SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIVISION, GQEBERHA )
REPORTABLE
CASE NO: 3444 /2015
In the matter between :
N[...] W[...] First Plaintiff
C[...] M[...] A[...] Second Plaintiff
G[...] G[...] A[...] Third Plaintiff
R[...] C[...] A[...] Fourth Plaintiff
A[...] A[...] A[...] Fifth Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
________________________________________________________________ ___
NONCEMBU J
[1] This is a delictual claim in which the plaintiffs are claiming damages from the
defendant arising out of the unlawful and intentional shooting of C[...] A[...]1 (C[...] )
and the holding hostage of the second plaintiff by G[...] A[...] (G[...] ) on the night of
30 September to 1 October 2013 . G[...] was the ex -spouse of C[...] with whom she
shared a tumultuous relationship characterised by domestic violence and protection
orders. He committed suicide after shooting and kill ing C[...] with a service firearm.
This, after he had been declared unfit to possess a firearm by his employer , the
South African Police Service .
[2] The first and the second plaintiffs, now divorced, were married to each other
at the time of the incidence. It is alleged that the incidence of their divorce was
sequelae to the death of C[...] and the holding hostage of the second plaintiff at the
hands of G[...] . The third to the fifth plaintiffs are the children of the deceased
couple.2
[3] The merits of the matter were conceded on terms set out in a court order
which was taken by consent . The terms of the order are, inter alia –
‘That the defendant is directed to compensate the First to Fifth Plaintiffs such
damages arising out of the unlawful and intentional shooting of C[...] A[...] by
G[...] A[...], as well as the unlawful and intentional holding of the Second
Plaintiff hostage by G[...] A[...] on the night of the 30th September to 1 October
2013 as may be proved by the Plaintiffs, alternatively may be agreed upon
between the parties. ’
[4] Pursuant to the said order , the current proceedings are in respect of quantum
only.
[5] At the onset , it must be pointed out that whilst the claim for the plaintiffs as set
out in their amended particulars of claim , is premised on damages sustained as a
result of the death of both C[...] and G[...] , it seems that reliance on the damages
1 The second plaintiff’s dau ghter and stepdaughter of the first plaintiff .
2 And the grandchildren of the second plaintiff.
sustained as a result of the death of the latter has since been abandoned.3 This is
apparent from the above court order . Furthermore, som e of the plaintiffs’ expert
witnesses conceded as much, albeit painstakingly, when it was put to them during
cross -examination, that whatever damages were found to have been suffered must
be apportioned accordingly and limited only to those sustained as a result of the
death of C[...] . 4
[6] At the commencement of the trial proceedings counsel for the defendant
place d on record an unconditional tender of settlement by the defendant which was
on the following terms: no tender in respect of the first plaintiff; R 220 000 in respect
of the second plaintiff; R 72 000 in respect of the third plaintiff; R 52 000 in respect
of the fourth plaintiff; and R 135 000 in respect of the fifth plaintiff. The tender
included the payment of the second, third, fourth and fifth plaintiffs’ taxed party and
party costs.
The First and Second Plaintiffs’ Evidence
[7] Before getting into the evidence tendered in respect of the quantum of
damages that the plaintiffs are entitled to in the matter , I pause to mention one
aspect which came out strongly during the opening and closing arguments by
counsel for both the first and second plai ntiffs and for the defendant. This pertained
to the failure to testify by both the first and second plaintiffs in support of their claims.
[8] According to Mr Jooste , counsel for the first and second plaintiffs, given that
the merits were conceded in the matter, the absence of testimony from the two
plaintiffs has no bearing on their claims as the evidence of their experts is sufficient
in establishing the damages they suffered ; and such evidence cannot be said to
amount to hearsay as it was based on their observations in assessing the plaintiffs.
Mr Beyleveld , counsel for the defendant, argued to the contrary, submitting that in
the absence of evidence from the plaintiffs themselves, the evidence of their experts
3 See also the Joint Practice Note signed by the parties at page 41 of the Rule 37 Index.
4This is in line with the decision in Minister of Safety and Security v Hlomza [2014] ZASCA 51 (2 April
2014), where the Supreme Court of Appeal held that suicide by a police officer does not constitute an
enforceable cause of action by any of his dependents.
carries no value as it has no factual basis. Both parties referred this court to various
decided cases on the issue. I deal with this issue more fully later in the judgment.
[9] In respect of the first and second plaintiffs, the evidence of two witnesses; D J
Stigant, a clinical psychologist and Anel Booysen, an occupational therapist, was
tendered in support of their claim. The summary of their evidence follows.
[10] Stigant holds a master’s degree in clinical psychology from Rhodes
University . He has been a clinical psychologist for 37 years and practices for his own
account. He is registered with the HPC (Health Professionals Council) and has given
evidence in court many times before .
[11] He compiled the medico -legal psychological report in respect of the first and
second plaintiffs , the latter having been referred to him by attorney Gregory de Cock
Associates , after having consulted with the two for purposes of evaluation and
compiling such report.
[12] He carried out one test with the first pla intiff called the Minnesota Multiphasic
Personality Inventory (MMPI). The test entails over 500 computerized statements
which a patient completes him/herself. From his interpretation of the MMPI, it came
out that the first plaintiff was a person who tends to be stressed and sensitive to
anxiety reactions which he represses a ll the time. He described this as a condition
similar to PTSD, though not the same, but a stress condition that evolved from
PTSD . According to him this was due to the fact that the second plaintiff had, since
the incident , changed from the person he had been married to for 30 years. He found
it difficult to confidently relate to her as he did before. It was as if he could not please
her as before and that undermined his confidence as a husband in an emotionally
bonded relationship with his wife. According to Stigant the first plaintiff could not give
him another precipitating event that could have caused him to be in the m ental state
indicated by the MMPI. He opines that this is what led the first plaintiff to divorce the
second plaintiff.
[13] In respect of the second plaintiff , he also read parts of the report by Doctor
Estelle De Wit, a clinical psychologist, and ascertai ned therefrom that Dr De Wit
made a diagnosis of Post -Traumatic Stress Disorder (PTSD). Ten years had passed
since the incident when Stigant saw the plaintiffs. He told the court that if PTSD is
still present after one month, it becomes chronic, meaning that it is a permanent and
lifelong disorder. In describing the condition , he told the court that typically PTSD is
not reactive at the time of the incident but emerges at any time from a few m onths
after the event and thus develops post th e trauma.
