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[2019] ZASCA 192
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R K and Others v Minister of Basic Education and Others (754/2018; 1051/2018) [2019] ZASCA 192; [2020] 1 All SA 651 (SCA); 2020 (2) SA 347 (SCA) (18 December 2019)
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Certain
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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 754/2018 and 1051/2018
In
the matter between:
R
K
FIRST
APPELLANT
M
K SECOND
APPELLANT
Y
K THIRD
APPELLANT
L
K FOURTH
APPELLANT
and
MINISTER
OF BASIC EDUCATION
FIRST
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL,
LIMPOPO
DEPARTMENT OF EDUCATION SECOND
RESPONDENT
PRINCIPAL
OF MAHLODUMELA LOWER
PRIMARY
SCHOOL THIRD
RESPONDENT
SCHOOL
GOVERNING BODY
MAHLODUMELA
LOWER PRIMARY
SCHOOL FOURTH
RESPONDENT
and
EQUAL
EDUCATION
AMICUS
CURIAE
Neutral
citation:
R
K
and Others v Minister of Basic Education and Others
(754/2018 and
1051/2018)
[2019] ZASCA 192
(18 December 2019)
Coram:
Navsa, Leach, Tshiqi, Wallis and Mbha JJA
Heard:
2 September 2019
Delivered:
18 December 2019
Summary:
Practice –
amicus curiae
– test as to who
should be admitted – application to be admitted as
amicus
dismissed.
Emotional
shock – principles relevant to such a claim – grief
associated with psychiatric lesion caused by emotional
shock
recoverable without necessity to develop the common law in line with
the spirit of the Constitution.
Constitutional
damages – when to be awarded – where claimants fully
compensated for loss sustained and public funds
better served
elsewhere – constitutional damages not awarded.
ORDER
On
appeal from:
Limpopo Division of the High Court, Polokwane
(Muller J sitting as court of first instance):
A The appeal
succeeds to the extent that the order of the court a quo is altered
as follows:
‘
1 The words
“the claim is dismissed” in para 1 of the order are
deleted and substituted by the following:
(a) In respect of
the claim for emotional shock and grief, the first and second
defendants are ordered to pay the following amounts,
jointly and
severally, the one paying the other to be absolved:
(i) R350 000
for Mrs K;
(ii) R350 000
for Mr K;
(iii) R200 000
for Ms Y K;
(iv) R200 000
for Mr L K;
(v) R100 000
for each of the minor children M, O and B K.
2 The words ‘Claim
A’ and ‘The claim for grief is dismissed’ are
deleted from para 2 of the order.
3 Paragraph 3.1 of
the order is deleted and substituted with the following:
‘
3.1 The claim
for future medical treatment in respect of the minors M, O and B K
succeeds. The first and second defendants are ordered
to pay for the
future treatment in respect of:
(a) M K, the amount
of R6 000.
(b) O K, the amount
of R6 000.
(c) B K, the amount
of R6 000.’
B The first and
second respondents are to pay the appellants’ costs of the
appeal, jointly and severally, the one paying the
other to be
absolved. Such costs are to include the disbursements incurred by two
counsel who appeared
pro bono
for the appellants in travelling
to and being accommodated in Bloemfontein in order to present this
appeal.’
JUDGMENT
Leach
JA (Navsa, Tshiqi, Wallis and Mbha JJA
concurring)
[1]
On 20 January 2014 S K (S), who was at the time just five years of
age, suffered the most appalling and undignified death when
he fell
into a pit latrine at his school in Limpopo, and drowned in its
sludge and filth. In due course the appellants, being S’s
parents and siblings, instituted action in the Limpopo Division of
the High Court claiming damages they alleged they had sustained
arising out of his death, including separate claims for emotional
shock and grief. Their claims succeeded in part but, in the main,
were dismissed. They appealed to this court with leave of the court a
quo.
[2]
I record at the outset that Equal Education, a registered non-profit
and public benefit organisation, also appeared as
amicus curiae
and supported certain of the appellant’s claims. The
application of Richard Spoor Inc (RSI), a firm of attorneys, to
intervene
as a further
amicus
was dismissed at the
commencement of the appeal. In dismissing that application, we
indicated that our reasons would be given in
our judgment in the
appeal. They are set out in the paragraphs below.
RSI’s
application to intervene
[3]
Rule 16 of the rules of this court, which are essentially the same as
Rule 10 of the rules of the Constitutional Court,
require a
party applying to be admitted as an
amicus
to briefly describe
its interest in the proceedings and the position it intends to adopt;
to set out the submissions it wishes to
advance and their relevance
to the proceedings; and its reasons for believing they would be
useful to the court and different of
those of the other parties. In
attempting to comply with this requirement, RSI explained that it is
the class representative in
a class action against a large South
African company, Tiger Brands, on behalf of the families of 86
children who were amongst more
than 200 persons known to have died in
an outbreak of listeriosis. That claim, like the present appeal, has
attracted nation-wide
attention. In both that matter and the present,
so RSI submitted, the common law needs to be developed in line with
the values
enshrined in our Constitution, so as to provide equitable
redress for close family members of children who are wrongfully
killed.
It averred that its submissions in this regard differed from
those of the other parties and that it would therefore be of
assistance
to this court.
[4]
Despite certain similarities to the present case, there were
insurmountable obstacles to admitting RSI as an
amicus
.
In
National
Treasury v Opposition to Urban Tolling Alliance
[1]
a political party, the Democratic Alliance, sought to intervene in
interdict proceeding brought by the respondents to prevent the
appellants implementing a tolling system on certain roads in Gauteng.
