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2024
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[2024] ZAFSHC 392
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Gunter v Minister of Police (4222/2021) [2024] ZAFSHC 392; [2025] 1 All SA 352 (FB) (29 November 2024)
FLYNOTES:
PERSONAL INJURY – Police
stun grenade –
Hearing
loss –
Permanent
damage – Stun grenade thrown and detonated in close
proximity – Use of force by police during crowd
control –
No disruptive behaviour, nor any indication of havoc or chaos
visible on video footage – Conduct cannot
be described as
necessary to disperse dangerous crowd – No legal interest of
defendant endangered – Acted unreasonable
– Wrongful
conduct – Harm was foreseeable – Total award of
R757,561.
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case
no: 4222/2021
In the matter between:
JAN HENDRIK GUNTER
Plaintiff
And
THE MINISTER OF
POLICE
Defendant
Coram:
Van Rhyn J
Heard:
1 and 2 August 2023, 12 March 2024
6 and 7 August 2024,
16 September 2024
Delivered:
29 November 2024
ORDER
1. The
Defendant is held liable for the damages that the Plaintiff have
suffered in consequence of the incident
that occurred on 6 October
2020 when a stun grenade was detonated by the Defendant which caused
permanent damage to the plaintiff’s
hearing.
2. The
defendant shall pay an amount of R 757 561.00 in regard to the
Plaintiff’s claims for:
2.1 Past Medical
Expenses R1 460.00
2.2 Future Medical
expenses R356 101.00
2.3 General
Damages
R400 000.00
3.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs to date of this order
which shall include the
Plaintiff’s counsel fees on scale B as provided for in Rule 67A
read with Rule 69 and the reasonable
qualifying fees and expenses
(where applicable) of the following experts:
3.1 Me Ancois Botha;
3.2 Mr Deon Ceronio;
3.3 Mr Ian Walsh
JUDGMENT
[1]
The plaintiff, Jan Hendrik Gunter, a farmer from
the district
of Senekal, Free State Province, instituted action against the
defendant, the Minister of Police, for damages arising
from an
assault perpetrated against him by a member of the South African
Police Service (‘SAPS’) when a stun grenade
was thrown
and detonated in close proximity of him, as a result of which he
suffered permanent damage in the form of loss of hearing
in both his
ears.
[2]
The action, which is defended by the defendant, initially
proceeded
on merits only. The issue of quantum was separated from the merits in
terms of rule 33(4) of the Uniform Rules of Court.
During the trial
in respect of the merits the parties, however, agreed to present
evidence regarding the quantum of the plaintiff’s
claim with
the result that both the merits and the quantum stand to be
adjudicated.
[3]
In the particulars of claim the plaintiff alleged
that on 6 October 2020 at Landdros Street, Senekal, a member of SAPS,
whose identity
is unknown to the plaintiff (the ‘member’),
acting within the course and scope of his employment with the
defendant,
threw a stun grenade at the plaintiff. The plaintiff avers
that the defendant is responsible for the conduct of members and/or
officials and/or employees, acting within the course and scope or
their employment and whose object were to prevent, combat and
investigate crime, maintain public order, protect and secure the
inhabitants of the Republic of South Africa and to uphold and
enforce
the law.
[4]
The plaintiff alleged that the member threw the stun grenade
at the
plaintiff and other members of the public, without any reason and/or
justification and/or in a reckless, negligent and in
an unlawful
manner, while he ought to have foreseen that if he acted in such a
manner, such conduct might result in members of
the public suffering
injuries and that they may consequently suffer damages. The member,
illegally and unreasonably, impaired the
plaintiff’s
constitutional rights by assaulting and/or injuring him whereas the
member owed the plaintiff a duty of care,
alternatively had a duty
not to injure the plaintiff unreasonably, illegally and/or
negligently in the execution of his duties
as an employee of the
defendant. As a result of the explosion of the stun grenade, the
plaintiff suffered permanent damage as set
out above
,
which he seeks to recover in the action.
[5]
The plaintiff claims damages in the amount of R2 601 460
made up as follows:
(a)
General damages in respect of suffering and/or
discomfort, loss of amenities
of life and disability in the amount of
R600 000;
(b)
Past medical expenses in the amount of R1 460;
and
(c)
Future medical expenses in the amount of
R2 000 000.
Total
R2 601 460.
[6]
To appreciate the evidence adduced by the defendant,
it is apposite
to have regard to the pleadings and specifically paragraph 7 of the
defendant's plea. The defendant denies that
it breached his duty of
care and/or acted negligently or recklessly or without reason or
justification. The defendant, in particular,
denies that the
plaintiff sustained the injury in question as a consequence of any
conduct by members of the SAPS. The defendant
admitted that stun
grenades were used by members of the SAPS at the time of the
incident. The defendant further pleads that members
of the SAPS used
the stun grenades to disperse the crowd that forced its way into the
Magistrates’ court premises without
permission. It is
specifically denied that the members threw a stun grenade towards the
plaintiff. The defendant pleads that the
stun grenade was thrown
towards the crowd. In addition, the defendant pleaded the
following as grounds of justification:
(a)
There were reasonable grounds by members of the defendant in
thinking
that, because of the crowd’s behaviour (of which the plaintiff
was part or alternatively in the vicinity of), there
was such a
danger (commenced or imminent) of injury to persons or damage to/or
destruction of property as to require their action
complained of; and
(b)
The means used in such endeavour to restore law and order and
avert
such danger, and resulting in damage to state property and/or one or
more members of the crowd being injured, was not excessive
having
regard to all the circumstances, such as the nature and the extent of
the danger, the likelihood of serious injury to persons,
the value of
the property threatened and life at risk.
(c)
In the further alternative, the plaintiff voluntarily
assumed the
risk in that the plaintiff had knowledge of the risk of injury in
participating in the violent crowd or entering and
passing through
the violent crowd and therefore consented to possible injury.
[7]
The plaintiff testified during the trial and presented
the evidence
of four witnesses. Plaintiff is a farmer and BKB stock agent.
He was born on 21 February 1982. On the
day in question the
plaintiff attended a gathering by members of the community and more
specifically, members of the farming community,
held at an open space
between the Senekal Magistrates’ court and the taxi rank.
The gathering against farm murders
coincided with the bail
application of the accused arrested in connection with the murder of
a young farm manager and farmer, Brendin
Horner. The plaintiff parked
his motor vehicle at point F, an area indicated and marked on the
plaintiff’s evidence bundle,
Exhibit A. Exhibit A4 is a map
(downloaded from Google Maps) of the specific area in Senekal where
the Magistrates’ court
is located. Point F on exhibit A4
is situated to the southern end of Landdros Street. The
gathering took place at point
D, which is located to the north of
point F also in Landdros Street. He arrived at the gathering at
approximately 10:00. Several
leaders in the farming community
addressed the members of the community who attended the gathering.
