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[2019] ZASCA 186
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Witzenberg Municipality v Bridgman NO and Others (685/2018) [2019] ZASCA 186 (3 December 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 685/2018
Reportable
In
the matter between:
WITZENBERG
MUNICIPALITY APPELLANT
and
MURRAY
JOHN MARTIN BRIDGMAN NO FIRST
RESPONDENT
JACK
JACOBUS NICOLAAS LOUW SECOND
RESPONDENT
ELSABE
CORNELIA ELIZABETH LOUW THIRD
RESPONDENT
Neutral
Citation:
Witzenberg
Municipality v Bridgman NO & others
(685/2018)
[2019] ZASCA 186
(3 December 2019).
Coram:
Navsa,
Mbha, Zondi and Van der Merwe JJA and Hughes AJA
Heard:
15
November 2019
Delivered:
3
December 2019
Summary:
Application
for reconsideration in terms of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
of a refusal of petition
decided in terms of
s 17(2)
(d)
of that Act – whether petition correctly refused –
whether reasonable prospects that another court could come to a
different conclusion concerning the negligence of Municipality that
operated a resort at which a resident was raped – whether
Municipality ought to have guarded against the harm that eventuated –
whether foreseeable.
Appeal
against quantum of award of damages – amount awarded greater
than amount sought – whether amount awarded excessive.
ORDER
On
appeal from
:
Western Cape Division of the High Court, Cape Town (Donen AJ sitting
as court of first instance): reported
sub
nom
Bridgman
NO v Witzenberg Municipality (J L & another intervening)
2017 (3) SA 435
(WCC).
1 The application for a
reconsideration of the refusal of the application for leave to appeal
is dismissed with costs, including
the costs of two counsel where so
employed.
2 The appeal against the
quantum of the award of damages succeeds to the extent reflected in
the substituted order that appears
hereafter.
3 Paragraph 226.1 of the
order of the court below is set aside and substituted as follows:
‘
The
Municipality shall pay damages to the plaintiff in the sum of
R630 780, together with interest thereon from date of judgment.’
4 In respect of the
appeal against the quantum of damages no order is made as to costs.
JUDGMENT
Navsa
JA (Mbha, Zondi and Van der Merwe JJA and Hughes AJA
concurring):
[1]
This is a reconsideration of a refusal of an application for leave to
appeal, referred to this court in terms of s 17(2)
(f)
of the
Superior Courts Act 10 of 2013 (the Act), coupled with an appeal
against the quantum of an award of damages. As will become
apparent,
the two are related. The underlying facts in relation to both
constitute a terrible tale of woe, yet demonstrate human
resilience.
The history of the person at the centre of the litigation, up until
the traumatic event on which the litigation was
based, is telescoped
in the paragraphs that follow. For reasons that will become clear,
she will be referred to throughout only
as Miss L. The necessary
further details leading up to the present appeal will be dealt with
thereafter.
[2]
Miss L was born in Bulgaria. Her date of birth is uncertain. It
appears that immediately after her birth her mother gave her
up for
adoption. Miss L was initially placed in a children’s home and
thereafter transferred to a state-run institution for
disabled
children. This was on account of her slow cognitive and neurological
development. When she was approximately five months
old she was
diagnosed with spastic hemiparesis in her lower limbs and also
suffered from other chronic illnesses. There was little,
if any, hope
of significant progress in the development of her human potential.
The officials at the institution did not expect
her to live. Then a
ray of hope presented itself in the form of a South African couple,
Mr and Mrs L, who were Christian missionaries
stationed in Sofia,
Bulgaria’s capital city. They first met her in 1998, visited
her regularly and saw in her the capacity
for development. She was
later admitted to the State University hospital in Sofia. At that
stage she was in a badly neglected condition,
passive and apathetic.
Her head was shaven and her impermanent teeth were all decayed. She
had no spontaneity of movement, could
not communicate verbally and
could not crawl, roll or perform any significant movements.