In refusing its application to be an
amicus
,
Moseneke DCJ stated the following:
‘
I do not
propose to revisit the ideal attributes of a party that seeks to be
admitted as a friend of the Court. It is sufficient
to observe that
an
amicus
must
make submissions that will be useful to the Court, and which differ
from those of the parties. In other words, the submissions
must be
directed at assisting the Court to arrive at a proper and just
outcome in a matter in which the friend of the Court does
not have a
direct or substantial interest as a party or litigant. This does
not mean an
amicus
may
not urge upon a court to reach a particular outcome. However, it may
do so only in the course of assisting a court to arrive
at a just
outcome
and
not to serve or bolster a sectarian or partisan interest against any
of the parties in litigation
.’
(Emphasis added.)
[2]
[5]
RSI’s application did not pass the threshold of this test for a
number of reasons. First, an
amicus
should be objective and
not seek to advance an interest of its own. That is not here the
case. Mr Spoor, who appeared on behalf
of RSI, informed us from the
bar that he and his firm were acting on a contingency basis in the
claim brought against Tiger Brands.
That being so, despite their
professed intention to be acting in the present matter solely in the
interest of developing the common
law, there can be no doubt that
they enjoyed a financial interest in attempting to persuade this
court that damages for a claim
thus far unrecognised in this country,
should be awarded. Should such a claim be established, the
beneficiaries of the class action
would probably receive a
substantially higher payment than would otherwise be the case, and
RSI’s contingency fee be concomitantly
increased. RSI thus also
had its own personal financial interest at stake. For that reason
alone, it would be inappropriate to
admit RSI as an
amicus
.
[6]
Furthermore, in the
National
Treasury
case,
the Constitutional Court refused to admit the Democratic Alliance as
amicus
as its ‘overall
partisan position is better suited to a litigant than a friend of the
court’.
[3]
This case is
even more extreme as RSI is indeed a litigant who seeks in another
action to have a different court uphold its argument
on an extension
of the common law. If this were to be allowed, and RSI admitted
as an
amicus
,
it would steal a march on its opposition, Tiger Brands, whose
contrary voice in that matter would not be heard. In this way it
could obtain a precedent, binding on the high court which hears its
matter, to the obvious prejudice of its opposition. This is
both
opportunistic and unfair, and for policy reasons should not be
allowed. It is inappropriate to allow RSI to advance its own
litigious interest under the guise of being an
amicus
.
[7]
The submissions that RSI proposed advancing were in any event
unlikely to be of any assistance. As set out below, the appellants’
claim against the respondents in this matter is founded on aquilian
liability in which they seek to recover damages sustained by
reason
of the respondents’ negligence. RSI’s contention,
however, is essentially that the appellants have misconstrued
their
remedy and ought rather to have relied upon the
actio iniuriarum,
a claim based not on negligence but on a defendant’s
intention to injure. To that extent, RSI sought not to support the
appellants
but, rather, to make out a separate cause of action on
their behalf, a cause of action which has not been pleaded, in
respect of
which the necessary evidence was not led at the trial and
was thus not on record before this court on appeal. Accordingly RSI’s
submissions in that regard, albeit different from those of the
parties, would be of no assistance to this court to determine what
we
are bound to determine in respect of the pleaded claim and the
parties’ evidence. The argument in respect of the
actio
iniuriarum
is simply not an issue before us, and the question of
intent upon which it would have been founded was not explored in the
court
a quo.
[8]
Finally, but no less importantly, apart from suggesting that the
appellants ought to have sought to establish liability under
a
different remedy, RSI’s argument in regard to the policy
considerations motivating an extension of the common law and the
award of constitutional damages was essentially the same as counsel
for both the appellants and Equal Education intended presenting.
On
this aspect as well it was thus inappropriate to allow RSI to burden
us with argument that was superfluous. For these reasons
RSI’s
application for admission as
amicus
curiae
was
dismissed.
The
facts
[9]
I turn then to consider the background relevant to the issues raised
on appeal. S attended the Mahlodumela Lower Primary School,
in a
rural area of the Limpopo province. The toilets provided for learners
at the school were in an appalling and disgusting condition.
For
years complaints on behalf of the school had been addressed to the
provincial education authorities who had been requested
to improve
the pit latrines. There had been no response. Eventually, in an
attempt to attempt to overcome the problem, a local
handyman had been
employed some five years previously to construct and install an
elementary platform and seating structure over
the pits. But it had
not lasted well and due to corrosion, wear and tear, by January 2014
the toilets were in an abysmal condition.
[10]
Although the evidence established that it would have cost as little
as R500 per seat for structurally sound seats to have been
built, the
education authorities failed to do so. By October 2013, the
Mahlodumela Lower Primary School had been placed on a list
of schools
scheduled to receive sanitation infrastructure support.
Unfortunately, no work had taken place before the tragedy that
took
place several months later.
[11]
It seems that on 20 January 2014, when S went unattended to the
toilets to relieve himself, the seat collapsed and pitched
him into
the pit. When, later, he could not be found, enquiries were made to
his home to ascertain if he was there. His mother,
Mrs K, learning
that the school authorities were looking for him, rushed to the
school in panic. She was there when, eventually,
S’s body was
found in the pit below the toilet, the seat of which had collapsed.
He had drowned, and was lying in the filth
in the pit with hand
outstretched as if seeking help. The school staff would not let Mrs K
remove him, despite her belief that
he could still be saved. His body
was left in the pit for hours, covered in muck and human faeces
until, eventually, it was removed.
[12]
Understandably, the terrible circumstances of S’s death haunted
his parents. Mrs K testified how she had fainted upon
seeing S’s
body in the pit and that she thereafter experienced nightmares during
which she was haunted by his hand reaching
out towards her. A similar
nightmare haunted Mr K, who had arrived on the scene after his
wife and had sat near the body until
emergency services arrived and
removed it hours later. Both Mr and Mrs K were diagnosed with having
post-traumatic stress disorder,
and for years had difficulty in
sleeping and required psychological counselling.