The members of the community
who attended the gathering were referred
to as the ‘farmers’ or the ‘crowd’ during the
trial. The gathering
lasted for approximately 45 minutes to one hour.
[8]
When the gathering adjourned, the crowd moved in a
northern direction from point D towards the side entrance of the
Magistrates’
court, marked point C on Exhibit A4. The plaintiff
had arranged telephonically with his cousin, Mr Louis Slabbert (‘Mr
Slabbert’)
from Frankfort, to meet him subsequent to attending
the gathering. The plaintiff walked along Landdros Street in a
northern direction,
he passed the side entrance of the Magistrates’
court, turned to the right at the corner and passed the main entrance
of
the Magistrates’ court, (point B on Exhibit A4). He
thereafter turned left and proceeded to Afgri Retail (‘Afgri’)
located in Zuider Street. When he passed the main entrance of
the Magistrates’ court, he noticed a large group of the
farmers
entering the premises and gathering at the entrance to the court
building. He did not notice any violent behaviour. The
plaintiff
indicated the area where he met Mr Slabbert at Afgri and marked same
as point E on Exhibit A4. According to the plaintiff
it took him
approximately 10 minutes to walk from point D to Afgri. He and Mr
Slabbert talked while standing on the pavement at
Afgri.
[9]
Approximately 10 minutes after meeting up with Mr Slabbert
he heard
loud noises emanating from the direction of the Magistrates’
court. It sounded similar to two gun shots. According
to the
plaintiff he spent approximately an hour with Mr Slabbert at Afgri
before retracing his steps back to the Magistrates’
court in
order to return to his vehicle at point F. When the plaintiff reached
the area next to the Magistrates court in the vicinity
of the side
entrance, he noticed a friend, Mr Atkinson who was sitting in his
motor vehicle across the street from where he was
walking. The
plaintiff then crossed Landdros Street, from east to west, to meet
with Mr Atkinson. While he was standing next
to the parked Land
Rover of Mr Atkinson, he noticed a Nyala police vehicle (the ‘Nyala’)
reversing in a northern direction
in Landdros Street. He then
heard two loud explosions. It felt as if someone was forcefully
striking him with bare hands
on his back. For a couple of seconds, it
was quiet and thereafter a ringing sound in his ears started and his
hearing has been
affected negatively. The ringing sound has not
ceased since then. He subsequently learned that a stun grenade was
thrown from the
Nyala, which caused two loud explosions. The
plaintiff testified that the stun grenade was thrown at approximately
12:30. After
the explosion, the Nyala sped away in a southern
direction in Landdros Street
[10]
The plaintiff estimated that approximately 15 people were still
present in
Landdros Street at the time when he met with Mr Atkinson.
There were no violent behaviour or actions, nor any uproar or clashes
between the SAPS and the farmers who attended the meeting. Many
of the farmers and members of the public had already left
the area.
Those who were still in the area, interacted peacefully. Motor
vehicles were moving up and down in Landdros Street
whereas the
street was closed off for traffic by SAPS during the gathering and
the events that unfolded at the Magistrates’
court earlier that
morning.
[11]
During the trial the court had the opportunity to
view video footage of the scene at the time when the stun grenade was
thrown from
the Nyala.
The following is
a summary of the footage: The videographer stood to the north of the
side entrance to the Magistrates’ court
(point C) in Landdros
Street while recording the footage. The image depicted is a section
of the pavement of Landdros Street (eastern
side), to the left of the
videographer, the tarred road surface and a few vehicles parked next
to the pavement on both the west
side and eastern side of Landdros
Street. The videographer is facing to the south, being the direction
in which the plaintiff walked
on his way to his vehicle parked at
point F. While referring to the video footage, the plaintiff
indicated that he was walking
on the left side of Landdros Street,
wearing a jean and black cap. He ran across the street to the right
to meet with Mr Atkinson
and can be seen standing next to, what can
be described as the driver’s window of a white Land Rover,
which is facing in
the direction of the videographer.
[12]
A Nyala then passes the videographer on his
right-hand side and stops. The Nyala can be seen reversing in
Landdros Street from south
to north.
A
white sedan vehicle passes the videographer, driving in a southern
direction, a motor horn is heard and then the sedan vehicle
passes
the Nyala.
A person is standing with the
top part of his body protruding from the Nyala. The person then
throws an object, which is confirmed
to be a stun grenade, and white
smoke appears to the left of the screen. The Nyala then speeds off in
a southern direction in Landdros
Street. Approximately four to six
people, mostly men, can be seen walking from the left and the right
and looking in the direction
of the departing Nyala. It is common
cause that the person who threw the stun grenade while standing in
the Nyala is Sergeant Sithole,
a member of the SAPS.
[13]
According to the plaintiff he always hears a
ringing sound which is extremely disturbing when he is in the
presence of other people
and more so at night when everything is
silent. When he attends auctions, which is part of his job
description, he encounters difficulty
in hearing the auctioneer. His
interaction with his children and other people has been adversely
affected due to his loss of hearing
and the constant ringing sound in
his ears.
[14]
During cross-examination it was put to the
plaintiff that, at the time the stun grenades were thrown by the
members of the SAPS,
the crowd was out of control and the court
building and windows were already damaged. A police-vehicle was
burning. The stun grenades
were thrown by the SAPS to disperse the
crowd. The plaintiff denied the version put to him and responded that
the video footage
clearly shows that at the time when the stun
grenade was thrown towards him, that was not the situation.
[15]
During re-examination Mr Groenewald, counsel on
behalf of the plaintiff, placed on record that the defendant’s
version pertaining
to the grounds for justification was not put to
the plaintiff. The plaintiff denied that a stun grenade was used due
to the crowd’s
behavior, of which it is alleged he was a part
of, nor that there were reasonable grounds for the defendant in
thinking that a
danger existed or was imminent of injuries to persons
or damage or destruction of property. The plaintiff testified that no
vehicles
were burned in his presence and nobody’s life was at
risk. He did not enter the court premises on the particular day.
[16]
Mr Simon Frederick Stemmet (‘Mr Stemmet’)
testified that he attended the gathering against farm murders on 6
October
2020. He arrived at 10h30 and according to him the farmers
and members of the public who attended the gathering left at
approximately
11h00. After the gathering some of farmers went inside
the court building at the main entrance. Thereafter, approximately 5
minutes
later, two shots were fired. The farmers exited the court
building. They remained at the court and moved to the side of the
building.
He noticed a police vehicle that had been overturned. It
was set alight. A Nyala tried to reverse into the court premises at
the
side entrance but was blocked and pushed back towards the street
by the crowd. This happened at around 11h45 to 12h00.
