoia that extended to include the members of the general
public, her neighbours,
and simple, clearly unrelated events.  She
had delusions, hallucinations and thought disorder;
24.9.2
She does not take issue with anything contained in Dr L
Panieri-Peter’s report
and confirmed that she supports Dr L
Panieri-Peter’s assessment that Ms FA Huxham is significantly
mentally ill to the extent
that she was psychotic at the time of the
assessment.
[25]
The defendant closed his case without calling any witnesses.
[26]
Rule 38(2) stipulates: -
“
The
witnesses at the trial of any action shall be orally examined, but a
court may at any time, for sufficient reason, order that
all or any
of the evidence to be adduced at any trial be given on affidavit or
that the affidavit of any witness be read at the
hearing, on such
terms and conditions as to it may seem meet: Provided that where it
appears to the court that any other party
reasonably requires the
attendance of a witness for cross-examination, and such witness can
be produced, the evidence of such witness
shall not be given on
affidavit.”
[27]
The general rule in trials is that evidence should be given
viva
voce.
This not only enables the Court to assess the witness
giving the evidence but, more importantly, it also affords the party

that has not called the witness an opportunity to cross-examine the
witness, both to test the evidence that the witness has given
and,
equally importantly, the opportunity to elicit evidence from the
witness which supports the cross-examiner's case.
[28]
In the matter of
Madibeng
Local Municipality v Public Investment Corporation Ltd
[2]
it was held that a departure from the general rule is conditional
upon whether it was appropriate and suitable in the circumstances
to
allow a deviation from the norm, which required a consideration of
the following factors: the nature of the proceedings; the
nature of
the evidence; whether the application for evidence to be adduced by
way of affidavit was by agreement; and ultimately,
whether, in all
the circumstances, it was fair to allow evidence on affidavit.
[29]
An applicant who seeks to invoke the exception must prove that
"
sufficient
reason
"
exists to do so.  While this requirement confers a broad
discretion on a court in determining whether sufficient reason

exists, a court must bear in mind the disadvantages of permitting
this to both the court and the other side, and then consider
whether
the interests of justice nonetheless requires that the evidence be
admitted on affidavit.
[3]
[30]
Section 3(1)(c) of the Law of Evidence Amendment Act, Act 45 of 1998
(“the
Act”) states that:-
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless
(a)
...
(b)
...
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given
by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of
such evidence might
entail; and
(vii)
any other factor which should in the opinion of the
court be taken
into account, is of the opinion that such evidence should be admitted
in the interests of justice."
[31]
Section
3(1)(c) of the
Act
requires
that the Court should have regard to the collective and interrelated
effect of all the considerations in paragraphs (i)
to (iv) of the
section and any other factor that should, in the opinion of the
court, be taken into account.  The section
introduces a high
degree of flexibility to the admission of hearsay evidence with the
ultimate goal of doing what the interests
of justice require.
[4]
[32]
Zeffert and Paizes,
[5]
with
regard to the evaluation of the factors set out in section 3(c) of
the Act, warn that:-
"Since
the person upon whose credibility the probative value of the evidence
depends is, in the case of hearsay evidence, not
subjected to the
curial devices designed to identify, assess and eliminate those
aspect of the evidence that render it potentially
unreliable, it is
important for a court to (a) understand what the potential dangers
are; (b) consider the extent to which those
dangers actually arise in
the case before it; and (c) identify factors that tend to reduce or
even eliminate those dangers.
Only then will a court be in a
position to determine the extent of the prejudice caused to an
adversary by the denial to that party
of the benefit.  The
dangers to which a court must be alert are (a) insincerity on the
part of the absent declarant or actor;
(b) erroneous memory (c)
defective perception; and (d) inadequate narrative capacity."
[33]
The
purpose of the Act is to allow the admission of hearsay evidence in
circumstances where justice dictates its reception.  In
Metedad
v National Employers’
General
Insurance Co Ltd  (“Metedad”)
[6]
it was stated as follows: -
"This
section invests the court with a discretion, to be judicially
exercised in the interests of justice. It seems to me that
the
purpose of the amendment was to permit hearsay evidence in certain
circumstances where the application of rigid and somewhat
archaic
principles might frustrate the interests of justice. The exclusion of
the hearsay statement of an otherwise reliable person
whose testimony
cannot be obtained might be a far greater injustice than any
uncertainty which may result from its admission.  Moreover,
the
fact that the statement is untested by cross-examination is a factor
to be taken into account in assessing its probative value.