[13]
S’s siblings were also affected by the circumstances of his
death. The relationship between S and Y K, the third appellant,
had
been close. She had taken on a parental role in relation to S and had
helped to bath him and prepare him for school. He slept
in her
bedroom. Y did not believe that S had died until she saw his body in
the pit. She, too, experienced trouble sleeping after
the tragedy and
had flashbacks to the moment she had seen him in the pit. She
exhibited extreme symptoms of post-traumatic stress
disorder, similar
to her mother’s.
[14]
L K, S’s adult brother and the fourth appellant, also shared a
close relationship with S. On hearing of his death, he
tried to get
to the toilet to see what had happened but the police stopped him
from doing so. He, too, displayed symptoms related
to post-traumatic
stress disorder and bereavement. When seen by a psychologist almost
two years later, he was still very sad and
was struggling to cope,
having difficulty both with his concentration and in sleeping.
Similar difficulties were experienced by
the other children, O, M and
B K.
The
claims
[15]
Bearing the above facts and circumstances in mind, I turn to the
appellants’ claims. Mrs and Mr K were cited, respectively,
as
first and second plaintiffs. They sued in their personal capacities
as well as in their capacities as parents and natural guardians
of
their three minor children, M, O and B. The third and fourth
plaintiffs are two major children of the first and second plaintiffs.
The Minister of Basic Education, the MEC, Limpopo Department of
Education, the principal of S’s school and the school’s
governing body were cited as first to fourth defendants,
respectively. The principal and the governing body, however, appear
to
have been parties in name only, and at the conclusion of the trial
no order was made against them. I also did not understand them
to
have been actively interested in this appeal. This judgment will
therefore regard them as not being parties and I shall refer
to the
Minister and the MEC as being the respondents.
[16]
The claims of the plaintiffs are somewhat tortuously framed in their
particulars of claim. Lengthy averments were made in regard
to
negligence and the breach of duties owed to S (including allegations
of events occurring after his death). It was then alleged
that S died
as a result of such negligence and the breach of these duties. In
para 26 of the claim, it was alleged that, as consequence
of his
death, the appellants had suffered ‘grief, emotional trauma and
shock and damages at common law developed in accordance
with s 39(2)
of the Constitution’. At para 28, the appellants went on to
also allege that they had suffered ‘post-traumatic
stress
disorder and bereavement’ and that in addition, the first and
second appellants (namely S’s parents) had suffered
a
‘depressive disorder’. Whether the consequences alleged
in para 26 were the same as those in para 28 is unclear.
[17]
Be that as it may, the particulars of claim went on to set out a
number of separate claims:
(a) In Claim A it
was alleged the appellants had suffered various amounts of damages as
a result of the ‘emotional trauma
and shock’ they had
experienced (whether this was due to the facts particularised in para
26 or para 28 was not stated).
(b) In Claim B they
claimed, not individually but cumulatively and ‘as the
immediate family’, the amount of R2 million
in respect of grief
as compensation ‘based on the common law as developed in
accordance with s 39(2) of the Constitution’.
Alternatively, it
was alleged that on the basis articulated in para 26, they were
entitled to that sum as constitutional damages
‘in accordance
with the development of the common law under s 39(2) of the
Constitution’.
(c) Claim C was a
claim in respect of future medical expenses to be incurred to treat
the appellants’ impaired medical health
resulting from the
shock and trauma they had suffered due to S’s death.
Essentially these related to the cost of counselling
sessions.
(d) In Claim D, the
sum of R34 105,80 was claimed in respect of S’s funeral
costs.
(e) In Claim E the
first appellant claimed loss of earnings as a result of the trauma
she had suffered arising from S’s death.
(f) Finally, but
without explaining the necessity for such an order, the plaintiffs
sought a declaratory order to the effect that
the respondents had
breached their constitutional obligations in respect of the rights
contained in various sections of the Constitution.
[18]
At a pre-trial conference, the respondents admitted that the first
and second appellants and their minor children had ‘suffered
emotional trauma and shock’ as a result of S’s death.
Then, in a joint minute of the clinical psychologists who were
to be
called as experts, it was recorded that the appellants had suffered
severe trauma and required further psychotherapy. Further,
on
11 October 2017, the respondents made a without prejudice offer
to settle, in which they stated that they conceded the
‘merits
in respect of the delictual claim’.
[19]
The offer of settlement was not accepted, and so the matter went to
trial. On the first day of the hearing the respondents’
concession of the merits was repeated. They accepted that negligence
on their part had led to S’s death, that the merits
of Claim A
were no longer in dispute and that, in respect of that claim, only
the quantum of damages needed to be proved. In the
light of this
concession and the circumstances surrounding S’s death, if ever
a case called out for settlement it was this
one. For some reason,
however, the respondents did not settle and the trial proceeded,
undoubtedly at huge cost to the State. This
really ought to have been
avoided and the funds better employed in national interest eg by
improving sanitation systems at rural
schools.
[20]
Be that as it may, at the end of the day, despite the
respondents’ concession relating to the merits and the
subsequent
evidence of both the plaintiffs and an expert psychologist
relating to their emotional suffering, it is somewhat startling to
say
the least that the court a quo dismissed Claim A for emotional
trauma and shock. It also dismissed the claim for grief in Claim
B
but, on the alternative in Claim B (ie the claim for constitutional
damages), also somewhat startlingly as it was relief that
had not
been asked for, it issued a structural interdict in the following
terms:
‘
2.1
Alternative to Claim B
2.2 The first and
second respondents are ordered to supply and install at each rural
school currently equipped with pit latrines
in the Province of
Limpopo with:
2.2.1 a sufficient
number of toilets for each school for the use of children which are
easily accessible, secure and safe and which
provide privacy and
promote health and hygiene based on an assessment of the most
suitable safe and hygienic sanitation technology.
2.3 The first and
second respondents, are ordered to furnish this court with the
following information:
2.3.1 a list
containing the names and location of all the schools in rural areas
with pit toilets for use by the learners;
2.3.2 the estimated
period required to replace all the current pit toilets at schools so
identified.