[14] When he interviewed the second plaintiff she broke down and was very
distressed when she had to recount the event. Stigant predicts that she would break
down in the witness stand should she ha ve been called to testify. He concluded that
the second plaintiff's personality functioning has deteriorated as a result of post-
traumatic stress disorder (PTSD) .
[15] He based his conclusion on a statement made by the second plaintiff when
she said that ‘the traumatic event had dramatically changed her as a person’.
According to him, this was in line with what they see overtime when there is a severe
PTSD. During the in terview he asked questions on how the plaintiff experienced
herself on a day-to-day basis . Whether she had any nightmares, dreams, things like
that which would normally indicate the existence of PTSD. Whether she gets
depressed or anxious, or how she has b een from the time of the event until the
assessment 10 years later.
[16] The questions are aimed at establishing w hether her responses would fit in
with the criteria that make up or qualify for a diagnosis of PTSD. He referred to a
publication called DSM (V) which he defined as a psychiatric handbook published by
the Psychiatric Association in America, containing standardiz ed criteria used across
the world to determine the existence of psychiatric disorders.
[17] Stigant recommends psychotherapy sessions for both plaintiffs for the
management of their disorders going forward. This is aimed at helping them with
learning a di fferent perspective on the events that caused the mental disturbances.
He states that once things become chronic over time, especially in the case of the
first plaintiff, it is very difficult to effect meaningful changes such that therapy
becomes mainly su pportive rather than remedial. According to him supportiveness
usually alleviates to a degree the symptomatology , but it does not cure the person so
to speak.
[18] The evidence of Anel Booyse, an Occupational Therapist, was also tendered
in respect of the second plaintiff. Ms Booyse studied at the University of
Stellenbosch where she graduated in 1995. Her working experience started at a
school for disabled children where she focused, primarily on learning disabilities and
social emotional groups working with children displaying emotional distress. In 2017 ,
she started working in medico -legal and has been working as a locum at Eugene
Marais Hospital Rehabilitation Facility (Part of the Life Group) in Pretoria, which
specializes in medico -legal. They do not offer any treatment and only conduct
assessments for the courts .
[19] As an occupational therapist she evaluates the physical, cognitive and
psychological abilitie s and the impact an incident would have on plaintiffs’ activities
of daily living, their leisure abilities and their interaction with people around them in
the community. After making that assessment, she would then make
recommendations in regard to assist ed devices, assistance, adaptation and the like.
As a background to her report , she used the diagnosis contained in the reports of Dr
De Wit and Mr Stigant.
[20] Ms Booyse assessed the second plaintiff utilizing the Activity Participations
Outcomes Measure (APOM) , a model standardized by the University of Pretoria . On
her observations the second plaintiff did not make eye contact with her during the
interview. She looked defeated , anxious , and depressed. She became tearful when
asked to talk about the incident and the impact it had on her life. She found it difficult
to express herself. Ms Booy se however did not exclude the possibility of illiteracy
contributing to the second plaintiff’s difficulty in expressing herself.
[21] She told the co urt that t he second plaintiff noted that she was healthy and
happy with no psychological difficulties prior to the incident, except that she had
been diagnosed with high blood pressure when she was younger.
[22] She testified that the APOM results indicate that the second plaintiff will
require assistance in her daily living to the extent that she is on the borderline of a
patient found in a psychiatric institution in terms of her functioning level. She opines
that if the second plaintiff does not receive the care that she needs, it is like ly that
she will regress to requiring long -term institutionalised care in a psychiatric facility,
following which it would be very difficult for her to re -enter the community.
[23] Ms Booyse concludes that the PTSD has had and continues to have severe
impact on the second plaintiff’s functioning, and she is of the opinion that the second
plaintiff will require assistance to care and manage her day to day living. In regard to
the loss of amenities, Ms Booyse concluded that the second plaintiff will require
assistance in her daily living and will require a carer to assist her with daily planning
and setting up a routine that will assist her in managing her day better.
[24] She made recommendations to assist the second plaintiff with the identified
challenges which include occupational therapy sessions, quarterly occupational
therapy ( OT) home visits and an assessment by a psychiatrist for treatment of PTSD
and related symptoms. She also recommended in -patient psychiatric treatment from
which she believes the second plaintiff would benefit. Additionally, she opines that
the second plaintiff would benefit from domestic assistance once a week, gardening
assistance once bi -weekly and constant supervision and care to assist with the daily
management of her life. It is also recommended that she gets an orthopaedic
mattress and a contour memory foam pillow.
Evidence of the third to the fifth plaintiffs
[25] Six witnesses, including the three plaintiffs themselves, tendered evidence in
support of th e plaintiffs ’ claims . What follows below is a summary of their evidence.
[26] Elaine Romaren (Elaine) is currently employed as a financial manager at
Jeffreys Bay Superspar, which is part of the same group as Humansdorp Spar where
C[...] used to work prio r to her demise. Part of Elaine’s role is to conduct HR
processing each month as there is no separate HR department.
[27] In her capacity as financial manager, she compiled a document setting out the
employment details and earnings of C[...] . She testif ied that C[...] commenced her
employment as a Cashier at Humansdorp Spar on 1 April 2010. She worked 48
hours per week (ordinary working hours at the time). This information was captured
from the payroll system.
[28] Elaine told the court that prior to the incident in 2013, C[...] was paid R15.96
per hour as per the sectoral determination at the time. She worked 192 hours per
month, adding up to a total amount of R36 772 per annum. According to Elaine, had
C[...] not die d as a result of the incident in 2013, and had she continued to work for
Spar, her salary would have increased annually according to the sectoral
determination each year up to the hourly rate of R25. 70 in 2024. She would have
likely continued working until the age of 65, whi ch is the normal retirement age for
employees working at Spar.
[29] Elaine indicated that for the period of March to September 2013 C[...] ’s net
income was approximately R3000 per month. She later submitted a copy of the
sectorial determinations for the wholesale and retail departments setting out the
historical increases for, inter alia, cashiers from 2014 to 2023. (calculation pertaining
to sectoral determination increases for subsequent years as they would have applied
to C[...] ’s net income ).