[3]
In 1999 Mr and Mrs L were granted permission to transport Miss L to
South Africa on a hospital permit for a year. Here they
arranged for
her to see a range of professionals. Mr and Mrs L arranged for the
removal of her decayed teeth. She underwent physiotherapy
and
attended numerous occupational therapy sessions. Miss L was also
given speech therapy. After months of treatment she began
to walk
when held by the hand. She started showing signs of meaningful verbal
communication and was able to draw shapes and colour-in.
Miss L
returned to Sofia and Mr and Mrs L were given instructions on how to
assist her there to promote her further development.
[4]
Mr and Mrs L and Miss L visited South Africa annually and the adults
saw to it that she attended further therapy sessions here.
Her
development continued and she showed remarkable progress due, in
large part, to the efforts of an early childhood intervention
specialist. Mr and Mrs L formally adopted Miss L in 2001. Before the
event that led to the litigation culminating in these proceedings,
Miss L had developed to such an extent that she was able to play on
her own and with other children in the street and parks. She
had
developed into a good football player and was beginning to read. Her
adoptive parents had received professional advice that
they should
promote her independence which, in turn, they were informed, would
build her confidence. It is common cause that Miss
L is mildly
intellectually impaired. At the time of the incident in question she
had reading and numeracy skills at about Grade
one level and the
cognitive level of a seven to eight year old child.
[5]
On 16 January 2009 Miss L, her adoptive parents and their biological
daughter Miss Z, registered and were admitted as residential
guests
at the Pine Forest Resort, Ceres (the resort). Miss L was
approximately 18 years old at the time. The resort is owned and
controlled by the Witzenberg Municipality (the Municipality), the
applicant in the application for reconsideration and also the
appellant in the appeal against quantum. The Municipality was
established in terms of s 12 of the Municipal Structures Act 117
of
1998. Its area of jurisdiction comprises the small towns of Wolseley,
Ceres, Tulbach, Prince Alfred’s Hamlet and Op die
Berg, in the
Western Cape Province. Mr and Mrs L had visited and had been guests
at the resort a number of times over the years
preceding this last
visit.
[6]
On 20 January 2009, which proved to be a fateful day, Miss L asked
her adoptive parents whether she could go out and play on
her own in
the playground close to their unit at the resort. She was given
permission to do so. This was in line with the advice
they had
received that they should encourage her independence. Whilst at the
playground she was forcefully and physically led away
by three minors
who had gained access to the resort, aged 15, 14 and 11,
respectively, up an external staircase leading to the
entrance of a
squash court within the resort, down an internal staircase to the
floor of a squash court where she was brutally
sexually assaulted and
raped. The squash court formed part of a recreational hall. It is
close to the play area which is equipped
with swings, a trampoline
and other equipment. It is also close to a fenced-off swimming pool.
One of the boys apparently kept
a lookout while the other two were
actively involved in the sexual assault on her. The attack and its
effect on Miss L must be
seen against her history, including her past
sensory deprivation by not being held and nurtured as a small child
and her intellectual
and emotional impairments. The two boys who
actively participated in the rape were convicted and sentenced
accordingly.
[7]
Sometime after the attack, a curator
ad litem
, the first
respondent in the present case, appointed by the Western Cape High
Court on 20 December 2011, instituted an action in
that court against
the Municipality, claiming damages on Miss L’s behalf flowing
from the attack on her, on the basis
of the negligence of its
employees and / or officials. The following are the relevant parts of
the particulars of claim:
‘
The sexual assault and rape of
[Miss L] was caused by the lack of ordinary care and diligence of the
Defendant and its servants
who acted in the course and scope of their
employment with the former and who were negligent in one or more of
the following respects:
(a) they failed to employ a competent,
reliable and trustworthy security firm at the Resort;
(b) in breach of the Resort’s
General Information and Rules referred to in paragraph 5 above, [P]
and [O] were admitted as
day visitors to the Resort without advance
reservation;
(c) in breach of the Defendant’s
General rules for its Resorts and Swimming Pools referred to
paragraph 6 above, [P] and [O]
as day visitors were not restricted to
the Resort’s allocated area, which excluded the Resort’s
squash courts;
(d) in breach of the Defendant’s
By-Law referred to in paragraph 7 above, [P] and [O] were admitted to
the Resort without
admission tickets;
(e) in scheduling a meeting at 4 pm on
20
th
January, 2009 at the City Hall, Ceres which all the
Defendant’s servants at the Resort, with one exception, had to
attend;
(f) accordingly after 4 pm on 20
th
January, 2009 leaving the Resort effectively under the control of an
inadequate, incompetent, unreliable and non-trustworthy security
firm, which inter alia failed: to patrol the Resort; and monitor the
movements of [P] and [O] adequately or at all.’