[17]
Mr Stemmet explained that not all the farmers who
gathered in protest of farm murders moved towards the court. He
did not
notice the plaintiff entering the court building. Subsequent
to the incident where the Nyala was pushed out of the court premises
at the side entrance, the farmers calmed down and many left.
According to him, approximately 15 to 20 people remained behind and
stood in the vicinity of the side entrance. The farmers mingled and
talked to each other for approximately 20 minutes. The
Nyala
that was pushed out of the premises by the farmers had by then left
and it went in the direction of John du Plessis Street
towards the
industrial area, which is to the south of the Magistrates’
court.
[18]
Mr Stemmet testified that he was standing in
Landdros Street, just in front of the gate to the side entrance to
the Magistrates’
court, and was talking to Mr Andre Pienaar
(‘Mr Pienaar’) who also attended the gathering and
addressed the farmers
earlier that morning. He was standing
next to Mr Pienaar’s vehicle when a Nyala, approaching from
behind, came around
the corner and passed them. The Nyala stopped. It
reversed and a stun grenade was thrown from the Nyala. According to
Mr Stemmet
the people standing in Landdros Street at the time, ran
away. The stun grenade fell approximately 5 to 10 meters away from
the
plaintiff and to the right of Mr Pienaar’s vehicle in
Landdros Street. The stun grenade was thrown at approximately 12h30.
He identified himself on the video footage that was shown to him
during the proceedings and indicated that he was standing to the
left
of a Ford Ranger, next to the front passenger window. The Ford
Ranger is parked next to the pavement in Landdros Street
(on the
eastern side), facing in a southern direction. To the south, in front
of him, is the side entrance to the court. He furthermore
identified
the plaintiff who moved across the street, from behind the Ford
Ranger, to the Land Rover of Mr Atkinson. He pointed
out when the
Nyala passes the Ford Ranger and proceeds in a southern direction. He
furthermore indicated the motor vehicle of Mrs
Daleen Cronje, a
Toyota, who was passing the Ford Ranger of Mr Pienaar and driving in
a southern direction. The Nayla stopped in
Landdros Street and then
reversed whereafter the stun grenade was thrown from the top of the
Nyala. The stun grenade landed in
Landdros Street. According to
Mr Stemmet, no danger existed at that stage and everything had
already calmed down.
[19]
During cross examination Mr Stemmet conceded that
a group of farmers were involved in damaging the windows of the court
building
and causing havoc earlier that morning. According to his
observations, Mr Pienaar encouraged and incited the farmers to enter
the
court building and to remove the suspects in the Brendin Horner
case. He agreed that the farmers became violent. He explained that
after the Nyala was pushed out at the side entrance to the court
premises, the farmers calmed down and dispersed. He reiterated
that the video footage clearly shows that Landdros Street was open
for traffic and everything was peaceful when the stun grenade
was
thrown from the Nyala.
[20]
Mr Louis Abraham Francois Slabbert (‘Mr
Slabbert’) testified that he resides at Frankfort and attended
the gathering
held against farm murders on the day of the incident.
He arrived at the gathering at approximately 09h00. The speeches
started
at around 10.00 and lasted between 45 minutes to an hour.
On his way to his vehicle, that was parked at Afgri in Zuider Street,
he passed the main entrance to the court building. He noticed some of
the farmers but they were gathering in a peaceful manner.
He
corroborated the version presented by the plaintiff regarding their
interaction and the time spent together on the particular
day.
[21]
The plaintiff furthermore presented the testimony
of Mr Deon Ceronio (‘Mr Ceronio’), an audiologist,
registered with
the Health Professions Council of South Africa.
He has been practicing as such in Bloemfontein since 1997. He
completed a
tinnitus training course in 2000. He was commissioned to
compile reports subsequent to examining the plaintiff on more than
one
occasion. Mr Ceronio testified that the plaintiff suffered from
an acoustic trauma occasioned by the high noise level when he was
exposed to the detonation of a stun grenade. A sudden hearing loss
that occurs after an explosion is also associated with a ringing
sound in the ears, referred to as tinnitus, that can be of a
temporary or permanent nature, depending on the decibel levels of
the
explosion. In the plaintiff’s case there is a constant
permanent ringing in his ears. The tinnitus was measured
at 800Hz and
correlates with his exposure to excessive noise. The hearing loss
indicated on the audiogram is consistent with sudden
noise exposure,
such as an explosion
[22]
Mr Ceronio is of the opinion that the plaintiff
will most likely be in need a hearing aid within the next five to
eight years.
He will have to undergo a hearing test on an
annual basis. The defendant filed a notice in terms of Rule
39(a) and (b) of
a speech and hearing therapist, Nomsa L Masoka dated
4 March 2024 which was admitted into evidence by agreement between
the parties.
Ms Masoka opined that the plaintiff presents with
bilateral mild to moderate sensorineural hearing loss as a result of
acoustic
trauma and that the hearing loss is permanent and
irreversible.
[23]
The plaintiff presented the testimony of Me Ancois
Botha who is a specialist in clinical and forensic investigations in
the field
of trauma and abuse. After completing her Master’s
Degree in Social Work Forensic Practice at the University of the
North
West during 2019 she has been
specialising
in clinical forensic investigations and has assessed the plaintiff
regarding co
mplaints that he has been
struggling to sleep and are irritated easily since the incident on 6
October 2020. She opines that the
plaintiff may experience long-term
emotional or mental health problems as a result of being exposed to
an explosion which can be
referred to as a traumatic event. This
concluded the evidence presented in the plaintiff’s case.
[24]
Mr Abraham Paulus Kemp was the only witness to
give oral testimony on behalf of the defendant. He was a member of
the SAPS for 26
years and was a lieutenant colonel at the time of the
incident. Since November 2016 he served as commander at the Public
Order
Police Unit at Bethlehem. He had been a station commander at
several police stations prior to the incident at Senekal. At the time
of his testimony in court he had retired from service. He was
involved in securing the safety of the public and that of the
suspects, who had been arrested and scheduled to appear at their bail
hearing on the day of the incident. Captain Phetlane was
the
operational commander of the members who were deployed to manage the
situation at the Magistrates’ court and he was the
overall
commander. The members of the SAPS were advised of the scheduled
gathering by members of the farming community prior to
the day of the
incident. According to Mr Kemp, approximately 1500 farmers gathered
at the taxi rank next to the Magistrates’
court premises where
they were addressed by certain leaders in the farming community.
[25]
The gathering by the farmers lasted from 10h00 to
11h15. He was informed that the farmers were instigated by the
last speaker
to take action which entailed that they should enter the
court building, remove the suspects and to deal with them by
themselves.
