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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
In the matter between:
KEYAOLEBOGA CHRISTOPHER
NTHEBOLANG
and
MINISTER OF POLICE
CASE NO: 2200/2018
PLAINTIFF
DEFENDANT
This judgment was handed down electronically by circulation to the
parties' representatives via email and released to SAFLI I. The date and
time for hand-down is deemed to be 15h00 on 10 January 2025.
ORDER
(i) The defendant is to pay the plaintiff an amount of R100.000.00.
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(ii) Interest on the aforesaid sum at the legally permissible rate
from date of issue of summons to date of final paym ent.
(iii) The defendant is ordered to pay the costs of suit on a party -
and - party basis on the High Court Scale "B", to be taxed.
JUDGMENT
REDDY J
Introduction
[1] This judgment is dispositive of the quantum portion of the trial. Mr
Keyaoleboga Christopher Nthebolang ("the plaintiff') issued
summons against the defendant, claiming delictual damages for
bodily injuries he sustained after being shot with rubber bullets by a
member/s of the South African Police Services ("SAPS"), who at that
time was acting within the scope and ambit of their official duties as
such. The action was defended.
[2] On 11 August 2022 Mahlangu AJ delivered judgment on the merits
of the plaintiff's action. Mahlangu AJ found that the defendant is
liable to compensate the plaintiff for 100% of his proven or agreed
damages arising from his unlawful assault. Furthermore, the
defendant pays costs of this action on a party and party scale. On
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18 October 2023, the parties settled the future medical expenses.
What falls to be decided is the plaintiff's claim for general damages .
[3] For the purpose of the determination of quantum for general
damages the parties agreed that reports compiled by experts
appointed by the plaintiff, being Dr Hoffman a Plastic,
Reconstructive and Cosmetic Surgeon, Ms Moyra Tsambos a
Clinical Psychologist and Dr Kgabo a Psychiatrist be admitted as
evidence without the need to lead any further evidence thereon.
Background facts
[4] The plaintiff was the only witness who testified on quantum. On the
morning of 4 September 2018, the plaintiff travelled by motor vehicle
from his place of abode on route to Vryburg. In his company was his
uncle's son. At Vryburg, the plaintiff intended to purchase
medication for his sheep.
[5] On arrival at Vryburg, he parked next to a bottle store as he wanted
to greet a friend. Resultantly, he alighted from his motor vehicle.
Furthermore, his intended road of travel was barricaded by
members of the South African Police Service, ("the SAPS "), as there
was active community protest. It was noticeable that as part of the
occurring protest, members of the community were burning tyres.
The SAPS maintained a presence whilst this protest was taking
place.
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[6] The members SAPS commenced with the discharging of firearms.
This caused people to flee in the direction of the village, away from
the plaintiff. Members of the SAPS pursued the fleeing people whilst
simultaneously continuing with the discharging of firearms.
Immediately on hearing the discharge of the firearms, the plaintiff
ran in the direction of his motor vehicle. As he was about to enter
his motor vehicle, experienced excruciating pain on his left flank and
behind his right knee. This caused him to fall to the ground.
However, he dragged himself into his motor vehicle and drove to the
Joe Morolong Hospital.
[7] On arrival at the Joe Morolong Hospital, he was conscious. The
plaintiff was assessed and stabilised. On examination he presented
with rubber bullet wounds to the left flank and knee. This was
cleaned and dressed in the emergency room. The plaintiff was
discharged on the same day with medication to take home and a
follow up appointment scheduled.
[8] In respect of the expert reports, the following succinct findings can be
extrapolated from the joint minutes:
(i) The incident has contributed to making him and emotional and
defenceless person.
(ii) The plaintiff portrays residual cognitive deficits, intense anger,
hopelessness, sadness, debilitating fears of the unknown and
severe anxiety as recorded in our respective assessments.
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(iii) The plaintiff's experience of self-loathing, anguish, bitterness,
emotional pain and distress, also contributes to fluctuations in
his day to day cognitive functioning.
(iv) The plaintiff's quality of life has been severely compromised and
he has suffered a significant forfeiture of amenities of life, social
failures and a diminished sense of self-worth.
