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[2026] ZAGPPHC 693
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Minister of Police v Ndobe (A159/2023; 22926/14) [2026] ZAGPPHC 693 (9 June 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appeal Case No.A159/2023
Court a
quo
Case
No:22926/14
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES.
DATE
09/06/2026
SIGNATURE
THE MINISTER OF POLICE
Appellant
and
ZIMELE MAXWELL NDOBE
Respondent
JUDGMENT
THE COURT
Introduction
1]
This appeal comes before this Full Court with leave of the Supreme
Court of Appeal. The appellant, the defendant in the court
a
quo,
has
noted an appeal against the order granted by Moshoana J awarding the
respondent
[1]
compensation in an
amount of R893 859.00 – as well as interest and costs -
for damages resulting in the loss of the
use of his Nissan bakkie
(the bakkie) when it was destroyed in a fire whilst in the possession
and under the control of the appellant.
Background
2]
It is common cause that on 29 January 2012 and near Ficksburg, Free
State Province, the respondent was arrested by members of the
appellant. At the time of his arrest, his bakkie was confiscated
by
them and impounded as an SAP13 exhibit at Ficksburg. He was charged
with possession of dagga. On 17 September 2012, the charges
were
withdrawn. Despite making several enquiries about his bakkie and
seeking its return thereafter, it was only during April 2013
that the
respondent was informed that his bakkie had been destroyed in a fire
that had broken out in the compound where his bakkie
was impounded by
the appellant.
3]
During March 2014 the respondent instituted action against the
Minister
of Police for material damage to the bakkie as well as
compensation for loss of income (referred to in the pleadings as
“loss
of profit”). He alleged that prior to his arrest he
ran a transportation business, that he had used the bakkie to
transport
stock for his spaza business and for the transportation of
clients’ goods. He pleaded that this was his only means of
income.
4]
During April 2018 the appellant conceded the merits of the
respondent’s
claim. At the trial on the quantum of the
respondent’s claim, the claim for material damage was not
pursued.
The loss of profit from the spaza shop was abandoned
during the trial. Thus, the trial proceeded before Moshoana J on the
following
heads of quantum:
a)
whether the respondent proved his loss of income;
b) if
so, what amount should he be awarded.
5]
In support of the respondent’s case, the trial court heard the
evidence of the respondent himself, a former customer of his (Mr
Lawrence Nkosi), and that of an industrial psychologist, Mr Nqapela.
The appellant presented no evidence to rebut the respondent’s
case at all – there were no expert reports, and no other
evidence was presented by the appellant. At the end of the evidence
presented by the respondent’s three witnesses, the respondent
handed in an updated actuarial calculation which calculated the
respondent’s loss. The actuary was not called to give evidence
because no objection to this report (in any form) was made by the
appellant. In fact, the submission was
“
Mr
Mashaba:
Our case…There is no loss. But anyway, there is no
objection,
Your Lordship. For the actuary to come and testify is going to be a
waste of time, Your Lordship.”
6]
The essence of the appeal is whether the respondent had established
a
monthly profit of R8 000.00 from an informal transport business
he had been conducting when the bakkie was destroyed in
the fire.
The secondary question is whether the trial court, in awarding
compensation for loss of profit, ought to have applied
a 50%
deduction for contingencies as opposed to the 30% deduction applied.
The
evidence
The
respondent
7]
The respondent testified that he held a Grade 11 in schooling, had
received a Security Grade B certificate, attended an armed reaction
course, had worked at PickitUp in Selby as a general worker
from 2006
until 2007 and had then obtained employment at Kloof-Leeudoorn Mine
where he had received training in plumbing and welding.
8]
During approximately 2007, the respondent purchased the bakkie. The
purpose of this was to earn extra income and to provide for him
eventually when he stopped working. He would transport people,
rent
the bakkie out and would pick up and drop off goods for people over
the weekend or after hours to supplement his income.
9]
In 2011 he was diagnosed with epilepsy and had to stop working at
the
mine. It was then that the bakkie was used as his sole source of
income.
10]
In his evidence, the respondent identified five regular clients. He
transported
fruit and vegetables, tools, clothing, building materials
and rubbish, as well as chickens for them. He also transported
children
for one of his clients. From time to time, he had occasional
clients. Sometimes, he hired out the bakkie to clients.
The respondent estimated what his regular clients
paid him monthly. The amounts could fluctuate depending on the
distance to the
delivery destination.
