WENTZEL -THOMPSON J
Introduction
[1] This is an application for default judgment in an action in which the plaintiff, Mr Petrus
Madoda Nzima, seeks damages arising from what is alleged to have been an unlawful
assault, arrest and detention by members of the police officers acting within the sphere
of the defendant’s responsibility. The matter is unopposed as the defendant’s defence
has been struck out.
[2] In the result, the matter comes before the Court on the basis that the plaintiff must
nevertheless prove such facts and quantum as are necessary to justify the relief sought.
Default judgment does not relieve a court of the obligation to scrutinise the evi dence,
particularly where the claim includes substantial patrimonial damages founded upon
expert opinion and actuarial calculation.
The facts
[3] The plaintiff’s case, in summary, is that on 31 July 2015, while driving a taxi and
transporting passengers from Orange Farm to Southgate Mall, he was stopped at or
near a roadblock in the Klipriviersberg area, dragged from the taxi and assaulted by
officers who viciously kicked the plaintiff to extent that they fractured his left proximal
tibia. After this, the officers forced the plaintiff to crawl into a police car where he was
left for most of the without any medical attention and was ultimately release d without
charge. Even then the officers did not secure medical attention for the plaintiff or call an
ambulance and the plaintiff was compelled to call his boss who took him to hospital. If
true, there can be no justification for this level of police brutality.
[4] On admission to the hospital the plaintiff was found to have a left tibial plateau fracture
requiring open reduction and internal fixation. It is the plaintiff’s and that the sequelae
of his injuries have materially impaired his ability to continue working as a taxi driver as
he is unable to drive a manual vehicle as this requires his continuously pushing in the
he is unable to drive a manual vehicle as this requires his continuously pushing in the
clutch for lengthy periods routinely demanded of taxi drivers, particularly where they do
not own the taxis they are driving.
The issues
[5] The issues which arise are, first, whether the admitted or uncontroverted facts establish
liability for the assault and for the deprivation of liberty; second, what amount should be
awarded for general damages arising from the bodily injury and its sequelae; third, what
should be awarded for the impairment of dignity, freedom and bodily autonomy caused
by the arrest and detention; fourth, whether the claim for past and future loss of earnings
has been proved on a balance of probabilities; fifth, whether the plaintiff has proved
future medical expenses; and finally, what order should be made as to costs.
The evidence
[6] The plaintiff relies upon the hospital records, the J88 medical examination report,
medico-legal reports from an orthopaedic surgeon, occupational therapist, industrial
psychologist and actuary, his own affidavit and the heads of argument filed on his behalf.
The hospital records and the medico-legal evidence are material because they provide
objective support for the existence of a serious fracture and for the treatment that
followed.
[7] The plaintiff was admitted to Chris Hani Baragwanath Hospital on 31 July 2015 and
discharged on 7 August 2015, during which period, internal fixation was performed to
the left proximal tibia.
Analysis of the evidence
[8] In the plaintiff’s notice of intended legal proceedings, which preceded the action, notice
was given that the plaintiff was assaulted, injured and detained in a police vehicle in
circumstances in which the windows of the police vehicle were closed and he w as not
taken to a police station or brought before a court. Although such a notice is not itself
proof of all facts alleged, it is consistent with the version later advanced by the plaintiff
under oath.
[9] On liability for assault, the starting point is the fundamental common -law and
constitutional protection of bodily integrity. An intentional and unlawful application of
constitutional protection of bodily integrity. An intentional and unlawful application of
force to another person is actionable under the actio iniuriarum and, where patrimonial
loss flows from the physical injury, under the Aquilian action. In Minister of Justice v
Hofmeyr the Appellate Division emphasised that bodily integrity protects not merely
freedom from direct physical aggression, but the broader interest in corpus and
personality.1 The plaintiff’s evidence that he was kicked with sufficient force to cause a
1 1993 ZASCA 40; 1993(3) SA 131 A at 145 H-1
tibial plateau fracture is supported by the clinical records and is not contradicted by any
admissible evidence from the defendant. The evidence that he was dragged from the
taxi and then forced to crawl in front of all of his passengers and onlookers also
constitutes a significant impairment of his dignity.