2.3.3 a detailed
program developed by the relevant experts based for the installation
of the toilets on an assessment made in respect
of the suitable
sanitation technology requirements of each school inclusive of a
proposed date (and reasons for the proposed date)
for the
commencement of the work referred to
supra
.
2.4 The first and
second defendants shall, for the order to be implemented deliver
detailed reports under cover of affidavits at
this court which must
inter alia
comprehensively deal with all the issues referred
to above on or before 30 July 2018.
2.5 The plaintiffs
are at liberty to deliver an answering affidavit within 20 days of
the reports being delivered. And if so, the
defendants will have the
rights to reply, if necessary within 15 days. Both parties may
thereafter place the matter on the opposed
roll for hearing (and for
further directives, if necessary) on a date to be arranged with the
trial Judge.’
[21]
In respect of Claim C, the claim for future medical expenses, the
merits of which had also been conceded at the commencement
of the
trial, an order by agreement was made in respect of the first,
second, third and fourth plaintiffs during the course of
the trial.
In respect of two of the younger siblings, M and O, the court in its
judgment made an order based on a finding that
they were entitled to
receive six sessions of psychotherapy to help them deal with the
severe trauma they had suffered. However,
no allowance was made for
psychotherapy for the youngest child, B, due to no specific claim for
this having been made. In respect
of Claims D and E, the parties
reached agreement and a separate order in their regard was made
before the end of the trial. However,
the declaratory order sought by
the appellants was refused.
[22]
The appellants proceeded to apply for leave to appeal against the
dismissal of their prayer for a declaratory order relating
to the
defendants breach of constitutional obligations. They also sought
leave to appeal against the dismissal of Claim A, as well
as the
dismissal of the claim for grief in Claim B, but not against the
award of the structural interdict granted in the alternative
to the
latter claim. They also sought leave to appeal against the refusal of
future medical expenses for B. The court a quo granted
such leave in
respect of the grief claim in Claim B but refused leave in the other
respects. This court, however, granted such
leave.
[23]
Due to the manner in which the claims were pleaded, I intend to deal
at the outset with Claims A and B. For the reasons set
out below,
these are substantially intertwined, both with each other and with
the alleged need to develop the common law so as
to entitle the
appellants to recover damages for the grief they have suffered
arising out of S’s death.
Claims
A and B
[24]
In common law countries, claims for so-called nervous or emotional
shock have historically been treated with a good measure
of suspicion
and wariness. Underlying considerations appear to have been, inter
alia, that the shock experienced by witnesses to
gruesome events is
one of the many vicissitudes of life which people have to face and
live up to, and should therefore not be regarded
as actionable, and
that to recognise shock as actionable might open the floodgates of
litigation. Thus in
Bourhill
v Young
[4]
Lord Porter said ‘the driver of a car or vehicle, even though
careless, is entitled to assume that the ordinary frequenter
of the
streets has sufficient fortitude to endure such incidents as may from
time to time be expected to occur in them, including
. . . the sight
of injury to others, and is not to be considered negligent towards
one who does not possess the customary phlegm’.
[5]
[25]
However, for many years now, such a claim has been recognised in this
country where the claimant shows that the nervous shock
is associated
with a detectable psychiatric injury. Thus, in
Bester
v Commercial Union
[6]
this court, seemingly influenced to an extent by developments in
England,
[7]
held a psychological
or psychiatric injury to constitute a ‘bodily injury’ for
the purposes of delictual liability,
and that there was no reason in
our law why a claimant who suffered such an injury as the result of
the negligent act of another
should not be entitled to receive
compensation.
[26]
In
Barnard
v Santam
,
[8]
this court subsequently confirmed the existence of a remedy where a
plaintiff sustained ‘nervous shock’, although Van
Heerden
ACJ pointed out that the term was outmoded and misleading as the only
question should be whether the plaintiff sustained
a detectable
psychiatric injury.
Significantly
Van Heerden ACJ declined to follow the restrictions applicable in the
United Kingdom as laid down in cases such as
McLoughlin
and
Alcock
,
referred to below, that such a claim was not available to a person
who suffered psychiatric injury in consequence of a report
of harm to
a near relative (in that case a mother being told of her son’s
death in a motor accident). Such a ‘hearsay’
claimant is
entitled to recover damages for psychiatric injury whether they are
in proximity to, or come upon, the victim of the
accident or are told
about it later. The test for liability is far more dependent upon the
relationship between the claimant and
the victim.
[27]
The
same approach was followed by this court in
Road
Accident Fund v Sauls
.
[9]
In that matter a plaintiff witnessed his fiancé being struck
by a motor vehicle in his near vicinity. She thought he had
been
killed or seriously injured (fortunately neither was the case) and
was left in a condition of shock and confusion. She was
subsequently
diagnosed with a post-traumatic stress disorder which became chronic
and unlikely to improve. As was summed up in
this court, ‘her
case is that as a consequence of her witnessing the injury to [her
fiancé] she suffered severe emotional
shock and trauma which
gave rise to a recognised and detectable psychiatric injury . . .’.
In holding the defendant liable,
Olivier JA explained:
[10]
‘
It must be
accepted that in order to be successful a plaintiff in the
respondent's position must prove, not mere nervous shock or
trauma,
but that she or he had sustained a detectable psychiatric
injury. That this must be so is, in my view, a necessary
and
reasonable limitation to a plaintiff's claim . . . I can find no
general, “public policy” limitation to the
claim of
a plaintiff, other than a correct and careful application of the
well-known requirements of delictual liability and of
the
onus
of proof.’
