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2024
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[2024] ZAFSHC 358
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Motaung v Minister of Police (1838/2020) [2024] ZAFSHC 358 (5 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case no: 1838/2020
In
the matter between
GLORIA
THOLWANA MOTAUNG
PLAINTIFF
And
THE
MINISTER OF POLICE
DEFENDANT
Neutral
citation:
Gloria Tholwana Motaung v
The Minister of Police
Coram: NEMAVHIDI, AJ
Heard: 16 OCTOBER 2024
Delivered:
07 November 2024
Summary:
A delictual claim arising out of the wrongful and
negligent shooting by the members of the South African Police
Services. Damages
and future loss of income determined by the Court.
ORDER
1.
Defendant shall pay the plaintiff the
following amounts:
1.1
General damages: R 250 000.00
1.2
Future medical and hospital expenses: R 91 800.00
1.3
Assistive devices and Equipment: R9 565.80
1.4
Loss of income: R150 000.00
Total:
R501 365.80
2.
Defendant shall pay costs on scale A of
Rule 67A.
JUDGMENT
Nemavhidi AJ
[1]
In this matter, the plaintiff launched a
delictual claim against the defendant arising out of the wrongful and
negligent shooting
of the plaintiff by the members of the South
African Police Services which occurred on the 26
th
of March 2019 at Schonkenville, Parys in the Free State Province.
[2]
The issue of liability was settled between
the parties on the 23
rd
of March 2023. The defendant is 100% liable for proven damages
suffered by the Plaintiff.
[3]
The plastic surgeons confirm that the
plaintiff has two scars on the back of her left leg and right leg
near the knee. The scars
are hypothropic and hypopigmented and could
be improved surgically on two occasions for maximum benefit.
[4]
The total cost of the envisioned operations
amounts to R52 000.00. A future amount for future medical and
hospitalization amounts
to R104 000.00 less 10% contingency (R10
200.00), leaving an amount of R91 800.00. The plaintiff will in
future need assistive
devices which will cost R9 565.00.
[5]
The actuarial calculation of loss of
earnings was calculated to an amount of R301 665.00 after a 5%
contingency. However, the Defendant
argues for a 2.5% contingency
differential as opposed to 5% contingency differential. This leads to
an estimated loss of R150 828.12.
[6]
The plaintiff submitted that the amount of
general damages would amount to a total of R450 000.00 while the
defendant argues
that there is no functional impairment on the
plaintiff, and that there is no basis why the Plaintiff should be
given any amount
of money for pain and suffering, loss of amenities
of life, shock, disability and disfigurement.
DAMAGES
[7]
The object of the allotment of damages is to place the plaintiff in
the same position
(or close thereto as possible) as she would have
been, but for the shooting
[1]
and
the award of damages falls squarely within the court’s
discretion.
[2]
The
court hears the relevant evidence and considers the object and
effectiveness of the compensation, the principles and fairness
and
conservatism as well as any previous awards as set out in the
precedents.
LOSS OF EARNINGS
[8]
Future loss of earnings is the difference between what the plaintiff
could potentially
have earned before the damage causing event and
what she will earn now that the damage causing event has taken place.
Past loss
of earnings, on the other hand, represents the income the
plaintiff lost from date of the shooting to date of judgment. The
difference
between the two represents the plaintiff’s actual
loss of income.
[9]
The court is assisted by the actuarial calculations to determine the
monetary value
to be awarded in respect of the loss of earnings or
earning capacity as the whole exercise of determining same is in
essence speculative
in nature and devoid of any certainty.
Contingencies are applied by the court to align the actuarial
calculation with the
circumstances of the case and life as it happens
in general.
[10]
It was held in Southern Insurance Association Ltd v Bailey NO:
‘
Where
the method of actuarial compensation 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 differently put the ‘vicissitudes
of
life’. These include such matters as the possibility, that the
Plaintiff may in the result have less than a normal expectation
of
life, and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or to labour unrest
or general
economic condition. The amount of any discount may vary, depending
upon the circumstances of the case.’
[3]
[13]
Having regard to all the submissions and having considered
contingencies and precedence, the
following order is made:
1.
Defendant shall pay the plaintiff the
following amounts:
1.1
General damages: R 250 000.00
1.2
Future medical and hospital expenses: R 91 800.00
1.3
Assistive devices and Equipment: R9 565.80
1.4
Loss of income: R150 000.00
Total:
R501 365.80
2.
Defendant shall pay costs on scale A of
rule 67A.
Nemavhidi
AJ
Appearances
For
the Plaintiff:
Adv
JMV Malema
Instructed
by:
MM
Hattingh Inc
For
the Defendant:
Adv
K Shole
Instructed
by:
State
Attorney
[1]
Dippenaar
v Shield Insurance Co Ltd
1979 (2) SA 904
at 917.
[2]
De
Jongh v Du Pisani
2005 (5) SA 457
SCA.
[3]
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98A
at 116a to 117A.