The
references to P and O are to two of the three minors who were
involved in the attack on Miss L.
[8]
The Municipality defended the action. First, it denied that it owed
Miss L a legal duty to take steps, other than those that
were in
place at the resort at the time. Second, in the event that the court
held that it ought to have taken certain steps to
protect visitors to
the resort, it denied that the failure to take such steps caused the
attack and led to the injuries consequently
sustained by Miss L. In
addition, the Municipality issued a third party notice, in terms of
which it sought to lay the basis for
a claim for a contribution or
indemnification by Mr and Mrs L. The Municipality averred that in the
event of judgment being granted
in favour of the first respondent, in
his representative capacity, and in the event of it being ordered to
pay damages it would
be entitled to claim a contribution from Mr and
Mrs L on the basis that they as her adoptive parents, aware of her
mental disability,
were themselves negligent in several respects,
namely:
‘
The Third Parties, as [Miss
L’s] adoptive parents, . . . therefore had a duty of care
towards [Miss L]. The alleged damages
were caused by the lack of
ordinary care and diligence of the Third Parties, who at all relevant
times were and / or should have
been acutely aware of [Miss L’s]
severe mental disability and who were negligent and / or breached
their said duty of care
in one or more of the following respects, in
that the Third Parties:
Failed to properly supervise [Miss L]
while playing alone in the resort;
Failed to exercise reasonable care and
/ or take adequate steps to prevent ham to [Miss L] when they could
and / or should have
done so;
Failed to adequately monitor the
movements of [Miss L] at all relevant times prior to, during and
subsequent the alleged assault;
Allowed [Miss L] to stray from their
control and / or area of supervision whilst being acutely aware of
her mental disability and
consequential vulnerability and / or
exploitability;
Failed to avoid the incident where by
the exercise of reasonable care and measures, they
could and should have done so.
As a result of the aforesaid facts and
circumstances the Third Parties owed to [Miss L] a duty of care to
prevent a foreseeable
harm as suffered by her and to take reasonable
steps to prevent
inter alia
the assault from occurring and /
or were negligent in one or more of the respects as listed in
paragraph 9.2.1 – 9.2.5.
In the light of the aforementioned,
the Third Parties should be jointly and severally liable with the
Defendant to the Plaintiff,
if successful.’
[9]
Mr and Mrs L opposed the relief sought against them and denied that
they were negligent as alleged by the Municipality and consequently
that they were legally obliged to make any contribution at all. The
matter proceeded to trial with evidence adduced by all the
parties.
The court heard, inter alia, the evidence of Mrs L, experts who
treated Miss L before the event in question and who
saw her
thereafter, and security consultants who testified in support of the
respondents’ case and in support of the Municipality.
[10]
The further material parts of the evidence adduced and the relevant
common cause facts are set out hereafter. Very soon after
the attack
on Miss L, the Mayor and the Municipality’s manager arrived at
the resort. The Mayor expressed his regret at what
had occurred and
stated that he was aware of prior security lapses at the resort and
that he was busy with a program that was directed
at keeping the
youth in Ceres from participating in criminal conduct.
[11]
Ceres Alarms, the security services provider at the resort at the
time of the incident in question, had been appointed on an
emergency
basis after a predecessor’s contract had been summarily
terminated for poor performance. Ceres Alarms had been
appointed in
the absence of a thorough security assessment by the Municipality.
The Municipality’s own internal communications
show that there
had been an ongoing concern by its officials about the lack of
adequate security at many of its facilities, including
the resort.