[28]
The law in England was more inflexible than ours. Following the
decision in
Bourhill
,
not much changed in the United Kingdom for some 40 years until the
decision in
McLoughlin
v O’Brian
[1983]
1 AC. In that matter, whilst Lord Wilberforce observed that the law
still denied the claim of an ordinary bystander to an
incident
‘either on the basis that such persons must be assumed to be
possessed of fortitude sufficient to enable them to
endure the
calamities of modern life, or that defendants cannot be expected to
compensate the world at large’,
[11]
he went on recognise the claim of a wife for damages for shock. She
had suffered a severe psychiatric illness as a result of learning
of
her daughter’s death and being exposed to the distressing
sights and sounds of her husband and children when she went
to the
hospital to which they had been taken after having been grievously
injured in a motor accident. The court held that such
a claim could
be allowed, subject to policy restrictions as to the class of persons
whose claims should be recognised, the proximity
of such persons to
the accident, and the means by which the psychiatric illness was
caused (sometimes referred to as relationship,
spatial and sensory
policy restrictions).
[12]
[29]
Since then, claims for what has commonly, albeit incorrectly, come to
be called nervous or emotional shock have been allowed
in England,
where it can be said that the shock gave rise to a psychiatric
injury. Thus, in
Alcock
v Chief Constable
[13]
although a claim for nervous shock was disallowed, essentially on the
basis that the damages were too remote, Lord Oliver stated:
‘
There is . .
. nothing unusual or peculiar in a recognition by the law that
compensatable injury may be caused just as much by direct
assault
upon the mind or the nervous system as by direct physical contact
with the body. This is no more than the natural and inevitable
result
of the growing appreciation by modern medical science of recognisable
causable connections between shock to the nervous
system and physical
or psychiatric illness. Cases in which damages are claimed for
directly inflicted injuries of this nature .
. . are not, in their
essential elements, any different from cases where the damages
claimed arise from direct physical injury
. . . .’
As
appears from these cases as well as the decisions, inter alia, in
White
& others v Chief Constable of Yorkshire & others
[14]
and
Vernon
v Bosley (1)
[15]
in English law damages are now recoverable for nervous shock or
pathological grief disorder (ie grief which became so severe as
to be
regarded as abnormal and giving rise to psychiatric illness), if
certain preconditions for recovery are satisfied.
[30]
The development of the law on this issue in England was, to a large
extent, mirrored in Australia, New Zealand and Canada.
In all three
of those jurisdictions, damages for ‘nervous shock’ are
now recoverable where the claimant suffers either
a physical
consequence or some medically identifiable psychiatric illness or
injury.
[16]
In
Tame’s
case in Australia,
however, the court the court stressed that many of the concerns
relating to the recovery of psychiatric injury
receded if full force
was given to the distinction between emotional distress, on the one
hand, and recognisable psychiatric illness,
on the other. Doing so
reduced the scope for indeterminate liability or increased
litigation, and restricted recovery to disorders
capable of objective
determination. As the learned authors of
Fleming’s
Law of Torts
put
it, the court ‘repudiated’ the earlier policy limitations
‘and held that liability was based on reasonable
foreseeability
unfettered by other restrictions’.
[17]
[31]
It is clear from this that our law is closely aligned to that which
prevails in Australia, and is more flexible than that of
England
which is bound by certain policy limitations. However, in all three
of these jurisdictions, as well as those of Canada
and New Zealand, a
plaintiff can only claim damages for so-called nervous or emotional
shock where it is suffered as a consequence
or cause of a detectable
psychiatric injury.
Gleeson CJ summarised the
position succinctly in the following terms:
‘
.
. . save in exceptional circumstances, a person is not liable in
negligence, for being a cause of distress, alarm, fear, anxiety,
annoyance or despondency, without any resulting recognised
psychiatric illness.’ (
Tame
v New South Wales
para
7.)
To similar effect in
Van Soest v Residual Health Management Unit
para 28 it was
said:
‘
The
common law gives no damages for the emotional distress which any
normal person experiences when someone he loves is killed or
injured.
Anxiety and depression are normal human emotions. Yet an anxiety
neurosis or a reactive depression may be recognisable
psychiatric
illnesses, with or without psychosomatic symptoms. So, the first
hurdle which a plaintiff claiming damages of the kind
in question
must surmount is to establish that he is suffering, not merely grief,
distress or any other normal emotion, but a positive
psychiatric
illness.’
[32]
Accordingly, there is no difficulty in recognising in principle the
legal basis of the appellant’s Claim A, which as
I understand
the pleading, is a claim for emotional shock attributable to a
psychiatric lesion caused by the circumstances of S’s
death. It
is a claim long recognised in this country and supported by the other
common law jurisdictions I have mentioned. I shall
return to whether
given the facts of this case, liability in respect of that claim was
established.
[33]
But before doing so, it is necessary to deal with the validity in law
of a claim brought under a separate heading for grief
or bereavement,
allegedly suffered as a result of negligence but which does not flow
from a psychiatric lesion (which, as I understand
the particulars of
claim, constitutes Claim B.)
[34]
In that regard, none of the jurisdictions I have mentioned have ever
recognised such a claim at common law. For example in
England, in his
speech in
Alcock
,
Lord Ackner said ‘major mental suffering, although reasonable
foreseeable, if unaccompanied by physical injury, is not a
base for a
claim for damages’.
[18]
And in his speech in the same case, Lord Oliver explained the reason
for this refusal as follows:
[19]
‘
Grief,
sorrow, depravation and the necessity for caring for loved ones who
have suffered injury or misfortune must, I think, be
considered as
ordinarily and inevitable incidents of life which, regardless of
individual susceptibilities, must be sustained without
compensation.
. . . but to extend liability to cover injury in such cases would be
to extend the law in a direction for which there
is no pressing
policy need and in which there is no logical stopping point.’
Similarly,
in his speech in
White v Chief Constable
, Lord Griffiths said:
‘
Bereavement
and grief are a part of the common condition of mankind which we will
all endure at some time in our lives. It can be
an appalling
experience but it is different in kind from psychiatric illness and
the law has never recognized it as a head of damage.
We are human and
we must accept as a part of the price of our humanity the suffering
of bereavement for which no sum of money can
provide solace or
comfort.’