[10] However, the fact that the plaintiff’s version is unopposed does not mean that every
assertion must be accepted without evaluation. A court must still consider inherent
probabilities, objective corroboration and the extent to which expert opinions rest upo n
proved facts. On the evidence before the Court , however, the fracture was clearly not
trivial or an unexplained injury. The timing of the admission, the nature of the fracture,
the need for internal fixation , as well as the plaintiff’s subsequent complai nts are
sufficiently consistent with the pleaded assault to establish factual causation on a
balance of probabilities.
[11] The unlawful detention claim stands on a related but distinct footing. Once a deprivation
of liberty is proved, the defendant bears the burden of justifying it. That principle has
been repeatedly affirmed by the Supreme Court of Appeal in wrongful arrest a nd
detention cases. 2 The plaintiff’s evidence is that he was confined in a vehicle from
approximately 07h30 until about 16h30, was not charged, was not taken to a police
station, and was released without being brought before a court. No lawful basis has been
advanced for that deprivation of liberty. The detention was accordingly unlawful.
[12] The assessment of damages for unlawful arrest and detention is not an arithmetical
exercise. It is an award of solatium, informed by the duration and circumstances of the
detention, the indignity suffered, the conduct of the officials, the plaintiff’s personal
circumstances, and comparable awards, while avoiding both excessive generosity and
trivialisation of the right to liberty. In Minister of Safety and Security v Tyulu, the Supreme
Court of Appeal cautioned that damages must be commensurate with the injury inflicted
and must reflect the seriousness with which arbitrary deprivation of liberty is viewed in
our law.3 In Minister of Safety and Security v Seymour the Court warned that previous
awards are guides, not tariffs. 4
2 Mbokazi v Minister of Police and Another (81278/15) [2020] ZAGPPHC 286 (10 June 2020)
3 Minister of Safety and Security v Tyulu (327/2008) [2009] ZASCA 55; 2009 (5) SA 85 (SCA) ; 2009
(2) SACR 282 (SCA) ; [2009] 4 All SA 38 (SCA) (27 May 2009)
4 Minister of Safety and Security v Seymour (295/05) [2006] ZASCA 71; [2007] 1 All SA 558 (SCA);
2006 (6) SA 320 (SCA) (30 May 2006)
[13] The plaintiff’s detention lasted approximately nine hours. In ordinary circumstances, that
period might attract a moderate award. The aggravating features here are, however,
substantial. The detention followed immediately upon an assault which, on the accepted
evidence, caused a serious fracture. This means that the plaintiff would have been in
acute pain; despite this he was confined in a vehicle rather than properly processed at
a police station and without being afforded any medical attention. The plaint iff was
exposed to humiliation as a working taxi driver stopped in the presence of passengers.
More importantly, the plaintiff was not charged or brought before any judicial authority.
These features distinguish the case from a bare unlawful arrest of shor t duration in
tolerable conditions.
[14] The plaintiff’s counsel referred me to the awards a number of cases involving short
periods of detention including De Klerk v Minister of Police,5 Lehoke v Minister of Police6
and Van der Nest NO v Minister of Police.7 These authorities are useful in illustrating the
range of awards, but the present case involves the conjunction of detention, public
humiliation and untreated physical injury. These additional factors serve to exacerbate
the amount of damages.
[15] I am satisfied that an award of R120 000 for unlawful arrest and detention is fair and
proportionate. The R200 000 contended for by the plaintiff would risk treating the nine -
hour detention as comparable to substantially longer custodial detention, while an award
in the range of the lowest comparators would understate the aggravating circumstances.
The award of R120 000 recognises the gravity of the deprivation, the indignity of
confinement in a vehicle, the absence of any lawful justification, and the plai ntiff’s pain
and suffering during the detention.
[16] Turning to general damages for bodily injury, the orthopaedic evidence records a left
[16] Turning to general damages for bodily injury, the orthopaedic evidence records a left
proximal tibial plateau fracture, the application of a plaster back slab, open reduction
and internal fixation, internal plates and screws in situ, residual depression of the lateral
tibial plateau, pain, stiffness, swelling, the use of a walking stick, and post -traumatic
osteoarthrosis of the left knee. The plaintiff was hospitalised for about a week and
continues to complain of pain aggravated by cold weather and activity.