There had been reported incidents of break-ins at the resort and an
incident involving a complaint of assault after
an argument,
apparently between two residents. The Municipality’s own
documents show a concern by officials of the threat
of some greater
harm than that which had already been experienced. Furthermore, at
the time of the incident the entire municipal
staff at the resort, 18
out of 19 staff members, had left the resort to attend a staff
meeting. The remaining member of staff was
a cashier. The staff that
attended the meeting away from the resort included, amongst others,
the swimming pool manager and other
supervisory staff.
[12]
The number of security guards employed by Ceres Alarms in attendance
at the resort at the time of the incident was limited
to two, in the
face of the Municipality’s own stated technical requirements
that at least four guards were required, with
at least two needed to
patrol the grounds within the resort on an hourly basis. Statements
made by employees of Ceres Alarms were
referred to, in which they
appreciated that four guards were necessary as part of a security
detail at the resort and they themselves
were puzzled that they had
been left with half that number.
[13]
Moreover, the evidence on behalf of the first respondent that squash
courts were locations of choice for wrongdoing was uncontested.
A
lock or supervised access to the squash court was obviously what was
called for. That was lacking. No evidence was tendered on
behalf of
the Municipality that there were budgetary constraints in relation to
any one of the aspects set out in this and the
preceding paragraph.
It is necessary to record that the following appears at the foot of a
printed document containing the resort’s
‘general
information and rules’:
‘
Please take note that the
resort gates will close at 23:00 and reopen at 07:00 to ensure the
safety and good order in the resort.
Security staff will concentrate
on patrolling . . . .’
[14]
In relation to the damages sustained by Miss L, her history set out
above, and the evidence adduced at the trial, described
in this and
the paragraphs that follow, are material. Mrs L testified that when
she approached the squash court in search of Miss
L, after she had
noticed that she was no longer in the playground, she heard her
crying, pleading with the boys to stop. She saw
the boys flee after
being alerted of her presence. Soon thereafter, Miss L came towards
Mrs L, pulling up her panties, repeatedly
saying the words: ‘It’s
very bad’. Her underwear and pants were blood-stained. She was
later seen by a doctor
who examined her. DNA linked to one of the
boys who was part of the assault on her was discovered on her body.
Curiously and infuriatingly
for Mr and Mrs L, and insensitively, the
Municipality waited until the trial had been conducted for a few days
before an admission
was made that Miss L had been raped.
[15]
When her adoptive parents arranged for Miss L to see a gynaecologist,
approximately two weeks after the incident, she was still
in an
obviously traumatised state and did not want to be touched or have
her clothes removed and the examination could only be
conducted under
general anaesthetic. The gynaecologist detected three tears in her
vaginal area, with the largest still bleeding.
[16]
Clearly influenced by her Christian upbringing, Miss L informed her
adoptive mother that she had experienced the assault on
her as one of
being ‘crossed’, which in all probability was a reference
to the Crucifixion. This was seen by the court
below as an important
feature in assessing the pain and suffering that she had endured. She
had explained to her adoptive mother
how she was taken by the arm by
the three boys and pulled away from the trampoline and despite
struggling to get away she was taken
to the squash courts with her
hands behind her back and a hand over her mouth. The court below also
took into account the sensory
neglect Miss L had endured over her
formative years and that she was thus extremely sensitive to touch.
[17]
The court below, understandably, admitted the evidence of the reports
by Miss L to others, supported by the objective evidence
and the
evidence of others, thus avoiding the trauma for Miss L of reliving
her ordeal in court.
[18]
Mrs L testified about how Miss L, upon her return to Bulgaria after
her ordeal, showed a marked change. She became afraid of
teenage boys
and there was regression in her development. She demonstrated an
aversion to playing outside and her home education
program suffered a
setback. It is quite clear on the evidence adduced that Miss L
was set back by a year in her cognitive
and emotional development
because of the brutal attack on her.