…There
is no principle to be extracted from the Act that it is to be applied
only sparingly.  On the contrary, the
court is bound to apply it
when so required by the interests of justice."
[34]
In each case the factors set out in section 3(1)(c) of the Act are to
be considered
in relation to the facts of the case.  The weight
to be accorded to such evidence, once it is admitted in the
assessment of
the totality of the evidence adduced, is a distinct
question.
[35]
The factors set out in section 3(1)(c)(i)-(vii) should not be
considered in isolation.
One should approach the application of
section 3(1)(c) on the basis that these factors are interrelated and
that they overlap.
[7]
[36]
I turn to consider the application of section 3(1)(c) to the facts of
the present
case.
The
nature of the proceedings:-
[37]
Section 3(1)(c)(i) requires a consideration of the nature of the
proceedings and
makes it clear that it applies to both criminal and
civil proceedings.  Section 3(1)(c)(i) requires a consideration
in the
widest sense of the nature of the proceedings, for instance
whether they be civil or criminal or trial or motion proceedings.
One
may then consider the other factors in section 3(1)(c) in
relation to the nature of the proceedings.
It
is more likely that hearsay evidence will be admitted in civil
proceedings than in criminal proceedings – this is because
of
the presumption of innocence, and the courts’ intuitive
reluctance to permit the untested evidence to be used against
the
accused in a criminal case.
[8]
[38]
If the matter is a civil trial a court may consider the absence of
the testing power
of cross-examination, which will always be
attendant when hearsay evidence is admitted, but may nevertheless
admit hearsay evidence
if the party against whom it is sought to be
admitted can counter the effect of such evidence by other means.
In
Ndhlovu
and others
v S
(“Ndhlovu”)
,
[9]
the
Supreme Court of Appeal clarified that section 35(3)(i) does not
create an automatic right to cross-examine.  The Supreme
Court
of Appeal confirmed that:
“
The
Bill of Rights does not guarantee an entitlement to subject all
evidence to cross examination.  What it contains is the
right
(subject to limitation in terms of section 36) to ‘challenge
evidence’.  Where that evidence is hearsay,
the right
entails that the accused is entitled to resist its admission and to
scrutinise its probative value, including its reliability.
The
provisions enshrine these entitlements.  But where the interests
of justice, constitutionally measured, require
that hearsay evidence
be admitted, no constitutional right is infringed.  Put
differently, where the interests of justice
require that the hearsay
statement be admitted, the right to ‘challenge evidence’
does not encompass the right to cross-examine
the original
declarant.”
[39]
The defendant could have countered the tendered evidence by calling
its employees
to testify about the quality of the sugilite that was
confiscated as well as the stones that were returned.  The
nature of
the proceedings in this matter, namely a civil trial, thus
mitigates in favour of the admission of the affidavit and the video
footage.
The
nature of the evidence:-
[40]
Section 3(1)(c)(ii) requires that the nature of the evidence be
considered.
Schmidt and Rademeyer
[10]
suggest that this requirement relates mainly to the reliability of
the evidence sought to be introduced.  Reliability is perhaps

more pertinent to the enquiry in terms of section 3(1)(c)(iv), but as
stated earlier in this judgment, the various factors are

interrelated.  What is required by section 3(1)(c)(ii) is a
characterisation of the evidence sought to be introduced.
[41]
The Constitutional Court in the matter of
Kapa
v S
(“Kapa”)
[11]
explained that: -
“
[79]
In essence, the enquiry under
this rubric is, first, the extent to which the evidence can be
considered reliable; and, second, the
weighing of the probative value
of the evidence against its prejudicial effect.
[80]
There are a number of factors
relevant to the reliability question, namely:
(a)
any interest in the outcome of the proceedings
by the witness;
(b)
the degree to which it is corroborated or contradicted
by other
evidence;
(c)
the contemporaneity and spontaneity of the
hearsay statement; and
(d)
the degree of hearsay.
[81]
In
Savoi,
[12]
this Court explained that courts’ aversion to hearsay evidence
stems from its general unreliability as it is not subject
to the
reliability checks applicable to other evidence – such as
cross-examination – and as its nature makes it difficult
for a
party to effectively counter inferences drawn from it. This Court
noted, however, that notwithstanding hearsay evidence being
untested,
and despite the possibility of risks of faulty memory or erroneous
perception, insincerity or ambiguities in narration,
hearsay evidence
may prove to be reliable.”