Counsel on behalf of the defendant requested leave to
lead the testimony of Mr Kemp regarding certain hearsay evidence on a
provisional
basis. No objection was made to the request and the
hearsay evidence was placed on record on a provisional basis. It was
furthermore
placed on record that Warrant Officer Erasmus, who was
stationed at the Magistrates’ court that morning, made the
reports
to Mr Kemp regarding the events that took place at the
meeting and at the court building.
[26]
Subsequent to receiving a report that the farmers
had entered the court building and were causing havoc and
destruction, Mr Kemp
left the Joint Operational Centre (‘JOC’)
to attend to the situation unfolding at the Magistrates court.
According
to his estimation approximately 500 farmers had already
entered the premises at the Magistrates’ court. Some of
the
rowdy farmer’s had entered the court building and had
caused damage to the courtrooms. Mr Kemp estimated those who caused
the damage and havoc to be approximately between 30 and 50 farmers.
He received a report that the crowd tried to open the
holding
cells where the two suspects were held. The crowd of
troublemakers had already broken the windows and endeavoured
to
remove the bars to the holding cells. Mr Kemp had by then
arranged for the removal of the two suspects and was able to
convince
the crowd to refrain from causing further damage due to the fact that
the suspects had already been removed from the holding
cell.
[27]
While he was still at the holding cells, he
received a report that a police vehicle had been overturned by the
crowd and the vehicle
was set alight. He ran to the scene and tried
to convince the troublemaking farmers not to cause further damage,
but to no avail.
Mr Kemp explained that the police vehicle was
standing near to the main entrance to the court. The situation was
chaotic
and out of hand. He threw a stun grenade in an attempt to
stop further damage to the police vehicle whereafter Captain Phetlane
and his members started to push back the troublemakers through the
gate. In the meanwhile, he arranged for a Nyala (the ‘first
Nyala’) to enter the courtyard where suspects and prisoners are
on- and off-loaded. It is apposite to mention at this
stage
that confusion ensued during the testimony of Mr Kemp pertaining to
which Nyala was the first and which was the second Nyala.
In an
attempt to avoid further confusion, the first Nyala as explained
above, will throughout this judgment be referred to as the
first
Nyala with the result that the Nyala that was called as backup and
thus entered the scene at a later stage will be referred
to as the
‘second Nyala’. The security gates were closed behind the
first Nyala. The troublemakers were throwing
stones at the
members of the SAPS. According to Mr Kemp the first Nyala
arrived at court at approximately12h15.
[28]
At approximately 12h30 he called for the
second Nyala to escort the first Nyala, conveying the two suspects,
due to the fact that
the farmers were trying to overturn the first
Nyala. According to Mr Kemp he was able to identify two groups
of farmers.
One group was trying to overturn the first Nyala and the
second group was standing at the gate to the side entrance of the
Magistrates’
court. The second group of farmers closed the gate
to the court’s premises and tried to prevent the Nyalas from
exiting the
premises. Between 500 and 800 farmers were standing at
the gate. The second Nyala entered at the side entrance of the
Magistrates
court. Mr Kemp explained that no specific instruction to
throw a stun grenade was given over the radio to Sergeant Sithole. He
would have heard if such instruction was given at the relevant time.
An operation member may however decide to act in a specific
manner
with the result that Sergeant Sithole was able to make a decision to
throw the stun grenade having regard to the specific
circumstances.
[29]
During cross examination Mr Kemp testified that
the street passing the Magistrates’ court was blocked off for
traffic on the
particular day. However, early that morning
vehicles had already parked in Landdros Street prior to the members
of SAPS blocking
the road. The Nyalas were
utilised
to block off Landdros Street with the result that
they were in close proximity to the court when summoned. He arrived
at the Magistrates’
court at approximately 11h45. He called for
the first Nayla at approximately 12h05. He estimated the time of
arrival of the first
Nyala at around 12h10 to 12h15. Subsequent to
receiving the report from Warrant Officer Erasmus that a police
vehicle was set alight,
he endeavoured to extinguish the fire with
fire extinguishers obtained from within the court building. Mr Kemp
explained that the
burning vehicle was at the other side of the court
building.
[30]
Thereafter he called for the second Nyala to
arrive. The second Nyala arrived about ten minutes later, at
approximately 12h40. The
second Nyala entered the court premises at
the gate the side entrance. At approximately 12h45 the obstacles in
front of the gate
to the courtyard and holding cells, placed there by
the troublemakers, were removed and the two suspects were taken out
of the
holding cells and placed inside the first Nyala, which by then
was still parked within the courtyard. The second Nyala then reversed
out of the court premises at the side entrance, at around two to
three minutes later, being at approximately 12h48.
[31]
As the second Nyala approached the gate the
farmers blocked the Nyala and tried to overturn it by lifting it
sideways. The situation
was hectic and chaotic. Approximately 30
farmers tried to overturn the Nyala. Mr Kemp explained that the
majority of the farmers
who attended the gathering earlier that
morning acted peacefully and did not partake in any violent action.
The troublemakers attempted
to close the gate to stop the Nyalas from
exiting the court premises. The second Nayla was moving slowly to
exit the gate at point
C. It took a further approximately three
minutes. This happened at approximately 13h00. As soon as the second
Nyala reached Landdros
Street it turned to the left and waited for
the first Nyala to exit the premises at the court. The first Nyala
also turned to the
left. The second Nyala waited in close proximity
for the first Nyala to arrive and exit the gate, approximately five
meters from
the gate. At that stage the same group of farmers also
tried to overturn the first Nyala. The first Nyala kept on moving
while
the farmers tried to overturn it. Some of the troublemakers
were on the pavement in the proximity of the side entrance. Many
bystanders were standing in the street.
[32]
Mr Kemp testified that the second Nyala then
slowly moved away from the scene. He was unable to explain why the
second Nyala, called
for backup and to escort the first Nyala, would
leave the scene while the farmers were trying to overturn the first
Nyala. According
to him he assumed that the driver of the second
Nyala was under the impression that the first Nyala had already
exited the gate
and that they should leave the area as soon as
possible. He assumed that the driver of the second Nyala, Sergeant
Sithole reversed
to be in close proximity of the first Nyala in order
to protect the first Nayla. The first Nayla was able to enter
Landdros Street
at approximately 13h05. It was put to Mr Kemp that
many innocent bystanders were attending the gathering outside the
court premises
and did not partake in the chaotic and violent
activities on the day in question. Mr Kemp agreed. He explained that
the danger
situation, at that stage, existed at the gate where the
troublemakers tried to overturn the first Nyala conveying the
suspects.
According to his observation, the stun grenade was thrown
towards the gate in an attempt to disperse the troublemakers. Mr
Kemp initially testified that as soon as the stun grenade was thrown
the crowd moved away. Yet, he later added that when the stun
grenade
was thrown the troublemakers still attempted to overthrow the first
Nayla. Only after the first Nyala followed the second
Nayla
everything became peaceful.