[30] Dr Peter Whitehead is an Industrial Psychologist who specialises in medico -
legal work. His qualifications and expertise in the field were not disputed. He
compiled a report and gave evidence pertaining thereto in respect of the projected
career path and earnings of C[...] A[...] but for the incident.
[31] In compiling his report he had regard to various source documents as well as
undertaking interviews with collateral witnesses such as the first, second a nd fourth
plaintiffs as well as Ms Elaine Romaren.
[32] He told the court that C[...] would have continued her work as a cashier but for
the shooting and that given her work history and limited exposure to alternative jobs,
she would not likely have mad e any significant career changes.
[24] He further testified that C[...] earned the minimum wage for cashiers in the
wholesale and retail sector and her future earnings, but for the incident, would
probably have been similar, adjusted by annual increase s in accordance with the
wholesale and retail sector sectorial determination scales for a cashier. He also
testified that C[...] earned a merit bonus of between R 1 200 – R 1 500 annually and
that but for the incident, she would have continued working as a cashier until
ordinary retirement age of 65 years.
[25] When cross examined with regards to the burning down of the Humansdorp
Spar in 2018 leading to its closing down, he conceded that one could not say what
could have happened to C[...] or whethe r she would have been earning an income at
all over that period. He a greed with the proposition of a speculation that C[...] would
have received a similar position and be immediately employable thereafter given her
years of experience as a cashier.
[26] The following witness was Dr Derek van der Merwe, a medical practitioner
specialising in the field of psychiatry registered as a specialist psychiatrist in 1979.
He has bee n working in the medico -legal field for the past 21 years. H is
qualifications and expertise in the field were not gainsaid.
[27] Dr van der Merwe did assessments and compiled reports in respect of the
third plaintiff (dated 29 November 2021), the fourth p laintiff (dated 16 February 2023)
and the fifth plaintiff (dated 6 November 2021).
[28] The purpose of his assessment and report s was to reflect on the
psychological impact that the highly traumatic event (the shooting of their mother by
their father and their father committing suicide) had on the plaintiffs ’ mental stat e and
well-being. He used the format of the DSM (V) in asses sing the PSTD in respect of
the three plaintiffs.
[29] He conducted a psychiatric forensic interview, first by interviewing the second
plaintiff who was directly involved in the initial incident , to get an account of the
actual events as the children were not present at the time and only heard about it
from ot her parties. He also used collateral sources which include the psychiatric
report of Dr De Wit.
[30] In respect of the third plaintiff he made a diagnosis of partial PTSD as he did
not meet all the criteria for full PTSD (due to the absence of criteria B requirements,
eg. bad dreams, flashbacks , extreme distress, mental and physical when something
reminds you of the traumatic event). He also diagnosed him with major depression in
partial remission and complex persistent bereavement disorder.
[31] He noted that although the third plaintiff presently does not meet the criteria
for major depression , he stood a high risk of having future depressive episodes. He
alluded to the possibility that the third plaintiff might have mental disorders such as
depression and PTSD antedating the death of his parents due to the domestic
violence between his parents.
[32] With regards to the fourth plaintiff, the interview was conducted via zoom and
WhatsApp calls as the fourth plaintiff was busy with military training at the time. The
diagnosis in his regard was PTSD in remission, dissociative symptoms and adult
victim of childhood trauma. The reason why the PTSD was said to be in remission
was because all the sym ptoms which he had before were no longer present at the
time of assessment, therefore they were in the past.
[33] He did indicate though , that there w ere 50% chan ces that the PTSD could
come back. According to Mr van der Merwe, if the plaintiff relapses his treatment
costs are not going to be high, but if he has serious relapses the costs could be very
high, hence there were two possible trajectories for his future expenses.
[34] The diagnosis of adult victim childhood trauma related to the inci dence of the
death of his parents, and it was said that it could have damaging effects which can
persist into adulthood and affect the behaviour and functioning across the lifespan of
the person.
[35] The diagnosis of dissociative symptoms is based on the fact that th e fourth
plaintiff could not recall various details such as the funeral, the cause of this being
the incident and the deaths of his parents . Van der Merwe testified that medication
has little effect for dissociative symptoms an d that the fourth plaintiff is unlikely to use
therapy at this stage , although it was more probable than not that he would need and
benefit from long therapy at some stage in the future . He also found it likely that in
10-20 years severe depression w ould surface necessitating protracted
psychotherapy and protracted use of medication if depression becomes bad enough.
He did cau tion though, that serious depression is poorly treatment responsive.
[36] It was further noted that the aforementioned may be especially relevant
considering that the fourth plaintiff may be exposed to military trauma as a result of
his career choice , and it w as said to be advisable that he does not ever enter into an
active combat situation as he is unlikely to cope.
[37] At the time of diagnosis, there were no sufficient symptoms to make a
diagnosis of prolonged grief disorder.
[38] Psychiatric treatment and medication was said not to be needed for th e fourth
plaintiff at present; however, it was recommended that he undergoes psychotherapy
treatment.
[39] With regards to the report on the fifth plaintiff, van der Merwe testified as
follows:
39.1 He is the youngest of the children and was around 12 years old at the time of
the trauma inducing incident. He was still in school and visiting his aunt in
Patensie when he received the news of the tragic demise of his parents. He
closed himself in hi s room, resorting to alcohol and dagga for a week after
receiving the news , however, he stopped about a week after the funeral.
39.2 The fifth plaintiff was diagnosed with PTSD in partial remission , major and
severe depression and persistent complex berea vement disorder in partial
remission, all of which are accepted as psychiatric disorders . A GAF score (a brief
disability rating) of 60 out of 80 (80 being very healthy) , was assigned to th e
plaintiff, meaning that he is one level above the ability to work.
39.3 He is likely to have relapses of depression into old age , and the co -existance
of depression and PTSD worsen the prognosis for both. He is at high risk of
suicide .
39.4 While treatment is recommended, the outcome is not guaranteed to provide
a good result since people presenting with the co -existence of these diagnosis
implies a poor prognosis. Treatment, however, would make life tolerable .
[40] Propositions and recommendations for treatment in respect of all three
plaintiffs and the costs involved were made.