[35]
This, too, has been the approach in this country. More than a century
ago, in
Waring
and Gillow Ltd v Sherborne
,
[20]
Innes CJ held there was no authority in our law for awarding damages
‘for mental suffering unaccompanied by physical injury
or
illness in an action founded on negligence’. That conclusion
was reinforced by this court in
Union
Government (Minister of Railways and Harbours) v Warneke
1911
AD 658.
[21]
As De Villiers JP
stated in his judgment in that case, after referring to an ancient
Scottish decision:
‘
. . . the
Scotch Court of Session held that a husband was entitled to recover
for injury and loss by the sudden and violent death
of his wife in
his feelings, comfort and domestic happiness, but the report is not
very satisfactory. . . I have looked in vain
. . . for the reasons
for extending the law so far.
Voet
(l. c.) recognises
that damages for
dolor
.
. . can be obtained by a freeman for an injury to himself, but there
is no authority for extending this to injury to his feelings
through
the death of another. It may be desirable that a husband should be
able to recover damages as a
solatium
for his wounded
feelings and for loss of comfort and domestic happiness, but that is
an extension of the law which must be made
by the Legislature.’
[36]
In England, albeit to a limited extent, the legislature indeed came
to the assistance of certain close relatives who were given
a
statutory right by the Administration of Justice Act 1982, s 3
thereof having inserted a new section into the Fatal Accidents
Act
1976, so as to found an action to claim damages for bereavement.
[22]
It was pursuant to this that in
Kerby
v Redbridge
,
[23]
the court said:
‘
Mr Coghlan .
. . reminds me that the common law, rightly or wrongly, affords no
right to damages for what are described as “the
normal emotions
by way of grief, sorrow or distress attendant on the loss of a loved
one”. . . . The only entitlement lies
in statute . . . by way
of damages for bereavement.’
[24]
[37]
Similarly, in both Australia and Canada, where claims for grief are
also not recognised without proof of psychiatric injury,
certain
relief has been extended by way of statute.
[25]
However, in this country, despite the lapse of more than a century
and the invitation in
Union
Government v Warneke
,
no such statutory extension has been made and the position remains
unchanged.
[26]
This is
presumably for reasons similar to those articulated by Lord Oliver as
quoted above, and the perceived fear of opening the
floodgates to
claims for grief without any associated psychiatric injury.
[38]
It was argued on behalf of the appellants, however, that our law had
relaxed even further and that this latter requirement
was no longer
valid. The argument in this regard was based upon the judgement of
this court in
Mbhele
v MEC for Health for the Gauteng Province
.
[27]
In that matter, due to negligence on the part of certain hospital
authorities, the appellant’s child was stillborn. She
instituted action for damages in the high court. The matter was
decided on a stated case under Uniform rule 33. The court of first
instance held that the appellant had abandoned her claim for
emotional shock and her claim was dismissed. This court, on appeal,
found that the high court had erred in finding that the appellant’s
claim for emotional shock had been abandoned and proceeded
to
consider whether it had been proved. It held that it had, and awarded
the appellant R100 000 as damages, saying that there
could be no
doubt ‘that the appellant experienced severe shock, grief and
depression’. It did so without specific agreement
as to the
existence of a psychiatric lesion having been set out in the stated
case.
[39]
On the strength of this, it was argued that this court had been
prepared to allow damages for grief without proof of there
having
been a psychiatric injury to the appellant. It was unfortunate that
the trial court had attempted to decide the matter on
a stated case
without all the necessary facts being fully and clearly set out, as
was indeed observed by this court in its judgment.
However, the
stated case did record that the appellant had suffered from
depression, in itself a mental illness, and it was further
held that
the appellant had suffered from emotional shock justifying damages
which, too, by its very nature, implies a psychiatric
lesion. At
first blush, then, there was sufficient factual material to show that
this was a case in which psychiatric harm had
been suffered. But even
more importantly, no reference was made to any of the authorities
which have previously prescribed that
grief, without an underlying
psychiatric lesion associated therewith, cannot be the subject of a
damages claim. Without those cases
and the ratio of their decisions
having been debated and adjudicated, it cannot be said that they have
been overruled by a simple
passing comment relating to grief. The
decision in
Mhbele
is therefore no authority for the
proposition that our law has changed and that this court has
recognised a claim for grief where
there is no psychiatric lesion.
[40]
Recognising this difficulty, counsel both for the appellants and for
the
amicus
argued that the common law should be developed
having regard to the spirit, purport and objects of the Constitution
to either recognise
a claim for grief and bereavement experienced as
a result of S’s death without there being an underlying
psychiatric lesion,
or to allow an award to the appellants for
so-called ‘constitutional damages’ flowing from their
grief and bereavement.
[41]
In considering these arguments, it is important to remember that s 39
of the Constitution prescribes that when it becomes necessary
to
develop the law, it should be done in the light of the ethos of the
Constitution. However, courts should not attempt to develop
the
common law under the aegis of the Constitution unless it is necessary
to do so, and that the major engine for law reform should
be the
legislature rather than the courts – see
Carmichele
v Minister of Safety and Security
.
[28]
As the Constitutional Court further stated in
Fose
v Minister of Safety and Security
,
[29]
our common law of delict is flexible and will in many cases be broad
enough to provide all the relief that would be appropriate
for a
breach of the constitutional right, depending of course on the
circumstances of each particular case.
[30]
[42]
Accordingly, the starting point for the enquiry in regard to both
issues, namely, the development of the common law and the
claim for
constitutional damages, is to consider whether the common law
provides an adequate or appropriate remedy for the breach
complained
of in the present case
.
[31]
As was explained by the Constitutional Court in
Mighty
Solutions
[32]
,
the steps to be taken before developing the common law are as
follows:
‘
Before
a court proceeds to develop the common law, it must (a) determine
exactly what the common law position is; (b) then consider
the
underlying reasons for it; and (c) enquire whether the rule offends
the spirit, purport and object of the Bill of Rights and
thus
requires development. Furthermore, it must (d) consider
precisely how the common law could be amended; and (e) take
into
account the wider consequences of the proposed change on that area of
law.’