[33]
Some of the members of the SAPS were issued with
stun grenades on the day in question. The stun grenade was thrown
just before the
first Nayla entered the street and while it was
moving slowly towards Landdros Street at a stage when it was in
between the gate
and the street, on the pavement section. After the
stun grenade was thrown, the crowd dispersed and the first Nyala was
able to
exit the gate, enter into Landdros Street and the two Nyalas
left the scene, the one following the other with a distance of
approximately
20 meters in between the two Nyalas. This occurred at
approximately 13h10. The first Nyala had to move extremely slowly
because
many people were standing in the street in the vicinity of
the side entrance to the court premises. Mr Kemp was unable to see
where
the stun grenade landed due to the fact that his view was
obstructed. According to Mr Kemp, approximately 80 to 100 people were
still standing outside the gate to the side entrance of the court.
Vehicles would not have been able to pass the area in Landdros
Street
due to the presence of the crowd and bystanders.
[34]
When the video footage was shown to Mr
Kemp during cross-examination, it became apparent that he was unsure
where the side entrance
and where the main entrance to the court,
referred to as point C and point B respectively, are situated. It
therefore remained
uncertain where exactly the incident pertaining to
the police vehicle that was set alight, actually occurred. It only
later appeared
that the police vehicle was parked inside the court
premises, but in close proximity to the side entrance and not the
main entrance.
It furthermore appeared that Mr Kemp was unsure
exactly where the side entrance to the court was situated having
regard to the
scene depicted in the video footage. He testified
that, according to his observations, the side entrance to the court
is
actually situated behind the Ford Ranger parked to the left (or
easter side) of Landdros Street. According to him the chaotic
situation
thus unfolded behind the Ford Ranger, in other words, it
was not captured by the videographer. Mr Kemp conceded that the
plaintiff
was standing away from any violent crowd. He furthermore
conceded that a peaceful situation is displayed on the video footage
and
there is no indication of any crowd present in the street passing
the Magistrates’ court on the images depicted in the video
footage. Furthermore, only one Nayla can be seen driving off in a
southern direction, away from the Magistrates’ court. It
was put to Mr Kemp that either a third stun grenade was thrown at a
stage when he did not witness the events or either he is not
telling
the truth, because his evidence is refuted by the images depicted in
the video footage. Mr Kemp denied that he is not telling
the truth
regarding the prevailing situation when the stun grenade was thrown
by Sergeant Sithole.
[35]
The defendant’s case was closed subsequent
to the testimony of Mr Kemp. The parties agreed to allow the hearsay
evidence presented
by Mr Kemp in respect of the information he
received from Warrant Officer Erasmus. The parties furthermore agreed
that, should
the plaintiff prove the need for future medical
expenses, the court should accept the amount of R356 101 as
calculated by
the defendant’s actuary and included in the
‘Expert Bundle’ during the trial.
[36]
The lawfulness of the assault (the detonation of the stun grenade),
the justification for the assault (necessity
and assumption of risk)
and damages are in dispute. The fact that a stun grenade was thrown
by Sergeant Sithole on the day of the
incident is not in dispute.
According to the defendant, two stun grenades were utilised by the
members of SAPS to disperse the
crowd that had forced its way into
the court’s premises without permission. It is
furthermore common cause that the
defendant is vicariously liable for
the actions of his members and in particular for the actions of
Sergeant Sithole, who according
to the defendant, is the member who
caused the detonation of the second stun grenade.
[37] It
is trite that, every infringement of bodily integrity is prima facie
unlawful and once the infringement
is proved, the onus rests on the
wrongdoer (the defendant) to prove a ground of justification.
[1]
The
plaintiff must allege and prove the fact of physical
interference.
[2]
The
plaintiff testified that immediately after the detonation of the stun
grenade he experienced severe hearing loss. His
hearing has been
impaired since then. Mr Ceronio as well as Ms Masoka, as per the
expert report submitted into evidence by agreement
between the
parties, opined that the plaintiff presents with bilateral mild to
moderate hearing loss as a result of acoustic trauma
caused by the
detonation of a stun grenade. Having regard to the expert evidence
submitted by the plaintiff and the defendant,
there is no reason to
reject the plaintiff’s evidence that the detonation of a stun
grenade, being a sudden high noise exposure,
by the SAPS on the day
in question caused the hearing loss and tinnitus.
[38]
The
State has a constitutional obligation to protect individuals against
criminal acts or violence of third parties. Failure to
do so may give
rise to delictual liability.
[3]
The onus to prove a justification for the assault accordingly falls
on the defendant. In
Petersen
v Minister of Safety and Security
[4]
it was held that: ‘A
state of necessity exists when the defendant is placed in such a
situation that he can only protect his
interest by violating the
interests of an innocent third party. Whether a state of necessity
existed in a particular set of circumstances
is a factual question.’
In considering the plaintiff's version of the events, the member of
the SAPS threw the stun grenade
towards the plaintiff without any
reason and/or justification in a reckless, negligent and unlawful
manner. If the version of the
plaintiff regarding the events is
accepted, the enquiry turns to the reasonableness of Sergeant
Sithole’s conduct and ultimately
if the defendant should be
held liable for such conduct.
[5]
The determination
of wrongfulness by the use of breach of a legal duty does not entail
a new test, it involves the determination
of the objective
reasonableness of the conduct of the person who acted in light of the
prejudice he caused to another person, in
casu
the plaintiff.
Consequently, the question whether a legal duty has been breached is
also determined with reference to the
boni
mores
or
general legal conviction of the community. The defendant admitted
that it had a legal duty to take reasonable steps to prevent
or limit
injury to the public who attended the gathering held on the day of
the incident.
[39]
Plaintiff was, in my view, an excellent witness. His evidence was
consistent throughout and he remained unshaken
during
cross-examination. He was not present at the Magistrates’ court
when the group of farmers entered the premises and,
what is evidently
common cause between the parties, caused havoc and destruction of the
State’s property by firing shots
within the court building,
breaking windows, setting a police vehicle alight and endangering the
safety and security of the suspects
at the court on the day of the
incident. Mr Stemmet confirmed the testimony of Mr Kemp in this
regard. The plaintiff’s testimony
that he left the gathering at
the site next to the taxi rank, walked along the side- as well as the
main entrance to the court
in Landdros Street to meet Mr Slabbert is
uncontested. Mr Slabbert corroborated the plaintiff’s version
that they met at
Afgri situated in Zuider Street, which is
approximately two or three blocks away from the Magistrates’
court as is evident
from Exhibit A4. Both the plaintiff and Mr
Slabbert heard a commotion and two gun shots being fired which,
according to their observation,
came from the direction of the court.