[42]
The heirs in the plaintiffs’ deceased estates certainly
have
an interest in the matter, which may adversely affect
s
the reliability of their evidence.  Their interest must,
however, be viewed in the context of seeking justice for their loved

ones.  Mr AJ Huxham’s evidence pertaining to the quality
of the stones was corroborated in material respects by the
viva
voce
evidence of Mr JCC Cohen and Mr
JFH Huxham.  In addition, Mrs Tudin’s evidence,
corroborated Mr AJ Huxham’s evidence
contained in his affidavit
that Ms FA Huxham was severely traumatised by the unlawful arrest and
detention.  Furthermore,
no bias was attributed to Mr JFH Huxham
when he was cross-examined.
[43]
Even though the affidavit was attested to and the video footage was
taken almost
8 years after the unlawful arrest and detention had
taken place, I am persuaded that Mr AJ Huxham’s physical state
of health
justifies the degree of lateness and does not militate
against the admission thereof.
The
purpose for which the evidence is tendered: -
[44]
Section 3(1)(c)(iii) of the Act requires scrutiny of the purpose for
which the evidence
is tendered.  The plaintiffs’ purpose
is to prove the circumstances of the unlawful arrest and detention
and the effect
that it had on them; and to identify and confirm the
quality of the stones that Mr AJ Huxham purchased in Hong Kong as
compared
to the stones that were returned.  As such, it is a
central issue.  In the matters of
S
v Dyimbane
[13]
Hlongwane
and Others v Rector, St Francis College, and Others
[14]
it was suggested that
where the evidence sought to be admitted bears on the central issue
in the case, a court should be slow to
admit it.
[45]
The
Constitutional Court, however, in
Kapa
confirmed that “
It
is of no legal significance, in considering whether to admit
evidence, how important a party regards a piece of evidence for
the
bolstering of its own case.”
[15]
[46]
I align myself with the judgment in
S
v Mpofu
[16]
where the Court held as follows:-
"So
far as the purpose for which the evidence is tendered I cannot, with
respect, agree that the importance of the evidence
is an aspect
militating against its admission.  Evidence that is otherwise
relevant should not depend for its reception on
its importance in the
case.  If the evidence sought to be led carries the hallmark of
truthfulness and reliability then its
reception is doubtless
justified."
The
probative value of the evidence:-
[47]
Section 3(1)(c)(iv) requires that the probative value of the evidence
should be considered.
Evidence sought to be introduced in terms of
section 3(1)(c) may be such that its probative value, even at first
blush is minimal
and in those circumstances the enquiry will end
there.  Questions of relevance and reliability arise in the
application of
this subsection.
[17]
[48]
In
Ndhlovu
[18]
“probative value” was defined in the following terms:
“”
Probative
value” means value for purposes of proof.  This means not
only ‘what will the hearsay evidence prove
if admitted?’
but “will it do so reliably?’”
[49]
It is not required that every material aspect of the hearsay evidence
must be corroborated.
In order for the affidavit and the video
footage to be reliable or for it to have probative value in its
entirety, there
must either be corroboration of every material aspect
or corroboration of a significant number of material aspects.
[19]
[50]
Regard being had to these factors and the corroborating evidence of
Mr JHF Huxham,
Mr JCC Cohen and Mrs P Tudin, one is led to the
conclusion
that Mr AJ
Huxham’s affidavit and the video footage have both relevance
and probative value.
The
reason why the evidence is not given by Mr AJ Huxham and Ms FA
Huxham: -
[51]
Section 3(1)(c)(v) of the Act requires that a court enquire into the
reason why the
evidence is not given by the person upon whose
credibility the probative value of such evidence depends.  It is
common cause
that Mr AJ Huxham and Ms FA Huxham are both sadly
deceased.
There
is consequently no other way to place Mr AJ Huxham’s version of
the events pertaining to his arrest and detention and
the quality of
the stones he purchased before the Court, but by way of his affidavit
and the video footage.
The
prejudice to the defendant: -
[52]
Section 3(1)(c)(vi) requires a consideration of prejudice to the
party against whom
the evidence is sought to be adduced.  The
inability on the part of the defendant to test by cross-examination
the accuracy
of the statement and the video footage is obviously
prejudicial, but prejudice of that nature is implicit when hearsay
evidence
is admitted.  It is the degree of the prejudice that
must in each case be taken into account to determine whether an
injustice
will be done to the party against whom it is sought to be
adduced and that, as has been stated earlier, is a matter of fact to
be determined in the circumstances of each case.