[9] In terms of the joint minutes by psychiatrist, the plaintiff "has post -
traumatic stress disorder".
Submissions by plaintiff
[10) Adv Maree contends that because of the assault by members of
the SAPS the plaintiff experienced excruciating physical pain and
emotional trauma. The emotional injuries have a direct and
negative impact on the plaintiff's quality of life.
[11] To bolster his submissions on an appropriate amount for
compensation for general damages Adv Maree referred to Bape/a
and Another v Minister of Police (10196/12) [2013] ZAGPJHC 256
(16 October 2013). Adv Maree underscored that in Bape/a the
plaintiff was assaulted by being shot with a rubber bullet on his left
hand. The injury resulted in significant reduced functioning of his
left hand. Moreover, the plaintiff suffered from emotional trauma
and was diagnosed with major depressive and post-traumatic
stress disorder. In 2013, the plaintiff was awarded R150 000.00 for
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general damages . The current value calculated by using Kock CPI
values as of 2022 wou ld be an award of R229 910.96.
[12] Adv Maree placed much reliance on Louw v Minister of Police
(317/2019) ZANWHC 233 (12 October 2023), where the plaintiff
was shot three (3) times with rubber bullets on her lower legs
resulting in the plaintiff being hospitalised for five (5) days.
Furthermore, the plaintiff was diagnosed with post-traumatic stress
disorder. In 2023, the plaintiff was awarded R300 000.00 for
general damages.
[13] Adv Maree submitted that considering the seriousness of the
plaintiff's physical and emotional injuries an amount of
R250 000.00 will be fair and reasonable. In so far as interest is
concerned, the contention ran that interest be granted from the
date of demand or the date of summons . To reinforce this
contention reference was made to section 2A(2)(a) of the
Prescribed Rate of Interest Act 55 of 1975. Motladi/e v Minister of
Police (414/ 2022) [2023] ZASCA 94, 2023 (2) SACR 274 (SCA)
(12 June 2023), Mmadu v Minister of Police (3058/2019) [2024].
With respect of costs, the submission was that the defendant pays
the plaintiff's taxed or agreed costs including the costs of counsel
on scale B of the Rules.
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Submissions by defendant
[14] Adv Nyoka asserted that the plaintiff, a singular witness was an
unimpressive witness. Simply put, the contradictions,
inconsistencies and improbabilities diminished the weight of the
plaintiff's evidence and ultimately should have an impact on the
award for general damages . To this end, the diminished credibility
of the plaintiff is illustrated by the following contentions:
"3. 3 The Plaintiff during evidence stated that he "does not know how he was
shot as the police officers and community members did not come to the
direction of where he was standing.
3.4. He also stated that he drove himself to the police station and hospital.
Thereafter he still went to his lawyer. He was not admitted in hospital but
was just treated and released to go home .
3. 5. The plaintiff confirmed that when he suffered injuries he was
unemployed but a year later he was able to secure employment in 2019
and he is to date still employed in the same company. He is even a
supervisor at work.
3. 6. I submit that his evidence as witness should be weighed against factors
which militate against his credibility. "
[15] Against the backdrop of the plaintiff's impugned credibility Adv Njoka
accentuated that the plaintiff was employed since 2019 and was
even holding a supervisory position. To this end, the plaintiff has not
suffered loss of competitiveness and is and will be able to compete
at work despite his injuries.
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[16] Adv Nyoka emphasised an award that be made in favour of the
plaintiff should be fair and reasonable to all parties taking due
cognizance of public policy. Notwithstanding, striving to attain what
is required in terms of the legal epithet of fair and reasonable, a
court's discretion should be influenced by sympathy for the plaintiff
notwithstanding the distressing facts of the case. In the final
analysis the primary purpose is not to enrich the aggrieved party but
to offer him or her some much needed solatium for his or her injured
feelings. It is therefore vital that serious attempts be made to ensure
that damages that are awarded are commensurate with the injury
inflicted. Minister of Safety and Security v Tyulu, Pitt v Economic
Insurance Co Ltd 1957 (3) SA 284 (D) at 287, Oosthuizen and
Another v Minister of Police (408/18[2023] ZANWHC 56(16 May
2023) and Hu/fey v Cox 1923 AD 234 at 246.