11]
He stated that his income was R8 000 for his transport
business,
[2]
that business was a
cash business and was operated without a bank account – he thus
had no records or proof of income (or
expenditure) at all. Of course,
once he was arrested in 2012 and his bakkie confiscated, all of this
ended abruptly.
12]
Much was made of the respondent’s varying versions vis-à-vis
his
income in cross-examination. The questions were pointedly aimed
at the version he had given to the Industrial Psychologist, Mr
Nqapela which was detailed in a report penned by the latter. This is
a rather interesting tactic given that the appellant had refused
to
admit the report during the pre-trial conference. But
cross-examination on the issue of the respondent’s income
yielded
little result, other than the evidence that the bakkie
yielded him an income of R8 000 per month. When challenged on
the veracity
and reliability of this evidence, especially given that
there were no records of his income or expenditure, the respondent
specifically
pointed out that he had managed to purchase assets,
build a house and maintain his family with only the money received
from this
source – this was not challenged by the appellant.
Mr
Nkosi
13]
Mr Nkosi testified that he was a regular customer and former client
of the respondent.
He confirmed that the respondent owned a cream
coloured bakkie which “he would use for his own
survival”: he
would use it to help people out, would rent it
out sometimes, would use it to load goods for people and on occasion
he would buy
stock which he sold at his spaza shop. He also
used it as a general transport business and would transport people
from the
location to uMzimkhulu, Matiele and other places. This all
came to a halt when the bakkie was taken away from him. No inroad
into
Mr Nkosi’s evidence was made at all during
cross-examination. This then corroborated the respondent’s
version that
he used the bakkie as his source of income.
Mr
Nqapela – the Industrial Psychologist
14]
Mr Nqapela’s report is dated 17 July 2019. He used collateral
information
of the respondent’s clients and the respondent’s
version to opine on the respondent’s loss of income
[3]
.
He opined that the respondent operated a micro-business in the
informal sector which he testified is typical in the townships.
His
evidence was that from 2015 to 2017 he was a township economist
specialist. He conducted research into more than 52 businesses
particularly in Soweto, Orlando West and Orlando East. Of those 52,
12 were considered to be informal businesses according to the
model
under a project called the Township Revitalization Strategy.
15]
The research he conducted demonstrated that these informal businesses
do not
use any form of invoicing, do not generate statements nor have
any written form of stocktaking or purchases. They are also not
registered for UIF and operate as a cash business.
16]
Mr Nqapela is a disk jockey over the weekends when he rents a truck.
His evidence
was that not once has he been issued with any form of
invoice.
17]
His evidence as regards the respondent’s income was that, given
the number
of clients of respondent that had provided affidavits, and
considering the possibility that he may have had other clients, the
income of R8 000 is conservative. He also opined that businesses
such as that of the respondent expand over time and that the
respondent’s business had potential.
18]
The nub of Mr Nqapela’s evidence as set out in paragraph 17
supra was
not disturbed at all in cross-examination.
The
actuarial calculation
19]
Given that the respondent had abandoned the claim for damages
pertaining to
the loss of income relating to the spaza shop, the
respondent handed in new actuarial calculations, by Mr Jacobson, at
the end
of his case. As stated, these calculations were not disputed
by the appellant.
20]
Mr Jacobson calculated the respondent’s loss on his income of
R8 000
per month in the amount of R1 310 816. He
postulated three scenarios:
a)
scenario 1
Value of income but for
incident
R1 310 816
15% contingency
deduction
R 196 622
________________________
R1 114 194
Value of income having
regard
to the
incident
R 24 960
5% contingency
deduction
R 1 248
_______________________
R
23 712
________________________
NET PAST
LOSS
R1 090 482
b)
scenario 2
Value of income but for
incident
R1 310 816
20% contingency
deduction
R 262 163
________________________
R1 048 653
Value of income having
regard
to the
incident
R 24 960
5% contingency
deduction
R 1 248
______________________
R 23
712
______________________
NET PAST
LOSS
R1 090 482
c)
Scenario 3
Value
of income but for incident
R1 310 816
30%
contingency deduction
R 393 245
________________________
R 917 571
Value
of income having regard
to the
incident
R 24 960
5%
contingency deduction
R 1 248
______________________
R 23 712
______________________
NET PAST
LOSS
R 893 859
21]
None of these calculations was disputed by the appellant.
The
appellant’s case
22]
The appellant chose not to call any witnesses or present any evidence
of an
expert to rebut the case that had been presented by the
respondent. There was thus nothing before court to contradict the
respondent’s
case.