[53]
There
can hardly be any doubt that the defendant is prejudiced by the
admission of both the affidavit and the video footage as he
is
deprived of the opportunity to cross examine the deponent.  But,
as was enunciated by the Constitutional Court in
Kapa
[20]
that the inability to
cross-examination “…
is
not the only consideration – the Court must also consider the
fact that the witness is deceased, and the overriding consideration

of the interests of justice.  Ultimately, the question is
whether there are adequate pointers of truthfulness, reliability,
and
probative value for the statement to be admitted as evidence.”
[54]
I am reassured that there are indeed adequate pointers of
truthfulness, reliability,
and probative value for the affidavit and
the video footage to be admitted as evidence.  This view is
bolstered by the fact
that the defendant elected not to call any
evidence to refute the allegations regarding either the circumstances
of the arrest
and detention or the returned sugilite.  The
absence of evidence from the defendant does not provide corroboration
of the
plaintiffs’ case nor does it attract an adverse
inference for the defendant’s case, but it does leave the
plaintiffs’
case unanswered.
Any
other factors: -
[55]
Finally, in terms of section 3(1)(c)(vii) of the Act the court is
required to take
into account any other relevant factor,
which
should in the opinion of the court be taken into account, to
determine whether such evidence should be admitted in the interests

of justice.
[56]
As was stated in
Ndhlovu
[21]
:
-
“
A
just verdict, based on evidence admitted because the interests of
justice require it, cannot constitute ‘prejudice’.
. . .
Where the interests of justice require the admission of
hearsay, the resultant strengthening of the opposing case cannot

count as prejudice for statutory purposes, since in weighing the
interests of justice the court must already have concluded that
the
reliability of the evidence is such that its admission is necessary
and justified.  If these requisites are fulfilled,
the very fact
that the hearsay justifiably strengthens the proponent’s case
warrants its admission, since its omission would
run counter to the
interests of justice.”
[57]
Bearing all of these factors and the circumstances of the case in
mind, I have come
to the conclusion that it is in the interests of
justice to admit both the affidavit and the video footage into
evidence.
EVALUATION
OF THE EVIDENCE: -
[58]
It
is trite that the plaintiff bears the overall onus to prove its case,
on a balance of probabilities.
[22]
[59]
In the absence of any evidence by the defendant, this matter stands
to be adjudicated
according to the evidence presented by the
plaintiffs and their cross-examination by defence counsel.
Evaluation of the
evidence in respect of the two sugilite samples:-
[60]
Mr TL Manye submitted that Mr JFH Huxham’s evidence was
unsatisfactory and
contradictory in view of the following:-
60.1
He relied on Mr AJ Huxham’s assessment of the quality of the
sugilite and did not inspect
the stones himself;
60.2
He did not know how many kilograms of stones were returned to his
father; and
60.3
He did not look and inspect all the stones that were returned to Mr
JCC Cohen’s office
when the bags were opened.
[61]
I do not agree.  Mr JFH Huxham’s presented his version in
a forthright,
albeit emotional, manner without deviating from the
essence thereof, notwithstanding thorough cross-examination.  He
correctly
made relevant concessions with regard to the weight of the
sugilite that was returned and that he relied on his father’s
determination of the value and the clarity of the stones.
Furthermore, Mr JFH Huxham’s evidence pertaining to the
difference
between the sugilite bought by Mr AJ Huxham when compared
to the returned stones was consistent, credible and reliable
[62]
Mr JFH Huxham’s evidence on this essential aspect is also
corroborated by the
affidavit and the video footage.  Mr JCC
Cohen, making correct concessions, was also a credible witness and
confirmed Mr JFH
Huxham’s evidence in material respects.
[63]
I accordingly find that the sugilite that was returned to Mr AJ
Huxham’s attorney
is not the sugilite that Mr AJ Huxham had
purchased in Hong Kong.
Evaluation
of Mr J Rothon’s evidence: -
[64]
As I have indicated in the judgment, the difficulty confronting the
defendant is
that no evidence was tendered to challenge the evidence
of Mr J Rothon with regard to the two samples.  It was open to
the
defendant to present evidence to demonstrate why Mr Rothon’s
evidence, in his view, should not be accepted.  Neither
was any
evidence presented by the defendant as to the value of the sugilite.
[65]
An expert is there to assist the court, must be neutral and must
provide sufficient
factual basis for his/her reasoning and explain
why the reasoning is appropriate to enable the court to be able to
assess the value
of his/her opinion.
[23]
[66]
In the matter of
MEC
for Health, Western Cape v Sinethemba
Qole
,
[24]
the Supreme Court of
Appeal affirmed that a court must be satisfied that the expert’s
opinion has a logical and rational
basis, in other words, that the
expert has considered comparative factors, including the risks and
benefits and has reached a conclusion
which accords with the facts
and underlying reasoning.