[41] Van der Merwe conceded that in acco rdance with Dr De Witt’s report, the
environment of the third to fifth plaintiffs whilst staying with the first and second
plaintiffs was at best turbulent and sounds negative and damaging to a child . It was
also conceded that there was no indication that the fourth plaintiff had struggled at all
in his tertiary studies before being accepted to the SANDF .
[42] Another material concession made was that whether positive or negative
prognosis are given, nobody is able to state that it will happen and thus, su ch
comments essentially remain assumptions, and nobody can say with certainty
whether these issues will return in any of the plaintiffs.
[43] The third plaintiff (G[...] )’s evidence can be summarised as follows: He is
currently 28 years old. He lived with his mother after his parents’ divorce. He thinks
that his father mostly provided for their necessities but couldn’t say the extent thereof
as their mother also provided for them. He had a good relationship with his mother ,
and s he helped him with his schoolwork , looked after his daily needs and helped him
with whatever problems he had. She also gave him money for luxuries when he
asked.
[44] He also had a good relationship with his father and was of the opinion that his
parents had a good relationship as they never argued in front of him. After the death
of his parents , he started using cannabis for two to three months as a coping
mechanism. He stopped using on his own without any need for treatment and never
used it again .
[45] As a result of the trauma of losing his parents he left school without
matriculating. He started working in 2015 at Waterwiel Broedery and continues to
work there to this day. He stated during cross examination, that the first plaintiff
made his life a misery and that he even went so far as putting him and his brothers
out onto the street when he was drunk.
[46] In brief, the evidence of the fourth plaintiff ( R[...] ) was the following. He is
currently 25 years old, residing at Humansdorp. He is employed at One Signal
Regiment in Pretoria as a radio technician and operator for the South African
National Defence Fo rce (SANDF) holding the rank of a Corporal. He has been in the
employ of the SANDF since January 2020.
[47] He was approximately 14 years old at the time of his mother’s death. He was
very close to his mother , spending a lot of time with her in their hom e. The
relationship between his parents was difficult and unstable , his father drank a lot. He
performed well at school and never repeated any grades.
[48] According to him his mother bought most of the groceries at their home as his
father was not there for very long. His mother paid for household expenses from her
salary as it was noticeable that after the divorce, she would become visibly worried
over buying things like electricity. R[...] could recall one incident where his mother
had to borrow money from his aunt to buy school shoes. He did not know if his father
contributed or what he contributed towards their maintenance.
[49] He lived with the first plaintiff from grade 9 to the middle of his matric year
when he left as a result of the first plaintiff’s sister who was verbally abusive towards
him.
[50] He studied a bridging course in business management at Varsity College post
– matric but he did not complete th e course as he was unable to pass accounting.
Thereafter, he studied at Boland College in Stellenbosch for three weeks when he
received a call from the SANDF to say that he had been successful in the
recruitme nt process.
[51] He was 21 years old when he joined the military and prior to this he did part
time work at Woolworths in Jeffrey's Bay and U Save in Humansdorp , doing mostly
holiday work and earning approximately R 3000 for the two holiday periods at
Woolworths . He earned approximately R 3000 per month for three months in 2019 at
U Save.
[52] According to him it was better to live with the Prin sloos (his mother’s relatives)
as opposed to the first plaintiff as it wa s a more stable environment. His parents did
not have a good relationship . He particularly recalled one night when his father
returned home very drunk and swearing that they had to flee the house. They fled to
the first plaintiff’s house, who opened the gate and told them that they could not stay
there, which led to them going to their uncle's house (Mr Prinsloo).
[53] He told the court that the first plaintiff was not very sympathetic towards him
and his brothers and that they did not have a good relationship with him. He further
stated, during cross examination , that the first plaintiff was domineering and when it
came to finances, he calculated every cent that he supposedly spent on their
maintenance, with the intention of claiming it back. According to R[...] , it became
apparent to him and his brothers that they were not welcome at the first plaintif f’s
house and that he was really using th em for financial gain .
[54] He admitted that although he had medical aid from his employment with the
SANDF , it has never occurred to him to seek medical assistance relating to his
trauma o r to obtain prescription medication . He did indicate that he would do so if a
doctor says he needs medication.
[55] The evidence of the fifth plaintiff ( A[...]) was the following. He was
approximately 12 years old when his mother died . After the divorce of his parents,
his mother made the purchases for their immediate needs from her salary , although
he had no idea how much of h er salary she wa s using because he was still young at
the time.
[56] He had a good relationship with his mother , and she always made time for
him and to assist him with whatever problems he had , and she was actively involved
in his school activities. He matriculated in 2021 . He was first employed in March
2022 at Coca -Cola merchandiser in Patensie when he was 21 years old . He still
works for Coca -Cola but is now based in Humansdorp Super Spar. His parents ’
death affe cts his work relationships with other people as well as other ongoing
problems . To date he has not received any medical treatment for his problems.
[57] After the death of his parents he was looked after by his grandmother's
brother ( Mr Prinsloo) . He does not know what his mother's salary was or that of his
father as he was young at the time .
[58] He recalls receiving treatment from psychologists in 2019 which his family
members on his father's side paid for. He was not happy while liv ing in the care of
the first and second plaintiffs . There were disagreements with these plaintiffs over
money , and he did not receive all of his money from his father’s pension . After
moving in with the Prinsloos , he had no further contact with the two. He briefly used
dagga and alcohol after his parents’ death however, at this point in his life he is
generally happy in his work and has no disciplinary record.
The Issue
[59] The only issue for determination before this court is the quantum of damages
which the defendant is liable for in respect of the plaintiffs.
[60] In respect of the first and second plaintiff s, the matter turns on whether their
failure to t estify in court and relying sol ely on the expert s’ testimony can be said to be
fatal to their claims. The contention by Mr Byleveld for the defendant in this regard is
that the evidence of the experts, in the absence of a factual basis , is he arsay, and
therefore carries no probative value .
[61] In response, Mr Jooste contended that considering the ir mental status due to
the psychological impact of the damage they suffered (as contained in the expert
reports), these plaintiffs could not be called to re -live the tr aumatic events they
underwent by testifying in court. To drive this point home, he made the example of
certain victims of crime who in certain criminal matters are exempted from testifying
in court to p revent further victimization. This, he argues, is more so given that the
merits have been conceded by the defendant in this matter.