[17] Awards for general damages in personal injury matters are intended to compensate for
pain, suffering, loss of amenities of life, disfigurement where present, disability and the
5 De Klerk v Minister of Police (329/17) [2018] ZASCA 45
6 Lehoke v Minister of Police full Bench of the North West Division (CIV APP MG 27/2023 [2024]
ZANWHC 277
7 Van der Nest NO v Minister of Police (2025 ZASCA) 42
broad human consequences of injury. They must be fair to both parties and must take
into account comparable cases without being enslaved by them.⁵ The plaintiff relies on
cases involving leg fractures and police violence, including Mbokazi v Minister of Police
and another,8 Kubayi v Road Accident Fund 9 and Morris v Road Accident Fund.10 Those
cases demonstrate that serious lower -limb fractures with lasting sequelae may justify
substantial awards, but each case remains fact-sensitive.
[18] There is no evidence that the plaintiff suffered a complete loss of mobility. There is,
however, objective evidence of a significant intra -articular knee injury, operative
treatment, persistent pain, probable degenerative consequences and a future likelihood
of further surgical intervention to remove the screws required for the fixation. The plaintiff
suffered a serious fracture affecting his mobility and employability as his employment
depended on his ability to drive a taxi.
[19] The Court is of the view that an award of R450 000 for general damages arising from
the assault and orthopaedic injury is appropriate. This amount gives due weight to the
plaintiff’s pain, hospitalisation, surgical treatment, ongoing impairment and future risk,
while recognising that the comparable awards cited by the plaintiff include injuries and
circumstances that are not identical and should not be converted into a tariff.
[20] The next issue to consider is the plaintiff’s claim for future medical expenses. The
orthopaedic surgeon recommends provision for removal of internal fixation and possible
knee replacement, with associated conservative treatment, including follow -up
consultations, pain control, radiological investigations and physiotherapy. The plaintiff’s
counsel recommends that an amount of R201 331.39 be provided to cover the cost of
removing the screws and a possible knee replacement. The defendant filed no contrary
expert report. In circumstances where the medical recommendations of the orthopaedic
expert report. In circumstances where the medical recommendations of the orthopaedic
surgeon is not contradicted and is supported by objective orthopaedic pathology, the
court finds that the plaintiff has established a need for provision to be made for future
medical expenses.
[21] The court will thus allow future medical expenses in the amount of R201 331.39, subject
to the ordinary qualification that the award is made on the evidence presently before the
Court and is not a finding that every anticipated procedure is inevitable. It is sufficient
8 Mbokazi v Minister of Police and Another (81278/15) [2020]
9 Kubayi v RAF (715/2021) [2024] ZAGPPH 696
10 Morris v RAF (99303/15) [2018] ZAGPPHC 486
that the future treatment is reasonably probable and that the amount claimed is
supported by expert opinion.
[22] The more difficult question for the court to decide concerns the plaintiff’s claim for past
and future loss of earnings. The plaintiff was born in 1964 and was approximately 51
years old at the time of the incident. He only attained a Grade 7 level of education. The
evidence advanced on his behalf is that he had worked as a taxi driver for many years
and earned the paltry salary of approximately R700 per week, or R2 800 per month,
before the incident. This is a serious indictment on the taxi industry and t he level of
exploitation.
[23] That being said, the Court cannot ignore that the industrial psychologist proceeds from
the premise that the plaintiff would probably have continued as a taxi driver or in
comparable work until ordinary retirement age, and that the injury rendered him
effectively unable to compete in the open labour market. This Court approaches
industrial psychologists’ reports with caution as all too often that are based upon
premises so divorced from reality that justifies their rejection. In this case the industrial
psychologist paid little heed to the plaintiff’s limited education and the fact that he would
soon be approaching retirement age.
[24] The Court approaches the actuarial calculations with the same scepticism. An actuarial
calculation is only as sound as the assumptions upon which it rests. In Southern
Insurance Association Ltd v Bailey NO 11 Nicholas JA explained that a court may either
make a rounded estimate or be guided by actuarial computation, but must ultimately
exercise a judicial discretion In Road Accident Fund v Guedes,12 the Supreme Court of
Appeal reaffirmed that actuarial calculations are useful where founded on reliable
assumptions, but cannot replace judicial assessment.⁷
[25] The premise of the industrial psychologist requires critical scrutiny. The plaintiff’s age,
low level of formal education, absence of formal proof of earnings, the physical demands
of taxi driving, the informal character of the taxi industry, and the ordin ary uncertainties
of continued employment all matter. So too does the fact that the plaintiff was already in
the latter portion of his working life when injured. It is not realistic to assume a secure,
uninterrupted earnings trajectory to age 65 without meaningful contingency deductions.