Their evidence must be
weighed as a whole and it is the exclusive duty of the court to make
the final decision on the evaluation
of expert opinion.
[25]
[67]
Proper evaluation of the opinion can only be undertaken if the
process of reasoning
which leads to the conclusion, including the
premise from which the reasoning proceeds, are disclosed by the
expert.  The
Appellate Division in
Coopers
S.A. Ltd v Deutsche Schädlingsbekämping MBH
.
[26]
confirmed that: -
‘…
an
expert's opinion represents his reasoned conclusion based on certain
facts or data, which are either common cause, or established
by his
own evidence or that of some other competent witness.  Except
possibly where it is not controverted, an expert's bald
statement of
his opinion is not of any real assistance.  Proper evaluation of
the opinion can only be undertaken if the process
of reasoning which
led to the conclusion, including the premises from which the
reasoning proceeds, are disclosed by the expert.’
[68]
In
PriceWaterhouseCoopers
v National Potato Co-operative Ltd
,
[27]
the following
passage from the Canadian judgment of
Widdrington
(Estate of) c. Wightman
[28]
was cited with approval:-
“
[326]
Before any weight can be given to an expert’s opinion, the
facts upon which the opinion is based must
be found to exist.
[327]
As long as there is some admissible evidence on which the expert’s
testimony is based it cannot
be ignored; but it follows that the more
an expert relies on facts not in evidence, the weight given to his
opinion will diminish.
[328]
An opinion based on facts not in evidence has no value for the Court.
[329]
With respect to its probative value, the testimony of an expert is
considered in the same manner as
the testimony of an ordinary
witness. The Court is not bound by the expert’s opinion.”
[69]
It is a principle of the law of evidence that an expert witness may
only rely on
information in a textbook if the following requirements
stated in
Menday
v Protea Assurance Co Ltd
[29]
are met:-
“
If an expert
relies on passages in a text-book, it must be shown, firstly, that he
can, by reason of his own training, affirm (at
least in principle)
the correctness of the statements in that book; and secondly, that
the work to which he refers is reliable
in the sense that it has been
written by a person of established repute or proved experience in
that field.  In other words,
an expert with purely theoretical
knowledge cannot in my view support his opinion in a special field
(of which he has no personal
experience or knowledge) by referring to
passages in a work which has not itself been shown to be
authoritative.”
[70]
Mr Rothon’s evidence did not measure up to the required
standards.  He
has no personal experience in the valuation of
sugilite; he relied on internet searches and based his valuation on
the overseas
market without providing evidence that the valuations
were provided to him by persons of established repute or proved
knowledge
in the valuation of sugilite.  With regard to the
value of sugilite in South Africa, his evidence was that he used an
online
portal that “
seemed to be pretty reliable..
”
He also failed to affirm the correctness of the information he
relied on based on his own training. Additionally,
despite testifying
that he valued the second sample at
R2,400,000.00, he
stated that it is “
scrap really
” and could be
turned into “
very, very low quality beads..
”
Curiously, according to Mr J Rothon’s initial report,
dated 29 May 2019, he valued the price per gram of sample
1 at
R75.00, but in his addendum, dated 22 June 2023, he opined the value
of a gram to be worth R900.00.  No explanation was
requested and
none proffered in respect of this vast discrepancy.  In my view,
Mr J Rothon’s opinion is not based on
inferences drawn from
established facts.  Mr Rothon’s opinion is therefore
tenuous and his conclusions, on the probabilities,
are neither
rational nor justified.
Evaluation
of the evidence in respect of the claims for general damage: -
[71]
The claims for general damages for the late Mr AJ Huxham and the late
Ms FA Huxham
amount to R500,000.00 and R750,000.00 respectively.
Ms Mahomed submitted that a fair and reasonable assesment of
the general damages should be:-
71.1
For Mr AJ Huxham in respect of the unlawful arrest and detention an
amount of R150,000.00 and
R350,000.00 in respect of the severe
emotional and psychologica trauma he suffered; and
71.2
For Ms FA Huxham in respect of the unlawful arrest and detention an
amount of R150,000.00 and
an amount of R550,000.00 in respect of the
severe emotional and psychological trauma she suffered.
[72]
In
Rahim
and others v Minister of Home Affairs
,
[30]
Navsa ADP reiterated that: -
“
[27]
The deprivation of liberty is indeed a serious matter. In cases of
non-patrimonial loss where
damages are claimed the extent of damages
cannot be assessed with mathematical precision. In such cases the
exercise of a reasonable
discretion by the court and broad general
considerations play a decisive role in the process of quantification.