Discussion
[62] In my view, Mr Jooste ’s argument, however, falls f oul on two levels . In the first
leg, in the example used pertaining to criminal matters , expert testimony would
ordinarily be tendered following an assess ment of the witness with regards to his or
her ability to testify in court proceedings , and only the reafter would such a witness be
exempted. (emphasis intended) For an expert to simply give an opinion that the
witness cannot testify in court because they suffered trauma without any professional
assessment having been conducted in this regard (ability to testify in court
proceedings) , goes beyond the scope and the function of an expert in court
proceedings.
[63] In the second instance, and most pertinently , the facts leading to the plaintiffs
suffering the psychological trauma which forms the basis of their claims in this matter
have indeed been conceded . The plaintiffs therefore are not required nor expected to
testify in rega rds thereto. What they are required to testify about is the extent of the
impact that the sequelae of such actions had on them , so that the court can be able
to determine and quantify the damage they suffered. In this regard they bear the
onus.
[64] Citing a s authority for his argument in this regard , Mr Byleveld referred this
court to a decision by the full court of this d ivision in MEC for Health , Eastern Cape v
MM obo ELM5 where the following was stated :
‘[12] . . . Expert evidence is by its nature an opinion premised on the drawing
of an inference from established facts. In the present context it amounts in
5 [2022] JOL 54016 (ECB) at paras 12 – 13.
essence to a statement that established medical opinion , as the expert
interprets it, dictates a particular result under an assumed set of facts.
Accordingly , by reason of its very nature , expert opinion must have a factual
basis . The facts, which are usually found in the prima ry evidence, provide the
necessary link with the opinion, which in turn cannot be reached without the
application of expertise . If the expert witness is unable to give direct evidence
with regards to the existence of a fact, the opinion is based on a fact assumed
to be true for the purpose of giving the opinion , and it must be proved at the
trial to give the opinion any probative value. ‘In the law of evidence “opinion”
means any infer ence from observed facts, and the law on the subject derives
from a general rule that witnesses must speak only to that which was directly
observed by them’ and “an expert ’s opinion represents his reasoned
conclusion based on certain facts or data, which a re either common cause , or
established by his own evidence or that of some other competent witness ”.
[13] It follows that, unless the facts on which an expert witness expresses an
opinion on are not in dispute, they are nothing more than factual assumptions
which is inadmissible hearsay unless proved by admissible evidence. Subject
to the qualification that in any given matter , all or some of the facts may be
common cause, in that its exist ence was pertinently agreed upon by the
litigants, or it was not placed in issue on the pleadings , it is the duty of the
court as the final arbiter of fact , to decide if the factual basis for an opinion
had been established. “Expert assistance does not extend to supplanting the
court as the decision -maker. The fact -finding judge cannot delegate the
decision -making role to the expert”. ’
[65] In Williams v Member of the Executive Council , Department of Health,
Eastern Cape and Another ,6 Bands AJ (as she then was) stated the following:
‘It is trite that it is the court’s task to determine issues of fact and not the task
of an expert witness, whose function cannot usurp that of the judicial officer.
The key function of an expert witness is to guide the court in its decision -
6 [2023] 1 All SA 562 (ECP) at paras 18 – 19
making process on questions, which fall within the ambit of the expert’s
specialised field of knowledge.’
[66] The Supreme Court of Appeal in HAL obo MML v MEC for Health, Free State ,
held th at where –
‘. . . the facts are central to the opinions of the experts, the court should
require that those facts be led in evidence before the experts express their
opinion.’
[67] In the matter under consideration the evidence and opinions of the experts
are based on the assumption that but for the traumatic event of the kidnapping of the
second plaintiff , and the killing of C[...] by her ex -husband , the first and second
plaintiff s were fine with no psychological issues. Of course, this factor is not common
cause between the parties, nor was it ever admitted. No evidence was tendered by
the two plaintiffs pertaining to their physical or mental well being prior to the traumatic
event.
[68] Based on the information received from the first and second plaintiffs, t he
experts formulate opinions that any psychological and other related issues that the
two plaintiffs have (even culminating in their divorce), were a direct result of the
traumatic event s. Propositions are even made by one of the e xperts with regards to
physical adjustment s and equipment needed to adjust the living conditions of the
second plaintiff , despite there being no factual evidence from the second plaintiff
herself, as to what her living conditions were prior to and since the incident (and thus
provide a link with the opinion/proposition made).
[69] The defendant was not afforded an opportunity to cross examine the plaintiffs
to test their evidence on these fact s. This is also despite the fact that one of the
expert reports formulates an opinion that the first plaintiff was or may have been a
bully and abusive towards the second plaintiff. Which opinion seems to align with the
evidence of the third to the fifth plaintiffs. Whether or not this was indeed the case,
and if so, whether it could have impacted on the first and second plaintiff’s mental
status and wellbeing post the incident could not be tested under cross examination .
[70] To further bolster the defendant’s argument on this point, is the fact that not
only was the first plaintiff not the biological father of C[...] , he was also not directly
involved when the trauma inducing inc ident took place. This factor, taken in
conjunction with the evidence of C[...] ’s children, that he was never sympathetic
towards C[...] even when she was alive (to the extent of even chasing her and her
children away when she sought refuge in his house from her abusive husband at the
time), and even more unsympathetic to C[...] ’s children after she had passed (except
for the financial gain it provided for him) . This aligns with the alleged abusive and
bully nature of the first plaintiff, which could possibly be ascribe d to the ultimate
divorce between him and the second plaintiff.
[71] In the absence of primary evidence from the two plaintiffs however, this court
is none the wiser. No facts were presented before the court to provide a lin k with the
opinions of the experts in this regard. In the final analysis, any evidence pertaining to
the cause of the divorce between the first and the second plaintiff s, is hearsay as it
pertains to expert opinions for which no factual basis was presented before court .