[40]
From the evidence presented by Mr Stemmet and Mr Kemp it is evident
that a confrontational situation existed
between the troublemakers
and the SAPS
.
The submission in argument by the defendant is
that the evidence of Mr Kemp proves that the actions by the members
of the SAPS
on the day in question were justified and satisfies the
requirements of necessity as a ground for justification. However, Mr
Kemp
testified that he was standing inside the courts’ premises
when Sergeant Sithole threw the stun grenade. His version is that
the
first Nyala was still trying to move into Landdros Street and had not
yet reached the second Nyala when the stun grenade was
thrown. The
stun grenade was thrown after the second Nayla had pulled away from
the gate to the side entrance, stopped and reversed.
Regarding
the reason why it was necessary to utilise the stun grenade at that
particular point in time, Mr Kemp testified
that “. . . I think
to prevent the people to block the Nyala to get the way open so that
the second Nyala can go through.”
He was not able to see where
the stun grenade landed, whether it was in Landdros Street or on the
pavement. According to his observations
the situation was chaotic and
the farmers caused havoc which led to the decision of Sergeant
Sithole to make use of a stun grenade.
Mr Kemp contradicted himself
when he later in cross-examination testified that the situation did
not become peaceful immediately
after the stun grenade was thrown. He
then testified that the farmers were still trying to overturn the
first Nyala subsequent
to the detonation of the stun grenade.
[41] The testimony of the
plaintiff, Mr Stemmet and Mr Slabbert is in direct contrast to the
evidence presented by the defendant
on this aspect. According to the
plaintiff, Mr Stemmet and Mr Slabbert the situation prevailing at the
Magistrates’ court,
more specifically in Landdros Street when
the stun grenade was thrown by Sergeant Sithole was calm, peaceful
and untroubled. The
version presented by the plaintiff is that the
havoc and destruction of property that was caused earlier, between
approximately
11h10 to 12h10, while the plaintiff was meeting with Mr
Slabbert at Afgri, had calmed down by the time when he returned to
the
scene on his way to his motor vehicle. Accordingly, when he stood
next to Mr Atkinson’s Land Drover at approximately 12h30,
there
was no need for the SAPS to utilise a stun grenade to disperse the
farmers or troublemakers.
[42] T
he
version
of the plaintiff and defendant are
destructive
to one another. Whether either party has discharged the onus upon it
depends in the first instance on whether or not
its version of the
events can be said to be more probable than that of the other party.
The court
i
n
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell and Cie SA and
Others
[6]
held that when a court is faced with two conflicting versions, the
court must make findings on the following: -
‘
(a)
the credibility of the various factual
witnesses;
(b)
their reliability; and
(c)
the probabilities.
As to (a), the Court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such
as: -
(i)
the witness’ candour and demeanour in the witness box,
(ii)
his bias, latent and blatant,
(iii)
internal contradictions in his evidence,
(iv)
external contradictions with what was pleaded or put on his behalf,
or with established fact
or with his own extra curial statements or
actions,
(v)
the probability or improbability of particular aspects of his
version,
(vi)
the calibre and cogency of his performance compared to that of other
witnesses testifying about
the same incident or events.
As to (b), a witness’
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i)
the opportunities he had to
experience or observe the event in question and (i) the quality,
integrity and independence of his
recall thereof.
As to
(c), this necessitates an analysis and evaluation of the probability
or improbability of each party’s version on each
of the
disputed issues. In the light of its assessment of (a), (b) and
(c), the Court will then, as a final step, determine
whether the
party burdened with the onus of proof has succeeded in discharging
it. The hard case which will doubtless be
the rare one, occurs
when the Court’s credibility findings compel it in one
direction and its evaluation of the general probabilities
in
another. The more convincing the former, the less convincing
will be the latter. But when all factors are
equipoised
,
probabilities prevail.’
[43]
As indicated above, the evidence presented by the plaintiff
pertaining to the events that unfolded on the
particular day at
Senekal cannot be criticized. The plaintiff and the witnesses called
by the plaintiff made a good impression
on me and their evidence was
clear, logical and reliable. On the other hand, Mr Kemp, who was
called to explain the actions of
the SAPS at the stage when the stun
grenade was thrown by a fellow member of the SAPS, created a poor
impression on me. He appeared
uneasy and he struggled to present a
clear account of the events that unfolded at the time when the stun
grenade was thrown by
Sergeant Sithole. Mr Kemp, understandably, was
unable to explain the rationale for the decision of his colleague,
Sergeant Sithole,
to utilise a stun grenade at the particular moment.
He made assumptions when questioned about the decision to make use of
a stun
grenade having regard to the prevailing situation and
circumstances. Therefore, the reasoning and decision taken by
Sergeant Sithole
to make use of a stun grenade remains unsure.
[44]
Confusion was created by Mr Kemp when referring to the first and the
second Nyala, only to change around
he description of the two Nyalas
during his testimony. He was unsure where the side gate and the main
gate to the court were situated.
It appeared as if he had no
knowledge about exhibit A4 before he was called to testify in court.
He was adamant regarding the time
frames regarding to the events that
unfolded during the day in question. Yet he conceded during cross
examination that he did not
have a clear recollection of the exact
time pertaining to the events and are making assumptions and
estimations pertaining to the
time these incident occurred. As Mr
Groenewald remarked while cross-examining Mr Kemp, the incidents
appeared to have occurred
in spurts of approximately two, three or
four minutes apart.
[45]
The video footage shown during the trial greatly
assisted the court to follow the evidence presented by
the plaintiff
and Mr Stemmet. Mr Stemmet testified that he was standing behind the
gate to the side entrance of the court. He identified
himself as the
person standing to the left of the Ford Ranger, being on the pavement
in front of the Magistrates court. The version
presented by Mr Kemp
is that the crowd that gathered at the gate to the side entrance is
not visible on the video footage due to
the fact that the gate is
situated to the back of the videographer. This version was
never put to any of the witnesses who
testified in the plaintiff’s
case. In any event, Mr Kemp indicated that he is unsure where the
gate to the side entrance
is located. On this basis the version of
the plaintiff that the gate to the side entrance (point C) is located
to the left as seen
on the video footage is more probable, even
though I emphasize that the gate
per se
is not visible.
[46]
No disruptive behaviour, nor any indication of havoc or chaos is
visible on the video footage. There is
no indication that a Nyala
exited the gate at the side entrance of the court, and no indication
that a Nyala followed in close
pursuit of another Nyala. Only
one Nyala passes the court premises in Landdros Street from behind Mr
Stemmet, the plaintiff
and the videographer. I agree with the
submission by Mr Groenewald that the video footage clearly and
undoubtedly refutes
the version presented by the defendant regarding
the circumstances that existed at the time when the stun grenade was
thrown by
Sergeant Sithole. In any event, if approximately 80 to 100
people were standing in the vicinity of the side entrance, surely,
they
would have been distinctly visible on the video footage.