This does not,
of course, absolve a plaintiff of adducing evidence
which will enable a court to make an appropriate and fair award. In
cases involving
deprivation of liberty the amount of satisfaction is
calculated by the court ex aequo et bono. Inter alia, the
following
factors are relevant:
(i)
circumstances under which the deprivation of liberty took place;
(ii)
the conduct of the defendants; and
(iii)
the nature and duration of the deprivation.
”
[73]
I find guidance in the decision by Plasket J in the matter of
Peterson
v Minister of Safety
,
[31]
where the following principle was enunciated:-
“
The
correct approach to t
he
assessment of damages for
unlawful arrest and detention was summarised by Erasmus J in
Ntshingana v Minister of Safety and
Security
& another, as follows:
"
The
satisfaction in damages to which plaintiff is entitled falls
to be considered on
the
basis
of
the
extent and nature of
the
violation of his
personality (corpus, fama and dignitas).  As no fixed or sliding
scale exists for
the
computation
of such damages,
the
Court
is required to make an estimate ex aequo et bono.
The
authors of Visser and Potgieter's Law of Damages 2
nd
ed,
475 have extracted from our case law factors which can play a role in
the
exercise:
'
The
circumstances under which
the
deprivation of liberty took place;
the
presence or absence of improper motive or "malice"
on
the
part of
the
defendant;
the
harsh
conduct of
the
defendants;
the
duration and nature (eg
solitary confinement) of
the
deprivation of liberty;
the
status, standing, age and health of
the
plaintiff;
the
extent
of
the
publicity given to
the
deprivation of liberty;
the
presence or absence of
an apology or satisfactory explanation of
the
events by
the
defendants;
awards in previous comparable cases;
the
fact that in addition to physical freedom, other personality
interests such as honour and good name have been infringed;
the
high value of
the
right
to physical liberty;
the
effect
of inflation; and
the
fact
that
the
actio injuriarum
also has a punitive function.'
[74]
In the matter of
Minister
of Safety and Security v Seymour
,
[32]
a 63 year-old respondent was arrested and detained for five days.
The
Court considered that the plaintiff had had free access to his family
and doctor throughout his detention at the police station
and that he
had suffered no degradation beyond that inherent in being arrested
and detained.  It also considered that, after
the first 24
hours, the plaintiff had spent the remainder of his detention in a
hospital bed at a clinic and that, although the
experience had been
traumatic and distressing, it warranted no further medical attention
after his release.
The
Supreme Court of Appeal replaced the award of R500,000.00 by the High
Court with one of R90,000.00.
[75]
In the matter of
Rudolph
and others v Minister of Safety and Security and another
,
[33]
the Supreme Court of Appeal deemed it appropriate to award a
R100,000.00 as damages as a result of the humiliating conditions to

which the appellants were subjected during their incarceration of
four nights and three days.  The appellants were arrested
and
detained under extremely unhygienic conditions in the Pretoria Moot
police station.  The cell in which they were held
was not
cleaned for the duration of their detention.  The blankets they
were given were dirty and insect-ridden and their
cell was infested
with cockroaches.  The shower was broken and they were unable to
wash.  They had no access to drinking
water.  Throughout
their detention the first appellant, who suffers from diabetes, was
without his medication.  They
were not allowed to receive any
visitors, not even family members.
[76]
In the matter of
Minister
of
Safety
&
S
ecurity
v
Kruger
,
[34]
the Supreme Court of Appeal, after taking into consideration that the
respondent was severely humiliated, awarded an amount of
R50,000.00
for unlawful arrest and detention for one day.
[77]
In
Komape
and Others v Minister of Basic Education
,
(“Komape”)
[35]
the Supreme Court of
Appeal awarded R350,000.00 to each parent with regard to their claims
for nervous and emotional shock following
the death of their son who
had drowned in a pit latrine, and held that:-
“
However,
for many years now, such a claim has been recognised in the country
where the cliamant shows that the nervous shock is
associated with a
detectable psychiatric injury.  Thus, in Bester v Commercial
Union
[36]
this court seemingly influenced to an extent by developments in
England, held a psychological or psychiatric injury to constitute
a
bodily injury for the purposes of delete reliability and that there
was no reason in our law why a claimant who suffered such
an injury
as the result of the negligent act of another should not be entitled
to receive compensation.”