[72] In P v P7, where evidence under cross -examination established facts which
were totally contrary to what was disclosed to the experts, the court stated the
following;
‘. . . While her evidence in chief portrayed Mrs P as an uncaring, neglectful
and bullying mother prone to outbursts of rage and physical abuse directed
against both Dr P and her children, her evidence under cross -examination
revealed quite a different picture . Ms Zama conceded, albeit somewhat
grudgingly, th at her function in the parties’ household was that of a domestic
worker who left at half past four each afternoon, and that Mrs P was the
person who primarily cared for the children on a day -to-day basis. Ms Zama
went so far a s to concede that Mrs P, with whom she clearly had a difficult
and somewhat turbulent relationship, was in fact “ ‘n goeie ma”.’
7 (215/06) [2007] ZASCA 47; [2007] 3 All SA 9 (SCA); 2007 (5) SA 94 (SCA) (30 March 2007) at para
22.
[73] In the present matter the court was clearly deprived of the facts central to the
opinions of the experts, most pertinently in so far as the cause of the breakdown of
the marriage between the parties, and the living conditions as well as the mental
condition of the second plaintiff prior to the incident. To the exten t that the opinions
of the experts are based on su ch facts in establishing the mental and psychological
conditions and the extent of the damages suffered by the two plaintiffs , such
evidence carri es no probative value before this court as it amounts to hearsay.
[74] Earlier on in the proceedings it was stated that reliance was to be placed on
section 3 of the Law of Evidence Act in regard to the acceptance of the evidence of
the expert s in this regard , however, the requirements in terms the said provisions
were never e stablished during the court proceedings . This then leaves the only
evidence in respect of the first and second plaintiffs being the tender that was made
by the defendant at the commencement of the proceedings.
[75] I now turn to the assessment of damages in respect of the third, fourth and
fifth plaintiffs.
[76] In their amended particulars of claim, the third, fourth and fifth plaintiffs claim
damages under three heads: loss of maintenance and support, future medical
expenses and general and /or constitu tional damages.
[77] The claim for third plaintiff is the total amount of R732 180.00, broken down
as follows: R30 230.000 for loss of maintenance and support, R 301 950.00 for
future medical expenses and R 400 000.00 for general and /or constitutional
damages. In the case of the fourth plaintiff the total claim of R 1 027 596.00 is
broken down as follows: R71 510.00 for loss of maintenance and support; R 556
086.00 for future medical expenses; and R40 0 000.00 for general damages. For the
fifth plaintiff the breakdown of the total claim of R1 157 163.00 is as follows: R 134
131.00 is for loss of maintenance and support; R 624 032.00 is for future medical
expenses; and R 400 000.00 is for general and /or constitutional damages.
Loss of maintenance and support
[78] It is not in dispute that the deceased parents of the three plaintiffs ( C[...] and
G[...] A[...]), in their lifetime had a legal duty to provide maintenance and support to
their children. The t wo were divorced on 24 May 2011 , whereafter G[...] relocated to
Patensie and the plaintiffs continued to reside with C[...] in Humansdorp. It is also not
in dispute that there was a maintenance order against G[...] in favour of C[...] in the
amount of R2 0 00 per month in respect of the children, which formed part of the
divorce de cree. As to whether payment in terms of the said order was maintained at
all or regularly , is another question altogether.
[79] What is in issue in this regard is whether the first to the third plaintiffs have
established on a balance of probabilities that C[...] did in fact provide for their
maintenance and support. No issue was taken with Romarin’s testimony with
regards to C[...] ’s earnings at Humansdorp Spar where she was e mployed.
[80] As of 1 October 2013, the date on which the plaintiffs’ parents passed away,
the position of the plaintiffs was as follows:
80.1 The thirds plaintiff ( G[...] ), was 17 years old and attending grade 10 at
Humansdorp Secondary School. His evidence was that he never failed any grade
prior the incident. However, contrary to this, expert evidence revealed that he had
failed grade 1 0 before, prior to the incident. According to him, he intended to finish
matric, but due to the traumatic passing of his parents he could not cope, he lost
focus at school and failed grade 10 in 2013 and ultimately left school in 2014. In
2015 he commenced employment at Waterwiel farm where he still works to date.
80.2 The fourth plaintiff ( R[...] ) was 14 years old and passed his matric in 2016.
He never failed a grade in school and continued with full time studies after matric
until he joined the SANDF a t the age of 21 in January 2020. Post -matric his
studies were paid for by Nicolus Prinsloo (his grandmother’s brother).
80.3 The youngest of the three, A[...] (fifth plaintiff), was 12 years old at the time.
According to him he never failed a grade prior to the incident, and afterwards he
lost interest in his schooling, whi ch led to him failing grade 11. He later passed his
matric in 2021. In March 2022 he was employed by Coca Cola Merchandising
where he works as a fridge packer up to date.
[81] All thre e plaintiffs testified that prior to their employment they were not able to
support themselves and that their mother was responsible for their living expenses
and necessities. They believed that she provided for them from her salary, although
they could no t say how much she spent on them due the fact that they were still
young at the time. They did not dispute that their father also contributed to their
expenses , but they could not say what the extent of such contribution was.
[82] Mr Paterson for the plaintiffs referred this court to various cases which set out
the approach of courts when assessing claims for loss of support. Most pertinent of
these, is the case of Jonathan obo Jonathan v Road Accident Fund8 (Jonathan ,)
where it was held that the claim by a dependent for loss of support has been
regarded as the right of property. The deprivation of which by a wrongful act of a
defendant would find a claim for patrimonial damages. As patrimonial loss is a s ine
qua non for any action under the lex Aquilia , the action can only succeed when there
has been a legal guilty on the deceased to maintain the plaintiff and where he in fact
did so.9
[83] In Hersman v Shapiro and Co. 1926 TPD 36710 Stratford J at 379 said the
followi ng:
‘Monetary damages having been suffered, it is necessary for the court to
assess the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the court is little more than
estimate ; but even so, if it is certain that pec uniary damages have been
suffered, the court is bound to award damages.’
[84] This approach was confirmed by the Appellate Division (as it was then known )
in Anthony and Another v Cape Town Municipality11 where Holmes JA held:
8 (731/08) [2011] ZAECPEHC 7 (17 March 2011) (unreported).
9 At para 4.
10 Referred to in Jonathan supra.
‘. . . When it comes to scanning the uncertain future, the court is virtually
pondering the imponderable, but must do the best it can on the material
available, even if the result may not inappropriately be described as an
informed guess, for no better system ha s yet been devised for assessing
general damages for future loss.’