Furthermore, the version regarding the number of people who were
standing
at the side entrance at the time was also not put to the
plaintiff of any of the plaintiff’s witnesses.
[47] It
is noteworthy that neither Captain Phetlane nor Sergeant Sithole was
called to testify during the trial.
There is of course no principle
or rule of practice that all available witnesses must always be
called. The correct course of action
depends on all the
circumstances. The failure to call a witness who is available and
able to testify to the facts on a disputed
issue merits the inference
that the party fears that the evidence will expose facts unfavourable
to that party. But this is true
only when the evidence is available
and when it would indeed elucidate the facts. The question whether an
adverse inference is
to be drawn from the failure to call a witness
is a question of fact.
[7]
The
only reasonable inference that the court can draw under the
circumstances is as enunciated in In
Elgin
Finedays Ltd v Webb
[8]
:
“… it is true that if a party fails to place the
evidence of a witness, who is available and able to elucidate the
facts, before the trial court, this failure leads naturally to the
inference that he fears such evidence will expose facts unfavourable
to him …”.
[48]
In my view the failure to call these two witnesses impacts negatively
upon the defendant’s case. Captain
Phetlane was,
according to the version presented by Mr Kemp, present at the side
gate when the farmers endeavoured to overturn
the Nyala. Therefore,
Captain Phetlane would have been able to confirm the version of the
defendant that the
utilisation
of
the stun grenade to disperse the violent crowd was indeed called for
and necessary under the prevailing circumstances. Mr Kemp
speculated
about the exact reason why Sergeant Sithole threw the stun grenade.
Ultimately, it was Sergeant Sithole who made the
decision to throw
the stun grenade and he is the person who should have testified why
he believed that he was justified in acting
as he did. No explanation
was furnished by the defendant for this failure.
[49]
Relevant in this regard is the testimony of the plaintiff, Mr Stemmet
and Mr Slabbert pertaining to the exact
time when the stun grenade
was detonated by Sergeant Sithole. The evidence presented in the
plaintiff’s case was that this
happened at approximately 12h30.
This version was not disputed whereas Mr Kemp’s version is that
the stun grenade was thrown
at approximately 13h10. Mr Kemp became
confused as to the issue whether the incident pertaining to the
detonation of the stun grenade
occurred prior to or after 13h00 and
had to be reminded regarding his previous estimations of the time on
several occasions during
his testimony.
[50]
It is apposite to quote from the
locus
classicus
on
cross-examination,
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[9]
:
‘
[61]
The institution of cross-examination not only constitutes a right; it
also imposes certain obligations. As a general rule,
it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in Browne
v
Dunn and has been adopted and consistently followed by our courts.
[62] The rule in Browne v
Dunn is not merely one of professional practice but ‘is
essential to fair play and fair dealings
with witnesses. It is still
current in England and has been adopted and followed in substantially
the same form in the commonwealth
jurisdictions.
[63] The precise nature
of the imputation should be made clear to the witness so that it can
be met and destroyed, particularly
where the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should be made clear not only
that the evidence is to be challenged
but also how it is to be challenged. This is so because the witness
must be given an opportunity
to deny the challenge, to call
corroborative evidence, to qualify the evidence given by the witness
or others and to explain contradictions
on which reliance is to be
placed.’
[51]
The plaintiff’s evidence pertaining to the time when the stun
grenade was thrown was not disputed,
nor was the defendant’s
version as to what time the incident with the stun grenade occurred
put to the plaintiff or any of
his witnesses. It is not difficult to
appreciate the tangible prejudice that the plaintiff stands to suffer
if the testimony regarding
the time of the events presented by the
defendant is accepted when the defendant’s version in this
regard was not put to
the plaintiff or his witnesses during
cross-examination. The testimony of Mr Stemmet that the
dangerous situation at the
court existed when damage to the State’s
assets was caused and the safety and security of the suspects were
endangered existed
at approximately 11h45 to 12h00 was not challenged
by the defendant.
[52]
Having regard to the credibility of the factual witnesses, their
reliability and the probabilities of the
version presented by the
parties, the version presented by the plaintiff is more probable than
that of the defendant. In
the circumstances of this case and I
am satisfied that the action of the SAPS in throwing a stun grenade
at the time when the plaintiff
stood next to the Land Drover of Mr
Atkinson, was conclusively wrongful. I am furthermore of the view
that the conduct of Sergeant
Sithole cannot be described to have been
necessary in order to disperse a dangerous crowd nor was a legal
interest of the defendant
endangered in any way. A dangerous
situation did not exist, nor was such a situation imminent at the
time when the stun grenade
was thrown. The harm that was caused to
the plaintiff was not caused in circumstances of necessity. Sergeant
Sithole acted unreasonable
under the prevailing circumstances.
[53]
In
Petersen
v Minister of Safety and Security
[10]
it was
held as follows:
‘
[11]
Can it be said that in these circumstances the police action which
caused Justin’s injuries does not attract liability
because it
was justified in circumstances of necessity? Unlike
self-defence – also referred to as private defence –
the
defence of necessity does not require that the defendant’s
action must be directed at a wrongful attacker. There
was
therefore no need for the respondent to establish that Justin was
himself part of the attacking crowd. What the respondent
had to
prove in order to establish the justification defence of necessity,
appears, for example, in broad outline, from the following
statements
in “Delict volume 8(1) Lawsa (2ed) by J R Midgley and J C van
der Walt, paragraph 87: “An act of necessity
can be described
as lawful conduct directed against an innocent person for the purpose
of protecting an interest of the actor or
a third party . . .
against a dangerous situation…. Whether a situation of
necessity existed is a factual question
which must be determined
objectively . . . a person may inflict harm in a situation of
necessity only if the danger existed, or
was imminent, and he or she
has no other reasonable means of averting the danger . . . The means
used and measures taken to avert
the danger of harm must not have
been excessive, having regard to all the circumstances of the case .
. .”’
[54]
Regarding the defence of
volenti non fit
inuiria
, the video footage clearly
supports the version presented by the plaintiff that a dangerous
situation did not exist, nor was such
situation imminent at the time
when the stun grenade was thrown by Sergeant Sithole. In this
regard I reject the contention
on behalf of the defendant that the
plaintiff had knowledge of the risk of in injury in that he heard
shots when he met with Mr.
Slabbert at Afgri and yet he returned to
the vicinity of the Magistrate’s court and therefor consented
to such a risk.
[55]
The plaintiff sustained physical injury as a consequence of the
conduct of the defendants’ employee.
This gives rise to an
inference of wrongfulness and there exists no justification or excuse
for the infliction of such injury.