[78]
In the matter of
RK
and others v Minister of Basic Education and others (Equal Education
as amicus curiae)
,
[37]
the Supreme Court of
Appeal, dealing with similar facts as it did in
Komape
,
also awarded R350,000.00 to each parent, after confirming that a
plaintiff can only claim damages for so-called nervous or emotional

shock where it is suffered as a consequence or cause of a detectable
psychiatric injury.
[79]
In view of the defendant’s failure to call any witnesses
to controvert Mr AJ Huxham’s evidence pertaining to the
conditions
and circumstances of the arrest and the detention
described in his affidavit as well as the psychological and physical
impact it
had on him, his evidence is accepted.
On
the uncontroverted evidence, Mr AJ Huxham and Ms FA Huxham were
arrested and detained for one day in a hostile and humiliating
manner
and Mr AJ Huxham was not allowed the take his medication.  I
have no doubt that
the
experience had been traumatic and distressing.
[80]
However, no evidence was presented that Mr AJ Huxham’s trauma
and emotional
shock caused a
psychological or
psychiatric injury.
[81]
I was favourably impressed by Mrs Tudin’s evidence in respect
of Ms FA Huxham,
who
presented her well-reasoned conclusion
based on facts established by her own expertise and her thorough
assessment of Ms FA Huxham.
Her evidence was consistent
throughout examination in chief and cross examination and her
findings were substantiated with
full clinical explanations.
Moreover, Mrs Tudin and Dr Panieri-Peter are in agreement that
Ms FA Huxham had limited functioning
prior to the arrest and
detention, but that the arrest and detention resulted in her complete
mental deterioration and the development
of metal illnesses, which
included psychosis to such an extent that she was completely unable
to resume living the limited functional
life she had lead prior to
her arrest.  The defendant failed to call an expert witness to
substantiate Mr Manye’s
statements to Mrs
Tudin that Ms FA Huxham’s mental condition could have been
attributed to other factors.
Ms FA Huxham’s trauma
and emotional shock clearly caused a
psychological
or psychiatric injury.
[82]
On a proper evaluation of the evidence
, and
taking into account all the factors that play a role in the
assessment of damages, as well as comparable awards made, I am
of the
view that the following globular amounts would be fair and just
compensation for the
iniuria
suffered by the plaintiffs:-
83.1
R150,000.00 for Mr AJ Huxham; and
83.2
R550,000.00 for Ms FA Huxham.
COSTS:-
[83]
Two basic principles had developed over the years with regard to
costs, namely that
(i) the award of costs, unless otherwise expressly
enacted, is in the discretion of the presiding judicial officer; and
(ii) the
successful party is generally entitled to his or her costs.
[84]
As a general rule, separate and distinct issues carry their own
costs.  This
is, however, not a hard and fast rule.
[38]
If there are issues which can be separated and a litigant fails
on some of the issues, the court may refuse to give the litigant
his
or her costs on those issues, especially if the evidence on those
issues can be separated.
[39]
A successful plaintiff is entitled to his or her costs unless
the defendant has been entirely successful on a distinct issue
wholly
unconnected with the issue upon which the plaintiff has succeeded.
Where the issues are distinct and not interwoven
or closely
connected a court may separate awards of costs on such issues or
apportion the costs.
[40]
Depending on the circumstances, where a litigant has small or
only partial success, the plaintiff will not necessarily be
deprived
of his costs if the claim is for damages.
[41]
[85]
The defendant was successful in his defence in respect of Mr AJ
Huxham’s claim
of R14,400,000.00 for the seized sugilite.  Ms
FA Huxham was substantially successful in her claim for general
damages whereas
Mr AJ Huxham had small and partial success.
[86]
Although the plaintiffs’ respective claims for general damages
are distinct
from Mr AJ Huxham’s claim for R14,400,000.00, it
is impractical in the circumstances to award distinct cost orders in
respect
of the three claims as it would occasion the taxing master
great difficulty in disentangling the costs of the various issues.
In
my estimation, 80% of the trial was spent on the
determination of the sugilite claim and 20% on the claims for general
damages.
I have come to the conclusion that it would be just
and equitable to allocate the costs on this basis.
ORDER:
In
the result the following order is made:-
1.
The first plaintiff’s claim in
respect of the sugilite is dismissed;
2.
The defendant is liable to pay R150,000.00
in respect of Mr AJ Huxham’s claim for general damages;
3.
The defendant is liable to pay R550,000.00
in respect of Ms FA Huxham’s claim for general damages;
4.