[85] In Jonathan (supra), after having considered various authorities, Eksteen J
stated the following:
‘[12] It is now accepted that the court is not bound by any one method of
calculatio n, (compare Southern Insurance Association v Bailey NO , supra at
114C – E) however, the general approach of our courts is usually to utilize the
annuity basis of calculation and therefore to adjust the figure obtained in
accordance with the general equitie s.
[13] What clearly emerges from the aforegoing is that this is not the kind of
case where the evidence is required to be of such a nature as to establish the
quantum of damages with mathematical precision. In the final analysis the
court will award such damages as the equity of the judge will determine
having regard to the maintenance which the deceased would have been able
to provide and which he used to provide.’
[86] At para [41] the court held:
‘In such cases the court is called upon to do the best it can with the evidence
which may often be inconclusive, provided that the plaintiff has led the best
evidence that it could reasonably be expected to lead. ’12
[87] It is an acc eptable method of calculation in maintenance matters where no
precise records are available, to attribute one part of the household expenses to
11 1967(4) SA 445 (A) at 451 B – C.
12 Footnotes omitted.
each child and two parts to each parent. This is what was also stated by Eksteen J in
Jonathan (supra) at para [ 39] where he said:
‘In the absence of meticulous records of precisely how the family expenditure
was divided our courts have accepted a convenient formalism which attributes
one part to each child and two parts to each parent.’13
[88] The method referred to above is the same method that was utilized by the
actuaries in the matter under consideration, to assess the plaintiffs’ damages in
respect of loss of support and maintenance. The actuary’s report and calculations
were not challenged , and no opposing evidence was tendered by the defendant in
this regard.
[89] Whilst I accept that the plaintiffs’ father may have contributed to their
maintenance needs, I have no reason not to accept that their mother, C[...] , primarily
supported them from her salary. They were all staying with her prior to the incident
and all have testified that she was responsible for their maintenance needs . Clearly,
given their ages at the time they cannot be expected to have the details of what was
contributed by each parent. The evidence tendered in this regard therefore is the
best eviden ce that could reasonably have been expected to establish th e plaintiffs’
damage s under this head.
[90] I am therefore satisfied that they have proved their claims on a balance of
probabilities in this regard, and therefore grant judgment in their favour in the
amounts set out in the actuarial calculation which takes into account a 5% past
contingency deduction, contained in scenario 2 of Annexure A, as follows:
90.1 In respect of the third plaintiff, an amount of R 9 805.00;
90.2 In respect of the fourth plaintiff, an amount of R57 567.00; and
90.3 In respect of the fifth plaintiff, an amount of R95 289.00.
General Damages
13 Compare for example Groenewald v Snyders 1966 (3) SA 237 (A) at 247 F -H.
[91] Arriving at an appropriate award for general damages is never an easy task.
The broadest general consideration and the f igure arrived at must necessarily be
uncertain, depending upon the court’s view of what is fair in all circumstances of the
case. Whilst one can accept that there is a readily perceptible tendency towards
increased awards in respect of general damages in r ecent times, one must not lose
sight of the fact that conservatism is one of the multiple factors to be taken into
account in awarding such damages. The principle remains that the award should be
fair to both sides – it must give compensation to the plaint iff, but ‘ not pour out
largesse from the horn of plenty at the defendant’s expense’ . (as pointed out in Pitt v
Economic Insurance Company Limited 1975 (3) SA 284 (D) at 287 E – F).14
[92] It is trite that general damages lie within the discretion of the court.15 The
following remarks by the Supreme Court of Appeal16 remain apposite in determin ing
an appropriate award for damages:
‘It has been said before that while “money can never be more than a crude
solatium for the deprivation of [liberty] . . . and there is no empirical measure
for the loss” nonetheless “our courts are not extravagant in compensating the
loss”.’
[93] The expert evidence pertaining to the psych ological injuries suffered by the
third to the fifth plaintiffs due to the death of their parents, and the sequelae thereof,
was not controverted by the defended. Dr van der Merwe suggested that an
apportionment of 20% be applied in respect of the emotiona l and psychological
sequelae to the third and fourth plaintiffs (5% towards the abusive relationship with
the first and second respondents and 15% towards the events preceding the incident
(the environment within which the plaintiffs grew up); and 80 % in respect of the
incident itself ).
14 Flanagan v Minster of Safety and Security (497/2017) [2018] ZASCA 96 (1 June 2018) at para 33.
15 See Minister of Home Affairs v Rahim and Others 2016 (3) SA 218 (CC).
16 Minister of Safety and Securiy v Seymour 2006 (6) SA 320 (SCA).
[94] It is unclear to me why the fifth plaintiff is differentiated in the above regard
simply because he was younger than his brothers at the time. Furthermore, whilst I
have no reason not to accept the doctor’s opinion that the mind ca nnot apportion
injury with regards to whether it is due to the death of the mother or the father, I have
to take into account, as one of the considerations , that the plaintiffs lost not only their
mother, but also their father whom they were close with in one swoop fell under
tragic circumstances.
[95] It follows therefore that the cause of their psychiatric lesion was not only the
passing of their mother but also tragically losing their father at the same time. Given
the fact that no claim lies with regard s to the passing of their father, in my view that
calls for an apportionment of the damage s they suffered.
[96] Both counsel referred me to previous comparable awards with regards to an
appropriate award on the circumstances of this matter. As has been said on
numerous occasions before, evidence of previous comparable awards is often
fraught with difficulties as no two cases have identical facts or circumstances .
Comparable awards merely serve as a guide , with no more value than that.
Furthermore, attempting to determine an adequate solatium is a daunting task as no
monetary compensation can ever make up for the loss suffered.
[97] In taking into account the previous awards I have been referred to in the
present matter, the factors stated above, I am of the view that an award of R16 5 000
in respect of each of the plaintiffs is an appropriate award in respect of the emotional
and psychological injuries suffered as a result of the death of their mother.
Future Medical Expenses
[98] Aligning himself with the recommendations of Dr De Wit, Dr van der Merwe
recommended treatment in respect of the third plaintiff which includes psychiatric
consultations, grief therapy sessions and medication to the total tune of R 262
775.00 with a proposition of a 20% contingency deduction to be applied .