The
legal position
23]
At the end of the day, the court
a quo
correctly found that
the evidence before the court, on a preponderance of probabilities,
established that the appellant should
be held liable for the
respondent’s loss – this was, in any event conceded prior
to the commencement of the trial.
24]
In deciding what amount of damages to award the respondent the court
must balance
the evidence presented on the issue of the respondent’s
loss of income. Whilst it was argued
a quo
, and again before
us, that the respondent had presented contradictory and
unsubstantiated evidence as to his income, what the appellant
loses
sight of is that there was no challenge at all before court as
regards the respondent’s case on his nett income: his
testimony, whilst without documentary corroboration, withstood the
scrutiny of cross-examination. Added to this was Mr Nkosi’s
evidence, which was not challenged. The final nail was the evidence
of the respondent’s expert who testified that an income
of
R8 000 in the informal sector was, in fact, conservative.
25]
The appellant argued before us that Mr Nqapela had relied on
incorrect and unverified
information regarding the respondent’s
income of R8 000 per month. It argued that, although affidavits
had been given
to him from respondent’s clients, he had not
personally contacted him and therefore that information was
unverified. He also
argued that Mr Nqapela had failed to take into
account the data and/or statistics about earnings in the informal
sector set out
by Robert Kock in his book Quantum Yearbook,
[4]
and specifically that the learned author states that in the year
2012, from a number of 2 645 790 sampled self-employed
employees, only 3,6% earned a salary between R88 410 –
R113 200 per year.
26]
The problem with this argument is that the information as regards the
respondent’s
clients was placed before the court during the
appellant’s cross-examination of the respondent. In any event,
the court did
not rely on that information when deciding the matter.
Furthermore, the appellant failed to give Mr Nqapela an opportunity
to respond
to the argument on the opinion raised by Robert Kock in
his publication – he simply failed to raise it with Mr Nqapela
at
all, and he is therefore precluded from arguing this issue now:
“
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As
a general rule it is
essential, when it is intended to suggest that a witness is not
speaking the truth on a particular point,
to direct the witness’s
attention to the fact by questions put in cross-examination showing
that the imputation is intended
to be made and to afford the witness
an opportunity, while still in the witness box, of giving any
explanation open to the witness
and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling
the witness is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated
by the House of Lords in
Browne v Dunn
and has been adopted and consistently followed by our courts.
[62]
The rule in
Browne v Dunn
is not merely one of professional
practice but “is essential to fair play and fair dealing with
witnesses”. It is still
current in England
and has
been adopted and followed in substantially the same form in the
Commonwealth jurisdictions.
[63]
The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed,
particularly
where the imputation relies upon inferences to be drawn from other
evidence in the proceedings.
It should be made clear not
only that the evidence
is
to be challenged but also
how
it is to be challenged. This is so because the witness must be given
an opportunity to deny the challenge, to call corroborative
evidence,
to qualify the evidence given by the witness or others and to explain
contradictions on which reliance is to be placed.
[64]
The rule is of course not an inflexible one. Where it is quite
clear that prior notice has been given
to the witness that his or her
honesty is being impeached or such intention is otherwise manifest,
it is not necessary to cross-examine
on the point,
or
where “a story told by a witness may have been of so incredible
and romancing a nature that the most effective cross-examination
would be to ask him to leave the box.”
[5]
27]
In my view, the court
a quo
correctly applied the test set out
in
SARFU
supra.
28]
It is also so that even in cases where damages are difficult to
determine, this does not
oust a plaintiff’s claim for damages:
the court must still assess the evidence that has been produced to
assess the quantum
of loss.
[6]
“…
the
fact is that the courts habitually have to grapple with problems of
this nature where resort must be had to estimates and speculation
in
order to arrive at a figure which the court considers to be as fair
as possible to both sides. This is clear from the well-known
and
much-quoted
dictum
by
Nicholas JA in
Southern Insurance
Association Ltd v Bailey NO
:
'Any enquiry into damages
for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the
future, without the benefit of
crystal balls, soothsayers, augurs or oracles. All that the Court can
do is to make an estimate,
which is often a very rough estimate, of
the present value of the loss.
It has open to it two
possible approaches.
One is for the Judge to
make a round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter
of guesswork, a blind plunge
into the unknown.
The other is to try to
make an assessment, by way of mathematical calculations, on the basis
of assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative.
It is
manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason adopt
a
non
possumus
attitude and make no award.'