[43]
I must immediately record that the arguments before us
did
not address the question in accordance with this taxonomy, especially
in explaining in what way the current state of the law
offended
against the spirit, purport and object of the Bill of Rights or the
terms of any amendment and the wider implications
eg the effect on
the Road Accident Fund, which we understand is currently in
straitened financial circumstances.
[33]
[44]
In any event, as interesting as the arguments may have been, on the
facts of this matter neither issue is ripe for decision
as the case
can be decided on the common law principles set out above.
[45]
At the outset, the fallacy in the appellants’ argument that the
common law needs to be developed, is that in the light
of the facts
in the present case no such development is required for their grief,
feelings of bereavement and loss to be taken
into account in the
assessment of their damages. As pleaded as part of the background in
the particulars of claim, it is alleged
that as a result of the
respondents’ negligence, the appellants had suffered from
post-traumatic stress disorder whilst the
first and second appellants
had also suffered a depressive disorder. At a pre-trial conference
held on 11 August 2017 the
respondents admitted that the
plaintiffs and their minor children had suffered ‘emotional
trauma and shock’ as a result
of S’s death.
[34]
In doing so, and in conceding delictual liability as already
discussed, the respondents clearly envisaged such emotional shock
and
trauma to embrace the psychiatric injuries suffered by the appellants
ie their post-traumatic stress and depressive disorder.
After all, as
I’ve described in detail above, liability could only follow if
there was a psychiatric lesion. Indeed in their
heads of argument
they rely upon the definition of ‘emotional shock’ (the
claim in respect of which they conceded)
described in
Jaensch
v Coffey
[35]
as ‘. . . the sudden sensory perception that is by seeing,
hearing or touching of a person, thing or event which is so
distressing
that the perception of the phenomenon affronts or insults
the Plaintiff’s mind and causes a recognizable psychiatric
illness’.
[46]
Furthermore, at the outset of the hearing, when their counsel
informed the court a quo ‘the defendants have conceded
liability in respect of Claim A’ he stated that the claim for
grief ‘is not really dependent on . . . the development
of the
common law’. This is the clearest indication that the
concession of the ‘merits’ of the claim went beyond
a
mere concession of negligence on the respondents part and embraced
the psychiatric injury that had resulted. Importantly in this
regard,
the respondent’s counsel also stated that the claim of R2
million for grief (ie Claim B) was ‘intertwined’
with
Claim A.
[47]
It is clear from all of this that the respondents admitted that S’s
death had caused each of the appellants to suffer
psychiatric injury
with which their extended period of grief and sense of bereavement
was associated. Once the respondents had
admitted this and conceded
liability in respect of the claim, there was no longer a lis in
respect of which the appellants bore
the onus of proof beyond
establishing the quantum of their damages. This they purported to do,
in part, by the expert evidence
led at the trial. In doing so, the
evidence further corroborated that which the respondents had
conceded. The psychologist, Mr Molepo,
explained that the
symptoms of depression and post-traumatic stress disorder, suffered
as a result of the emotional trauma the
appellants had undergone,
embraced the grief they had experienced. He explained that their
feelings of grief and bereavement were
psychological reactions to the
significant emotional trauma they had undergone due to the shock
caused by the circumstances surrounding
S’s death and
contributed to their psychiatric injuries.
[48]
The court a quo dismissed the appellants’ Claim A as it felt
that ‘due to the insufficiency of the expert evidence,
the
appellants had not suffered psychiatric lesions. In the light of what
I have said, it clearly erred and misdirected itself
in that regard.
The existence of the psychiatric lesions was not only common cause
but established by the evidence. The appellants
were therefore
entitled to claim and recover damages not for what might be called
‘normal’
[36]
or
emotional grief
[37]
but for a
pathological grief disorder forming part of their psychiatric injury.
Consequently, the common law does not need to be
developed any
further to provide them with redress. This conclusion renders it
unnecessary to decide whether the appellants would
have been entitled
to damages for grief had they not suffered the psychiatric injury
they did.
[49]
The complicating factor in this case is the manner in which the
damages were claimed. By reason of what I’ve said, the
damages
for grief should have been included in Claim A as part of the
psychiatric injury the shock of S’s death had caused
(and in
respect of which liability was conceded.) Instead they were claimed
in Claim B on the basis that to recover such damages
required
development of the common law (which as I’ve explained in the
present case, it does not.) So what is to be done
about this?
[50]
It would be extremely unfair to disregard the symptoms of grief and
bereavement which the appellants have suffered because
of the manner
in which their claim was pleaded. This counsel for the respondents
conceded. He also conceded that in assessing liability
for damages
under Claim A, regard should be had to the appellants’ extended
period of grief; and that what was allowable
in respect that claim
should not be limited in financial terms to the amounts claimed in
the particulars of claim. This was consistent
with his statement at
the outset of the trial that the claim for grief was intertwined with
Claim A, and would seem to be a practical
and sensible solution.
The
result is that the appeal against the dismissal of claim A must
succeed; and to the extent that the appellants are entitled
to
damages for grief and bereavement, account must be taken of this in
assessing the proper quantum of damages under that head.
The appeal
against the dismissal of claim B fails because the recoverable
damages described therein are to be compensated under
Claim A.
[51]
In the light of this, I turn to consider the quantum of the damages
suffered by the appellants in respect of the claim for
emotional
trauma and shock, which will include allowance for their grief and
bereavement. In in doing so, I have had regard not
only to the
evidence of the claimants who testified but also to the psychological
assessment reports prepared by the clinical psychologist,
Ms Sodi.
Although she did not testify, her reports were adopted and referred
to without demur by the psychologist who did testify,
Mr Molepo.