[17] Founded on these contentions Adv Nyoka concluded that this
Court should award an amount not exceeding R30 000 in respect
of general damages , with each party to pay its own costs.
The law
[ 18] In Mashigo v Road Accident Fund (2120/2014) [2018]
ZAGGPPHC 539) the court summarised the approach to be
adopted by a trial court when assessing general or non-patrimonial
damages as follows:
"[1 OJ A claim for general or non-patrimonial damages requires an assessment
of the plaintiff's pain and suffering, disfigurement, permanent disability, and
loss of amenities of life and attaching a monetary value thereto. The exercise
is, by its very nature; both difficult and discretionary with wide-ranging
9
permutations. As will be illustrated herein later, it is very difficult if not
impossible to find a case on all four with the one to be decided. The oft-quoted
same of Southern Insurance Association v Bailey NO 1984 (1) SA 98 AD
confirmed that even the Supreme Court of Appeal had difficulty in laying down
rules as to how the problem of an award for general damages should be
approached. The accepted approach is the 'flexible one' described in Sandler
v Wholesale Coal Supp lier Ltd 1941 AD 1941 at 199, namely; the submissions
were 'The amount to be awarded as compensation can only be determined by
broadest general considerations and the figure arrived at must necessarily be
uncertain, depending on the Judge's view of what is fair in all the
circumstances of the case."
[19] In Road Accident Fund v Marunga 2003(5) SA 164 (SCA) the court
held:
"This court has repeatedly stated that in cases which the question of general
damages comprising pain and suffering, disfigurement, permanent disability
and loss of amenities of life arises, a trial court in considering all the facts
and circumstances of the case, the court has a wide discretion to award what
it considers to be fair and adequate compensation to the injured party"
[20] The assessment of the quantum of general damages is a
comparative exercise of prior cases on bodily injuries. Relating this
process, Potgieter JA in Protea Assurance Co. Ltd 1971 (1) SA
530 (A) at 530-536 said:
" ... It should be emphasised, however, that this process of comparison does
not take the form of a meticulous examination of awards made in other cases
in order to fix the amount of compensation; nor should the process be allowed
so to dominate the enquiry to become a fetter upon the Court's general
discretion in such matters ... "
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[21] Past awards provide a guide only. Courts are expected to exercise
a judicious discretion to ensure that the award is fair. Fairness
encompasses a delicate balance amongst the competing interests
at play. Holmes J sounded a warning in Pitt v. Economic Insurance
Co Ltd 1957 (3) SA 284 (N) that:
"The court must take care to see that its award is fair to both sides - it must
give just compensation to the plaintiff, but it must not pour out largesse from
the horn of plenty at the defendant's expense".
[22] Eksteen Jin Ambrose v Road Accident Fund 2011 (6C4) QOD 13
(ECP) at [48] also had this to say:
"General damages: In assessing an award for general damages the court has
a broad discretion to award what it considers to be fair and adequate
compensation. The court will generally be guided by awards previously made
in comparable cases and will be alive to the tendency for awards to be higher
in recent years than was previously the case. (Compare De Jongh v Du
Pisanie NO 2005 (5) SA 457 (SCA) 457D-E). In considering previous awards,
it is appropriate to have regard to the depreciating value of money due to the
ravages of inflation. It would however be inappropriate to escalate such
awards by a slavish application of the consumer price index. (See AA
Onderlinge Assuransie Assosiasie BPK v Sodoms 1980 (3) SA 134 (A))."
[23] Adv Njoka did not refer this Court to any comparable cases for
consideration, whilst Adv Maree placed much store on Baleka and
Lauw. In Lauw the plaintiff whilst driving through the streets of
Coldridge noticed a burning tyre. She then proceeded to the home
of her father. After parking her car, the plaintiff walked with her son
to a shop. On route she met a friend, Sally who joined them. The
plaintiff observed a group of boys standing on the road. Several
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unsuccessful attempts were made to contact members of the
South African Police, ("the SAPS"), via cell phone. While standing
there, they saw a police van emerging. Those on the street started
to flee to evade the SAPS . A police officer alighted from the police
van and started to discharge his firearm.