“
[7]
29]
In so doing,
the court a quo was therefore correct in
accepting the respondent’s version that he had suffered a loss
of income of R8 000
per month for which he had to be compensated
as there was no other information placed before the court to
demonstrate that doing
so was incorrect. Any inconsistencies in the
respondent’s evidence were of such a nature, given all the
other corroborating
evidence, as set out supra, that it does not
disturb the overall probabilities in favour of the respondent.
30]
Ultimately, the appeal lies against the amount of damages awarded to
the respondent.
The appellant argues that the court should have
applied a 50% contingency instead of the 30% it ultimately applied.
It is settled
law that an appeal court does not lightly interfere
with awards of damages made by a trial Court unless there is a
‘substantial
variation’ or a “striking disparity”
between the award of the trial court and what the appeal court
considers
ought to have been awarded.
31]
In
De
Jongh v Du Pisane
[8]
the
court found that contingency factors cannot be determined with
mathematical precision but are rather discretionary in nature.
32]
In considering whether to apply a 50% contingency deduction or any of
the scenarios
postulated by the respondent’s uncontested
actuarial report, the court a quo stated:
“
As
is always the case in matters of this nature parties quibble over
contingencies to applied over a fair and reasonable award.
Mashaba
urged this Court to apply a 50% contingency. In support of that urge,
he submitted that because the evidence of R8000 per
month was not
satisfactory, a higher contingency deduction was warranted. With
considerable regret, I disagree with his submission.
As a general
approach, contingencies provide the means by which to blend the
scientific and the equitable. Such involved a process
of subjective
impression or estimation rather than objective calculation. It is not
based on the strength of the evidence seeking
to prove the loss.
Generally, in determining the contingency, the court is required to
take into account both positive and negative
contingencies.”
[9]
33]
I cannot fault the reasoning of the court
a quo
. At the end of
the day, the 30% contingency applied is in favour of the appellant,
especially in circumstances where it admitted
the updated actuarial
calculation into evidence without disputing the content, and it
failed to present any other evidence of its
own on this issue.
Conclusion
34]
In our view, the court
a quo
did not misdirect itself and this
appeal must therefore fail.
Costs
35]
The respondent argued that as the appellant had employed senior
counsel to argue
the matter the matter was clearly of importance and
it was not the ordinary merits and contingency arguments that are
usually before
court.
36]
Given the complexities of the argument presented before us, costs on
Scale C
are thus justified.
A last issue
37]
The court has not dealt with the application for reinstatement of the
appeal
brought by the appellant on 14 December 2023, which included
an application for condonation for the late filing of the appellant’s
heads of argument. This application was not opposed and the parties
agreed that it should be granted so that the merits of the
appeal
could be disposed of.
ORDER:
1.
The application for condonation is granted
and the appeal is reinstated.
2.
Condonation is granted for the late filing
of the appellant’s heads of argument.
3.
The appeal is dismissed with costs, which
costs are to be taxed in accordance with Scale C.
_________________________
S
A M BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I agree
_________________________
B
NEUKIRCHER
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I agree
________________________
SK
HASSIM
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
This judgment was
prepared and authored by the judges whose names are reflected and is
handed down electronically by circulation
to the parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines.
The date for hand-down is deemed
to be __________________.
Appearances
For
Appellant
:
Adv. Mashaba SC
Instructed
by
:
The State Attorney, Pretoria
For Respondent
:
Adv C van Onselen
Instructed
by
:
Nabane Attorneys
Date
heard:
:
6 August 2025
Date
of Judgment:
:
_____________________
[1]
The
plaintiff a quo
[2]
His
evidence was that he earned R6 000 for the spaza business but
as that claim was abandoned, that income is not relevant
for present
purposes and was used in cross-examination to ultimately argue that
his evidence was speculative and unreliable
[3]
Who
had given affidavits detailing the work that the respondent had done
and the amounts that they paid him – he did not
conduct
interviews with any of them, but their evidence was introduced via
cross-examination by the appellant
[4]
2012 edition at page 107
[5]
President of the Republic of South Africa and Others v South African
Rugby Football Union and Others (CCT16/98)
[1999] ZACC 11
;
2000 (1)
SA 1
;
1999 (10) BCLR 1059
(10 September 1999) – footnotes
excluded.
[6]
De
Jongh v Du Pisani 2005 (5) SA 457 (SCA)
[7]
Bane
& Others v D’Ambrosi 2010 (2) SA 539 (SCA)
[8]
2005
(5) SA 565 (SCA)
[9]
Shield
Insurance Company Limited v Booysen
1979 (3) SA 953
(A); Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(A)