11 1984 (1) SA 98 (A)
12 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19; 2006 (5) SA 583 (SCA) (20 March
2006)
The informal taxi sector is vulnerable to fluctuations in route access, vehicle availability,
health, regulatory circumstances and market demand.
[26] On the other hand, it would be equally unrealistic to ignore the plaintiff’s demonstrated
work history and the fact that a serious knee injury would materially reduce the prospects
of a person with limited education and largely driving -based experience. A taxi driver
must be able to sit for extended periods, operate pedals reliably, climb in and out of a
vehicle, respond to traffic conditions and work long hours. Persistent knee pain,
stiffness, swelling and the need for future surgery would plainly impair that capacity.
[27] The actuarial calculation concludes that a total loss of earnings of R572 921 after
applying contingencies of five per cent for past loss and fifteen per cent for future loss
is apposite. Those contingencies are, in my view, too light on the uninjured scenario and
insufficiently responsive to the uncertainties in the injured scenario. A five per cent past
contingency may be conventional in stable formal employment, but the plaintiff’s income
was modest, informal and not supported by payslips, bank statement s or employer
records in the material presently before the Court. A fifteen per cent future contingency
likewise underestimates the uncertainties inherent in projecting earnings for an older
worker in informal transport industry.
[28] This notwithstanding, the plaintiff has nevertheless proved a real diminution of earning
capacity. The correct approach is not to reject the actuarial calculation altogether but to
moderate it to reflect realistic contingencies and evidential limitations. The court
considers that the fair result is to allow seventy per cent of the actuarially calculated
amount. This recognises the seriousness of the injury and the likelihood that the
plaintiff’s earning capacity has been materially impaired, while discounti ng the
plaintiff’s earning capacity has been materially impaired, while discounti ng the
calculation for the uncertainties in the industrial psychologist’s assumptions and the
limited proof of pre-incident earnings.
[29] Seventy per cent of R572 921 produces an amount of R401 044.70. I would award that
amount for past and future loss of earnings. This is a judicially moderated figure rather
than a mechanical recalculation, and it reflects the Court’s assessment that the pl aintiff
has proved the existence of loss but not the full extent of the actuarial claim on the
assumptions advanced.
[30] The amounts to be awarded are therefore:
a. R450 000 for general damages arising from the assault and bodily injury;
b. R120 000 for unlawful arrest and detention;
c. R201 331.39 for future medical expenses; and
d. R401 044.70 for past and future loss of earnings.
[31] The total award is thus R1 172 376.09.
Costs
[32] As to costs, the dilatory conduct of the defendant resulted in its defence being struck
out. This is far to prevalent a scenario involving government departments. It means that
the vast majority of claims against the State go undefended, many of which ough t
properly to have been defended; it means that all too many matters whilst defended,
ultimately end up undefended either because the State’s defence is struck out for
flagrant non-compliance with Court orders or because not steps are taken whatsoever
to challenge the merits or to have the claimant’s examined and counter -veiling expert
reports placed before the Court.
[33] This constitutes a flagrant disregard of the duties of Government departments and the
State Attorney to perform the duties entrusted to them and to safeguard taxpayer’s
money. It is after all out of taxpayer’s money that these awards are met, to the detriment
of service delivery, so often stated not to have been performed due to the lack of money.
[34] This has to end.
[35] This Court would like to see a concerted effort made by Government Departments to
defend the claims made against them and not to ignore them with gay abandon as it is
taxpayers and not their money that is paying these undefended claims. Quite frankly it
is a disgrace that a claim like the present proceeded undefended because the Defendant
ignored a Court Order without any regard at all to the consequences.
[36] It is entirely inappropriate for the Courts to have to scrutinise the evidence on an
undefended basis with no assistance at all from the relevant Government Departments
or the State Attorney engaged to represent them.
[37] That being said, little purpose is served in awarding attorney and client costs against the
defendant as it is the taxpayer who will ultimately foot this bill. I feel that the time is now
approaching for Ministers and Directors General to foot the bills of undefended claims
de boniis propriis; perhaps only then will these officials ensure that the Departments they
Appearances:
For the Plaintiff: Adv M Tonyela
No appearance for the defendant
Date of the hearing: 16 March 2026
Date of the judgment: 26 May 2026