[24] The plaintiff was shot twice on her right lower leg and once on the
left lower leg, whilst leaning against a palisade fence. After the
shooting she went to the police station to lay a charge. Hereafter,
she went to Joe Morolong Hospital to receive treatment for her
injuries. At the hospital, she was seen and examined by a doctor.
However, her wound was merely cleansed, and she was referred
to a local clinic to have the wound dressed.
[25] Unfortunately, her wound did not show any signs of improvement.
For this reason, the plaintiff again consulted with a private doctor
who referred her for admission to a hospital. The plaintiff was
subsequently admitted for five (5) days, from the 01 to the 05 May
2018, at the Vryburg Private Hospital.
[26] Whilst the plaintiff in Lauw was also shot innocently, the other facts
are distinguishable. First, she was shot three times. Second, she
was admitted to hospital for five (5) days.
[27] In Baleka, on 19 August 2011 there was a huge service delivery
protest march in Tembisa, Ekurhuleni. The protest march was well
attended. The major road which links Tembisa and surrounding
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areas was blocked with rocks, scrap metal and burning tyres. There
was a heavy contingency of law enforcement both from the South
African Police Services and the Ekurhuleni Metro Police. The first
plaintiff was shot twice on the hand with rubber bullets; the first
plaintiff was detained in the hospital for several days; the second
plaintiff was in the company of police for a period of twenty-five
minutes and later dropped at her house. Dr Wouter for the
defendant examined the first plaintiff on 4 February 2013. He
diagnosed him with significantly reduced function of the non
dominant hand. This conclusion was corroborated by Prof Biddulph
for the first plaintiff. The latter expert recommended open reduction
and internal fixation of the fourth metacarpal and bone graft. Once
more, the facts in Baleka are distinguishable.
[28] In Minister of Safety and Security v Seymor 2006 (6) SA
320 (SCA) the court held:
"The assessment of awards of courts damages with reference to awards
made in previous cases is brought with difficulties. The facts of a particular
case need to be looked as a whole and few cases are directly
comparable. They are a useful guide to what other courts have considered
to be appropriate, but they have no higher value than that ... "
(29] This approach was also confirmed by the Constitutional Court
in Mah/angu and Another v Minister of Police 2021 (7) BCLR
698 (CC) where it was held that the awarding of damages in such
a case, is intended to deter and prevent future infringements of
human rights, by an organ of state. Moreover, the apex court
reiterated that the award of damages constitutes a goodwill gesture
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for the successful plaintiff and not intended to try and rectify the
wrong that has been committed.
[30] The perception that awards in actions of this nature are a
compensation structure should not be fueled. The legal metaphor
that aptly deserves consideration is that each case is decided on its
own exigencies. Crucial factors that must be considered,
fundamental to an award for general damages would be (i) the
length of the pain (i) during the assault, (ii) during recuperation and
(iii) possible future treatment.
[31] In respect of costs, there is no basis to deviate from the general
proposition that costs follow the result. Notwithstanding the award
falling within the domain of the Magistrates Court, the plaintiff was
justified in approaching the High Court. Accordingly, I will order costs
on the High Court scale.
Order
[31] I accordingly make the follow ing order:
(i) The defendant is to pay the plaintiff and amount of
R100 .000.00
(ii) Interest on the aforesaid sum at the legally prescribed rate from
date of issue of sum m ons to date of final payment.
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(iii) The defendant is ordered to pay the costs of suit on a party -
and - party basis on the High Court Scale "B", to be taxed.
OF THE HIGH COURT OF
SOUTH .AFRICA ,NORTH WEST OIVISION r
MAHIKENG
APPEARANCES
Date of Hearing:
Date written heads
submitted by plaintiff:
Date written heads
submitted by defendant
Date of Judgment:
Counsel for plaintiff:
Attorney for plaintiff:
Counsel for Defendant:
Attorneys for Defendant
15
15 October 2024
25 October 2024
29 October 2024
10 January 2025
Adv G.V Maree
Nienaber &Wissing
Attorneys
10 Tillard Street
Mahikeng
Adv X Nyoka
State Attorneys
Cnr Sekame Road
1 st Floor, East Gallery
Megacity Complex
Mmabatho