What remains is the issue of
culpability. The issue is whether the common cause facts are able to
sustain an inference of negligence
on the part of the member of the
SAPS who threw the stun grenade towards or in close proximity to the
plaintiff. If the member
knew or could reasonable have foreseen the
possibility of harm to the plaintiff and a reasonable person in the
position of the
member would have foreseen the possibility of harm
being caused to such person, and would have guarded against such, it
would be
prima facie be negligent to cause the detonation of the stun
grenade.
[56]
The members of the SAPS had a legal duty to act reasonably towards
the members of the public who were standing
in the street at the side
entrance to the court building. In causing the detonation of the stun
grenade at that time, they would
have been in breach of the legal
duty to act reasonably towards the plaintiff, in particular, as well
as the other members of the
public who were still standing in
Landdros Street and on the pavement. I am not convinced that the
nature and degree of the force
utilised by the defendant under the
prevailing circumstances, was reasonable in order to achieve any
lawful purpose. I agree with
the submission on behalf of the
plaintiff that a reasonable police officer in the position of
Sergeant Sithole would not have caused
the detonation of a stun
grenade at the time when the plaintiff stood next to the vehicle of
Mr Atkinson and no dangerous situation
existed. In the circumstances,
the causing of bodily harm to the plaintiff was wrongful. The harm
was clearly foreseeable and ought
reasonably to have been avoided. In
the circumstances it was negligent to act in such a way. In absence
of a lawful excuse for
the detonation of the stun grenade, and none
has been established, the conduct of the defendant was both wrongful
and negligent.
[57] In
the result, the defendant has not discharged the
onus
of
establishing that the conduct of the police officer which caused the
plaintiff’s injury was not wrongful and was justified
by
necessity.
[58]
Regarding the quantum of the plaintiff’s
claim, regard is had to the evidence of the plaintiff and
the
contents of the expert reports submitted during the trial. The only
issue that remains for adjudication is the amounts to be
awarded
under the claims of General Damages and Past Medical Expenses. The
amount claimed for future medical expenses has been
agreed between
the parties to be R 356 101. The plaintiff relied upon the award
in
Silberbauer
v Santam Insurance Co. Ltd and Another
[11]
where
the vice-principal of a girls’ school, aged 42, had, as a
result of a collision sustained a basal fracture of the skull
with
blood and cerebro-spinal fluid leaking from her left ear, leaving her
with deafness and tinnitius in the left ear, recurrent
headaches and
vertigo in case of a sudden movement of the head. She sustained a
fracture of the clavicle and multiple abrasions
and contusions, all
of which caused her considerable pain during her ten days stay in
hospital. She sustained permanent deafness
of the left ear. An amount
of R4 800 was awarded in 1966 which currently amount to R527 000.
[12]
[59]
The plaintiff furthermore referred the court to
Singh
v African Guarantee & Indemnity Co Ltd
[13]
.
The plaintiff, a 46 year old storeman clerk had been involved
in a collision and sustained the following injuries: a deep
abrasion
on the right leg at the mid shin level, an abrasion on the left
shoulder, and a small abrasion on the occiput or back
of the head
which caused almost total deafness in both ears. He was admitted to
hospital for two days and thereafter attended hospital
as an
out-patient for some thirteen months. The court found that the
deafness was a grave infliction. In 1963 an amount of R2 200
was
made which would be equal to an amount of R263 000 in 2024.
[14]
[60]
No submissions pertaining to the quantum of damages to be awarded
were made on behalf of the defendant.
Having regard to previous
awards made for loss of hearing, the injuries and sequelae sustained
by the plaintiff as set out in the
expert reports which
ultimately leaves the plaintiff with mild to moderate high frequency
permanent hearing loss and tinnitus,
I am of the view that an amount
of R400 000 for General Damages in respect of suffering and/or
discomfort, loss of amenities
of life and disability will represent
fair and reasonable compensation. Regarding the claim for past
medical expenses incurred
by the plaintiff in the amount of R1 460,
proof of payment of the account of M Ceronio dated 23 February 2021
was appended
to the particulars of claim as annexure ‘C’.
I am therefor satisfied that his claim in this amount should
succeed.
[61] As to costs, there
is no reason why the costs should not follow the result.
ORDER
[62] In the result the
following order is made:
1. The
Defendant is held liable for the damages that the Plaintiff has
suffered in consequence of the incident
that occurred on 6 October
2020 when a stun grenade was utilised by the Defendant which caused
permanent damage to the plaintiff’s
hearing.
2. The
defendant shall pay an amount of R 757 561.00 in regard to the
Plaintiff’s claims for:
2.1 Past Medical
Expenses R1 460.00
2.2 Future Medical
expenses R356 101.00
2.3 General
Damages
R400 000.00
3.
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs to date of this order
which shall include the
Plaintiff’s counsel fees on scale B as provided for in Rule 67A
read with Rule 69 and the reasonable
qualifying fees and
expenses (where applicable) of the following experts:
3.1 Me Ancois Botha;
3.2 Mr Deon Ceronio;
3.3 Mr Ian Walsh
I VAN RHYN
JUDGE OF THE HIGH
COURT,
FREE STATE
DIVISION, BLOEMFONTEIN
On
behalf of the Plaintiff:
ADV.
W J GROENEWALD
Instructed
by:
SYMINGTON
DE KOK ATTORNEYS
BLOEMFONTEIN
On
behalf of the defendant:
ADV.
N. M PHAKAMA
Instructed by:
STATE
ATTORNEYS
BLOEMFONTEIN
[1]
Moghamat
v Centre Guards CC
[2004]
1 All SA 221
(C) at [7], citing
Mabaso
v Felix
1981
(3) SA 865
(A) at
873E
– 874E
.
[2]
Bennet
v Minister of Police
1980 (3) SA 24
(C) at 34-35.
[3]
Minister
of Safety and Security v Van Duivenboden [2002]3 All SA 741 (SCA),
2002 (6) SA 431 (SCA).
[4]
[2007]
2 All SA 177
(C) at [19].
[5]
Minister
of Safety and Security v Ntamo and Others
2003
(1) SA 547 (SCA).
[6]
(4/01)
[2002] ZASCA 98
(6 September 2002) at paragraph [5], pp 4-5.
[7]
Elgin
Fireclays Limited v Webb
1947 (4)
SA 744 (A) at 749 to 750.
[8]
1947
AD 744
at 745
[9]
2000
(1) SA 1 (CC).
[10]
[2010]
1 All SA 19 (SCA).
[11]
1966
(1I2) QOD 712 (C).
[12]
C
Potgieter,
The
Quantum of Damages in Bodily and Fatal Injury Cases Quick Guide,
Juta (14
th
ed),
p 16.
[13]
1958(1I2)
QOD 303 (O).
[14]
The
Quantum of Damages, Quick Guide, Ibid at p 16.