[19]
It is also apparent that as a result of the attack on her Miss L
suffered from Post- Traumatic Stress Disorder (PTSD) for an
extended
period of three years. At the time of and following upon the attack
on her, Miss L suffered acute shock and stress. Thereafter
she
re-experienced the traumatic event in the form of recurring intrusive
nightmares or intense emotional or psychological reactions
to
reminders of the event. She withdrew socially and had difficulty
concentrating. She had difficulty sleeping, showed poor tolerance
of
stress and was hyper-vigilant. Miss L regressed in her language
skills and soiled herself for a while. She was generally anxious
and
reluctant to separate from her parents. By the time of the trial in
the court below, approximately seven years after the incident,
she
still had residual symptoms of PTSD. She still displayed distressing
symptoms and still occasionally suffered nightmares and
continued to
experience problems in concentration. She had, however, recovered a
degree of confidence and was once again making
headway with an
assertion of independence. Simply put, she is on the mend, which is a
tribute to her fortitude and demonstrates
a triumph of the human
spirit.
[20]
The judgment of the court below is reported
sub
nom
Bridgman
NO v Witzenberg Municipality (J L & another intervening)
2017
(3) SA 435
(WCC). It is 66 pages long and comprises 226 paragraphs.
For present purposes, I will refer succinctly to the material parts.
[21]
The court below held the Municipality liable for the damages
sustained by Miss L. It rejected the claim for an indemnification
or
a contribution by Mr and Mrs L. The following order was made:
‘
The Municipality shall pay
damages to the plaintiff in the amount of R780 780, together
with interest thereon from date of
judgment;
The Municipality shall also pay
plaintiff’s costs of suit, including the costs of the rule
21(4) application which stood over
for later determination; such
costs to include the costs incurred in the employment of two counsel.
The Municipality shall also pay the
third parties’ costs of suit.’
An
application for leave to appeal against the merits was refused by the
court below. It did, however, grant leave in relation to
the amount
of damages awarded to Miss L. An application for leave to appeal
against the decision of the court below on the merits,
in terms of s
17(2)
(b)
of the Act, was made to this court. That was refused. The
Municipality then applied in terms of s 17(2)
(f)
for a reconsideration of that decision, which was referred to this
court for hearing. It is that referral and the appeal against
the
amount of damages awarded to Miss L that are presently before us. It
is to a consideration of those two matters that I now
turn.
[22]
Right at the outset of his judgment, Donen AJ recorded that it was
the duty of the State to address the conditions that enable
and
continue to underlie gender-based violence. He referred to the
constitutional rights to dignity and equality and to International
Law. He also had regard to the United Nation’s Convention on
the Rights of People with Disabilities. In para 4 of the judgment,
after recording that Miss L was raped on 20 January 2009 at the
resort, which was owned, managed and controlled by the Municipality,
part of the State and therefore bound to respect and promote Miss L’s
constitutional rights, he held as follows in relation
to
wrongfulness:
‘
Because
of its constitutional duties, and because it owned, managed and
controlled the resort in the circumstances described further
below,
the failure on the part of the Municipality to prevent the rape was
unlawful.’
[1]
[23]
Donen AJ then went on to consider whether the Municipality owed Miss
L a legal duty to have taken certain steps which would
have prevented
the attack on her and whether it negligently failed to do so. The
court below had regard to the well-known test
for negligence,
formulated in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430:
‘
(a)
a
diligens paterfamilias
in the position of the defendant –
(i)
would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss;
and
(ii)
would take reasonable steps to
guard against such occurrences; and
(b)
the
defendant failed to take such steps.
This
had been constantly stated by this Court for some 50 years.
Requirement
(a)
(ii)
is sometimes overlooked. Whether a
diligens
paterfamilias
in the
position of the person concerned would take any guarding steps at all
and, if so, what steps would be reasonable, must always
depend upon
the particular circumstances of each case.’
[24]
In essence, the court held that if there had been four guards in
total with two guards doing hourly patrols and if the rest
of the
staff at the resort had been in place and if there had been proper
access controls in relation to the squash court and more
visible and
pronounced access control, the opportunity for wrong-doing would have
diminished and it was more likely than not that
the rape would not
have occurred. It had occurred because of the failure of the
Municipality to take the steps outlined above.