The plaintiff is liable to pay 80% of the
defendant’s taxed costs; and
5.
The defendant is liable to pay 20% of the
plaintiff’s taxed costs, including the reasonable qualifying
fees of the expert,
Mrs P Tudin - clinical psychologist.
STANTON,
A
JUDGE
On
behalf of the plaintiffs
:
Adv. S Mahomed
(on instruction of
Jonathan Cohen & Associates)
(Elliot Maris Attorneys)
On
behalf of the defendant
:
Adv. TL Manye
(o.i.o. Office of the
State Attorney)
[1]
Record
24 July 2023 at page 17-19.
[2]
[2018] JOL 40396
(SCA) at paragraph [26].
[3]
Bafokeng Land Buyers Association and Others v Royal Bafokeng Nation
[2018] 3 All SA 92
(NWM) at paragraph [63].
[4]
Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of
Safety and Security
[2012] 2 All SA 56
(SCA) para 31.
[5]
The
South African Law of Evidence, Second Edition, page 401.
[6]
1992
(1) SA 494
(W) at page 498I.
[7]
Hewan
v Kourie NO and Another 1993(3) SA 233 (T) at 239 B – C.
[8]
Metedad supra
1992 (1) SA 494
(W) at page 499.
[9]
[2002] 3 All SA 760
(SCA) at paragraph [24].
[10]
Bewysreg,
at page 477-478.
[11]
2023 (1) SACR 583 (CC).
[12]
Savoi v National Director of Public Prosecutions
2014
(5) BCLR 606
(CC)
at paragraph 49.
[13]
1990
(2) SACR 502
(SE).
[14]
1989
(3) SA 318 (D).
[15]
Kapa
supra at paragraph [39].
[16]
1993
(2) SACR 109
(N)
at
116 i:
[17]
S
v Ramavhale at
1996 (1) SACR 639
(A) at page 649 e – 650 a.
[18]
Ndhlovu
supra
at paragraph [45].
[19]
Kapa
supra at paragraph [86].
[20]
Kapa
supra at paragraphs [101] – [103].
[21]
Ndhlovu supra at paragraph [50].
[22]
Govan
v
Skidmore
[1952] 1 All SA 54
(N) page 57.
[23]
PriceWaterhouseCoopers v National Potato Co-operative Ltd and
another
[2015] JOL 32954
(SCA) at paragraph [97].
[24]
[2018] ZASCA 132
at paragraph 38.
[25]
Life Healthcare Group (Pty) Ltd v Dr Abdool Samad Suliman
[2018]
ZASCA 118
paragraph
15.
Michael & Another v Linksfield Park Clinic (Pty) Ltd
2001 (3) SA
1188
(SCA) at paragraph
36.
to 37; Charles Oppelt v Head: Health, Department of Health,
Provincial Administration:
Western
Cape
[2015] ZACC 33
at paragraph 36.
[26]
1976 (3) (A.D.) at 371 F – G.
[27]
[2015] JOL 32954
(SCA) at paragraph [99].
[28]
2011 QCCS 1788.
[29]
1976 (1) SA 565
(E) at 569 G-H. See Frantzen v Road Accident Fund
[2022] JOL 54566
(SCA) at paragraph [37].
[30]
[2015] 3 All SA 425
(SCA) at paragraph [28].
[31]
[2009] JOL 24495
(ECG) at paragraph [15]. Also
see
Minister of Police of Safety and Security
v
Seymour
2006 (6) SA 320
(SCA)
325 paragraph 17 and Rudolph and others v Minister of Safety and
Security and others
[2009]
3 All SA 323
(SCA).
[32]
[2007] 1 All SA 558
(SCA); 2006 (6) SA 320 (SCA).
[33]
[2009] 3 All SA 323
(SCA), 2009 (5) SA 94 (SCA).
[34]
[2011] JOL 27025 (SCA).
[35]
[2019]
ZASCA 192
at paragraph
[25]
[36]
1973
(1) SA 769 (A).
[37]
[2020] 1 All SA 651
(SCA) at paragraphs [24] to [32].
[38]
Estate Wege v Strauss
1932 AD 76
at 86.
[39]
Port
Elizabeth Municipality v SA Breweries
1925 EDL 99
; Penny v Walker
1936 AD 241
260; May v Union Government
1954 1 All SA 76
(N) at
page 87;  Kunze v Steytler 1932 EDL 4
[40]
Golding v Torch Printing & Publishing Co (Pty) Ltd
1949 4 All SA
234
(C) at page 263.
[41]
Kennedy
v Dalasile
1919 EDL 17.