[99] In respect of the fourth plaintiff, he opined that although he may not require
medical treatment presently, there is an 80% chance of any of his disorders
relapsing . It was his further opinion that in approximately 10 – 20 years the fourth
plaintiff would require some form of treatment for severe depression. He
recommended that the fourth plaintiff receive psychotherapy and psychiatric
sessions over a period of time , as well as medical treatment given the 80% risk of a
relapse. The total cost of the recommended treatment in this regard is said to
amount to R 505 973.00, whereupon a 40% contingency deduction should be
applied (given that he will only require treatment in the event of a relapse).
[100] In the case of the fifth plaintiff, Dr van der Merwe ’s opinion is that he will
require treatment in order to make life more tolerable and to improve his quality of
life, given the likelihood that his symptoms will endure . He recommended that the
fifth plaintiff receives psychiatric consultations, bereavement psychotherapy and
psychotherapy sessions and a list of medications , all of which make a total amount
of R 529 932.00. He proposed that a n ordinary 20% contingency ded uction be
applied in respect of the total cost .
[101] It is trite that contingencies are a matter for the discretion of the court.17 In the
present matter, it is my view that on the totality of the evidence presented, all three
plaintiffs are gainfully employed and are thriving well at work with no i ncidences
presently . I further take into account that they have not needed any signific ant
treatment since the incident in 2013, and this notwithstanding that there were other
traumatic situations they were exposed to prior and after the incident.18
[102] In my view an appropriate contingency deduction in respect of the third and
fifth plai ntiffs would be 40% and in respect of the fourth plaintiff , given the likelihood
that a relapse may or may not occur, a 60% contingency deduction would be
appropriate.
17 Cannon v Road Accident Fund [2023] EC case no 2473/2021 (Unreported judgment).
18 The domestic abuse between their parents ; the evidence that the third plaintiff failed grade 10 prior
to the incident and was at some stage previously institutionalized for drug use ; the abusive living
conditions with their grandparents over their father’s pension monies and the tragic passing of their
father.
[103] Therefore, applying the above contingencies to the amounts determined in Dr
van Der Merwe’s evidence, I am of the view that the following awards in respect of
future medical expenses are appropriate:
103.1 In respect of the third plaintiff , an amount of R 157 665. 00 is awarded;
103.2 In respect of the fourth plaintiff an amount of R 202 389.00 is awarded;
and
103.3 In respect of the fifth p laintiff an amount of R 317 959.00 is awarded.
Costs
[104] What now remains for determination is the issue of costs. It is without a doubt
that the plaintiffs have been substantially successful in their claims in that the
amounts of damages awarded are way more than what was tendered by the
defendant at the commen cement of the trial. There is in my view no reason why
costs should not follow the result. I am, however, not persuaded that a punitive cost
order, as sought by the plaintiffs, is warranted on the circumstances of the matter ,
although I am satisfied that g iven the issues that arose in the matter, the sheer
volume of the evidence and the expert testimony that was tendered, the employment
of two counsel was justified.
Order
In conclusion, the following order is made:
1. The claim for the first plaintiff is dismissed with no order as to costs.
2. The defendant is directed to pay the second plaintiff an amount of R 220 000 as
tendered, as compensation for all damages suffered as a result of the incident of 30
September to 1 October 2013.
3. The defendant shall pay compensation to :
3.1 the third plaintiff in the total amount of R 332 470.00, such amount
calculated as follows :
3.1 1 R 9 805.00 for loss of maintenance and support;
3.1.2 R 165 000.00 for general damages;
3.1.3 R 157 665.00 for future hospital, medical and related expenses.
3.2 the fourth plaintiff in the total amount of R 424 956.00, such amount
calculated as follows:
3.2.1 R 57 567 .00 for loss of maintenance and support ;
3.2.2 R 165 000.00 for general damages;
3.3.3 R 202 389.00 for future hospital, medical and related expenses.
3.3 the fifth plaintiff in the total amount of R 578 248.00, such amount
calculated as follows:
3.3.1 R 95 289.00 for loss of maintenance and s upport;
3.3.2 R195 000.00 for general damages;
3.3.3 R 317 959.00 for future hospital, medical and related expenses.
4. The defendant shall be liable for interest on the above amounts, calculated at the
prevailing legal rate of interest per annum, from th e date of judgment to the date of
final payment.
5. The defendant shall pay the second plaintiff’s taxed, alternatively agreed costs of
this action up to and including the first day of trial, as contemplated under scale B,
together with interest thereon calculated at the prescribed legal rate per annum,
payable as from 14 days after the date of taxation or agreement until date of final
payment.
6. The defendant shall pay the third to the fifth plaintiffs t axed , alternatively agreed
costs of this action, as contemplated under scale B , together with interest thereon
calculated at the prescribed legal rate of interest per annum, payable as from 14
days after date of taxation or agreement until date of final payment, such costs to
include:
6.1 Th e reasonable costs of consultations between the plaintiffs ’ coun sel,
plaintiffs ’ attorney , plaintiffs and plaintiffs witnesses, the preparation for trial;
6.2 The costs of the reports and supplementary reports, as well as the
qualifying fees and expenses a nd the reservation and testifying fees and
expenses , if any, of the paintiffs’ expert witnesses, including:
6.2.1 Clinical psychologist, Dr Estelle de Wit;
6.2.2 Industrial psychologist, Dr Peter Whitehead;
6.2.3 Psychiatrist, Dr Derrick van der Merwe; and
6.2.4 Actuary, Arch Actuarial Consulting.
6.3 The reasonable travelling and accommodation fees and expenses of the
plaintiffs in attending to consultations, as well as on attending on trial herein;
6.4 The costs of the employment of two Counsel; and
6.5 The reasonable costs of employing a correspondent attorney.
_____________________
V P NONCEMBU
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the first and second Plaintiff s : P Jooste
Instructed by : Gregory Clark & Associates
Gqeberha
Counsel for the third to the fifth plaintiffs : N Paterson with N Karsan
Instructed by : Karsans Inc
C/O Goldberg & De Villiers Inc
Gqeberha
Counsel for the defendant : A Beyleveld SC
Instructed by : Office of the State Attorney
Gqeberha
Date s of hearing :14 – 16, 19 – 20 February 2024
& 1 April 2025
Date judgment delivered : 19 June 20 25