Moreover, in light of
previous experiences, there ought to have been a greater awareness by
the security service and the employees
of the possibility of criminal
conduct. Harm eventuating, in the absence of these measures, would
have been foreseeable, particularly
in the light of prior criminal
conduct experienced at the resort coupled with municipal officials
expressing concerns that criminal
behaviour of a kind eclipsing those
hitherto perpetrated might materialise. The court below concluded
that the Municipality was
negligent and liable to Miss L for the
damages sustained by her.
[25]
The submission on behalf of the Municipality, in relation to
negligence, that harm specifically in the form of a rape could
not
have been foreseen by it, is misconceived. The precise nature of the
harm need not be foreseen. The general nature of serious
criminal
conduct with attendant consequences is what ought to have been
foreseen. In the present circumstances it ought to have
been
foreseen.
[2]
[26]
It was submitted on behalf of the Municipality that in holding that
it was negligent, the court below placed too great an emphasis
on the
fact that it was part of the State. This submission, too, is
fallacious. Even if one were to have considered whether liability
based on negligence should attach to a private resort owner against
the circumstances set out in paras 10-13 above, the same result
would
have ensued, namely, that the resort owner would have been held to be
negligent. That conclusion becomes even more compelling
if regard is
had to the Municipality as part of the State. It was accepted on
behalf of the Municipality that this factor is one
to be taken into
account. An organ of state is expected to ‘take reasonable
measures to advance the realisation of the rights
in the Bill of
Rights’ and the availability of resources is an important
factor when determining what steps were available
to the organ of
state and whether reasonable steps were in fact taken. It is
therefore necessary for the organ of state to present
information to
the court so that it can assess the reasonableness of the conduct in
proper context.
[3]
As stated
above, no reliance was placed by the Municipality on budgetary
constraints.
[27]
It was contended on behalf of the Municipality, in relation to
wrongfulness, that holding it liable would result in limitless
liability and would place an intolerable burden on local authorities.
In the circumstances outlined above and considering constitutional
norms, that contention is entirely without substance.
[28]
The court below also held that no fault could be attributed to Miss
L’s adoptive parents in allowing her to play on her
own in the
play area in the resort. In this regard the court below, inter alia,
considered her right to freedom of movement, her
right to dignity
which includes her right to assert her independence and the rights of
disabled persons, recognised in international
conventions. I find the
attitude of the Municipality in this regard both baffling and
disturbing. As stated in para 13 above, it
gave comfort to residents
that the Municipality was serious about security at the resort and
that security staff would pay attention
to patrolling the area. In
running the resort, the Municipality bore a duty to take appropriate
steps to safeguard to the best
of its ability the safety of visitors
and residents. This it did not do. In the circumstances referred to,
it was adding insult
to injury to attempt to land Mr and Mrs L with
liability.
[29]
In light of the findings set out above it follows that our colleagues
who considered the application for leave to appeal in
terms of s
17(2)
(b)
of the Act cannot be faulted for their conclusion that, on the
merits, there were no reasonable prospects that another court would
come to a different conclusion. The application for reconsideration
therefore must fail.
[30]
I turn now to deal with the appeal in relation to the quantum of
damages, principally in relation to the question of whether
the
amount of R750 000 awarded for contumelia, shock, pain and
suffering and loss of amenities of life was excessive. The
court
below had regard to the evidence set out in paragraphs 9-15 above. It
considered it an aggravating factor that the Municipality
delayed in
admitting that the rape had occurred, raising the necessity of Miss L
having to testify in the face of a professional
warning that it would
be traumatic for her to do so.
[31]
The court below had regard to previous awards approximating the
circumstances of the present case. It had regard to
F
v Minister of S
afety
and
Security & another
2014 (6) SA 449
(WCC) in which a 13 year old girl was assaulted and
raped by a policemen after he had offered her a lift home in a police
vehicle.
She had, in addition, been otherwise severely physically
assaulted. As a result of the attack on her she suffered PTSD and
depression.
She had been awarded an amount of R300 000 for
contumelia and R200 000 for pain and suffering.
[32]
Donen AJ went on to refer to the unreported judgment in
Nogqala
v Minister of Safety and Security
ECG
Case Number: 676/2011, delivered on 18 June 2012, in which a 22 year
old woman was raped by a policeman in an office. She was
awarded R225
000 in respect of damages for contumelia and R150 0000 pain and
suffering. He also had regard to
M
v Minister of Safety and Security
2015 (2) SACR 28
(ECG) where a plaintiff, aged 25, was unlawfully
arrested and detained by two police officials, and assaulted and
raped by a police
officer whilst she was in detention. A court
awarded R425 000 in respect of contumelia in 2014. The court
below took into
account that the present day value of that award was
R451 765.
[33]
Before us it was contended on behalf of the Municipality that the
amount of R750 000, awarded globularly by the court
below was
excessive. This was all the more apparent, so it was submitted, if
one compares it to prior awards. It was pointed out
that during final
submissions in the court below, on behalf of the curator
ad
litem
the maximum sought on behalf of Miss L was a total of R600 000.
Before us counsel on behalf of the curator and Mr and
Mrs L admitted
that they were surprised when the amount awarded exceeded the amount
sought.
[34]
The trauma Miss L was subjected to, was horrific. She continues to
endure the consequences of the brutal attack on her. The
degree of
pain, suffering, anxiety and loss of confidence she experienced was
severe. Prior awards are useful but one will seldom,
if ever, find a
case on all fours with the one under consideration. However, the
amount awarded is rather high. This is all the
more so since it was
not sought. In the light of all the circumstances the amount sought,
namely, R600 000 appears to be fair
and just. That being said we
were concerned, in the event of a finding in favour of the
Municipality on this aspect, that the curator
should not be burdened
with an adverse costs order. Fortunately the Municipality was
prevailed upon, to consider, particularly
in light of their prior
conduct in the litigation to forego a costs order. The parties
ultimately agreed that there should be no
order as to costs in
respect of the appeal against the quantum of damages in the event of
a finding in favour of the Municipality.
A final aspect requires
brief attention. The submission concerning the costs of the therapy
sessions for Miss L’s adoptive
parents, namely that they should
not have been awarded since they were not litigants in their own
name, also falls to be rejected.
The therapy sessions will not only
benefit them but will ultimately have a beneficial impact on Miss L.
The total amount awarded
by the court below and the amount in the
substituted order set out hereafter, includes the cost of those
sessions.
[35]
The following order is made:
1 The application for a
reconsideration of the refusal of the application for leave to appeal
is dismissed with costs, including
the costs of two counsel where so
employed.
2 The appeal against the
quantum of the award of damages succeeds to the extent reflected in
the substituted order that appears
hereafter.
3 Paragraph 226.1 of the
order of the court below is set aside and substituted as follows:
‘
The
Municipality shall pay damages to the plaintiff in the sum of
R630 780, together with interest thereon from date of judgment.’
4 In respect of the
appeal against the quantum of damages no order is made as to costs.'
____________________
MS
NAVSA
JUDGE
OF APPEAL
APPEARANCES:
FOR
APPELLANT:
A De Villiers (with him L Wade)
Instructed by:
Regan Brown Inc, Cape
Town
Lovius Block Attorneys,
Bloemfontein
FOR
RESPONDENTS:
J B
Whitehead SC (with him S e Câmara)
Instructed by
Joubert van Vuuren Inc,
Ceres
Symington & De Kok
Inc, Bloemfontein
[1]
Bridgman NO v Witzenberg
Municipality (J L & another intervening)
2017
(3) SA 435
(WCC) at 440E-F.
[2]
See N Neethling and J M Potgieter
Law
of Delict
7 ed (2015) at
149;
Standard Chartered
Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994
(4) SA 747
(A) and the other authorities there cited. See also J R
Midgley ‘Delict’ 15
Lawsa
3 ed at 341 and the
authorities there cited.
[3]
See
Lawsa
fn 2 at 313.