[52]
As appears from these reports and Mr Molepo’s evidence, all of
the claimants sustained emotional shock, which is understandable
given the circumstances under which poor S met his death. As already
mentioned, they all suffered from post-traumatic stress disorder,
bereavement and grief and, in addition the first and second
appellants suffered from depression. Common difficulties experienced
by all were fatigue, difficulty in sleeping, lack of concentration,
poor appetite, labile emotions, sadness and grief; and particularly
in the case of the first and second appellants, nightmares and
flashbacks of S lying in the pit with his hand outstretched. They
were also angry at the education authorities for failing to provide
meaningful assistance, particularly at S’s funeral. Ms
Sodi
opined some five months after S’s death that Mrs K was
suffering a major depressive disorder associated with grief.
Her
opinion in regard to Mr K was similar. The third and fourth
appellants she felt also was suffering from a stress disorder and
grief, as were the two minor children O and M, who were then 12 years
of age. The youngest of the family, B, who was eight years
of age,
was the least affected but that is understandable given the
well-known resilience of small children.
[53]
The family continued to experience these symptoms for several years,
albeit with diminishing severity. But although time is
a great
healer, when seen by Mr Molepo in April 2016, more than two years
after the tragedy, they were still suffering. Even the
youngest, B,
became tearful when the name of his late brother was mentioned. This
notwithstanding, their condition had improved
substantially and will
hopefully continue to do so. It was Mr Molepo’s opinion that
they would all benefit from further psycho-therapy.
[54]
A common theme running through the evidence of the claimants who
testified, was that their mental agony and grief had been
exacerbated
by the unfeeling attitude of the education authorities. Mr K was
prevented from removing S’s body from the pit,
with the
principal telling him that it was too late anyway. When he and
another took photographs of the scene, they were forced
to delete
them and were threatened with criminal charges. When Lucas tried to
see the body of his brother the police prevented
him from doing so.
The family complained that the first contact the school’s staff
had made with them after the tragic events
that took S’s life
was to ask if they could use his name on certain furniture that had
been donated to the school sometime
after his death, but failed at
the time to enquire as to how the family were coping. They also
expressed feelings of insult by
reason of the lack of support
extended to them from the provincial and national education
authorities. The offer of settlement
which they had received years
after the incident they regarded as an insult.
[55]
Importantly, the respondents’ attitude obliged the appellants
to come to court to obtain redress in proceedings which
have been
drawn out. Although, as I have already said, this was a case which
cried out for settlement, the appellants were obliged
to go to trial,
submit to the rigours of the hearing, and to re-live the trauma of
the past in excruciating detail. This included
being subjected to
unsympathetic and, at times, cruel and denigrating cross-examination.
All of this must have aggravated their
mental agony. The respondents’
attitude to the litigation, up to and including this appeal in which
in certain respects they
attempted to defend the indefensible, is to
be deprecated in the strongest possible terms. As a result, the
appellants have been
prevented from getting on with their lives and
recovering from their trauma.
[56]
Attempting to determine an adequate solatium for the appellants’
suffering is, of course, a daunting task as no monetary
compensation
can ever make up for their loss. Some guidance may be obtained by
having regard to awards in previous cases but comparisons
are always
odious, particularly as the facts in different cases already, if
ever, directly comparable. I have however had regard
to the award of
R100 000 in
Mbhele
’s case which, as I’ve
mentioned, flowed from the death of a child at birth, as well as the
various cases collected
in that judgment. In seeking guidance from
such previous awards, allowance must also be made for the effects of
inflation. At the
end of the day, court is called upon to exercise
the discretion to determine amount which it feels is fair and
reasonable to both
parties given the particular circumstances of the
case in question. Bearing all of this in mind, I am of the view that,
taking
into account the emotional shock, trauma and grief that has
been suffered, it would be reasonable in respect of Claim A to award
Mrs and Mr K each the sum of R350 000, Y and L K (respectively
the third and fourth appellants) each the sum of R200 000
and
the minor children O, M and B K each the sum of R100 000. This
will be reflected in the order set out below.
Constitutional
damages
[57]
It was argued on behalf of the appellants, that even if Claim A was
to succeed and include an allowance for grief, this court
should make
a further award of constitutional damages in respect of Claim B as
the constitutional rights of the appellants to a
peaceful family life
had been breached. This it was argued would vindicate the breach of
the appellants’ rights, and such
an award would bring home to
the authorities the necessity to provide adequately for children’s
sanitation at schools.
[58]
Constitutional damages have been awarded in the past in respect of
financial loss which would otherwise not have been recovered
at
common law. Thus in
Kate
[38]
where there had a serious delay in processing an application for a
disability grant which was ultimately paid, this court granted
constitutional damages equivalent to the interest which would have
been payable on the money which had been unlawfully withheld.
Similarly in
Modderfontein
Squatters
[39]
this court, in an award subsequently endorsed by the Constitutional
Court,
[40]
ordered the State
to pay damages equivalent to the value of land that had been lost due
to a squatter invasion that occurred after
the State failed to
provide land for occupation by the residents of an informal
settlement. See further
Mahambehlala
[41]
and
Mbanga
[42]
both judgments in which constitutional damages were ordered to be
paid in circumstances similar to that in
Kate’s
case. However, there
is no reported decision in this country where constitutional damages
have been awarded as a solatium for breach
of a right where there has
been no financial loss, either direct or indirect, or where the
compensation had been awarded for a
physical or psychiatric injury.
[59]
It seems to me, in principle, that where, as here, persons have been
compensated for their damages suffered by reason of an
injury,
physical or psychiatric, any further damages would effectively amount
to a punishment for breach of a right for which compensation
has
already been granted. Nor, in this case, would this be justified to
bring home to those in authority the necessity of dealing
with the
appalling state of sanitation facilities provided at schools. The
documentation available shows that this has been brought
home to them
time and again. In this regard, I can do no better than refer at some
length to the judgment of Ackermann J in
Fose
where the learned
judge said:
[43]
‘
[71] I agree
with the criticisms of punitive constitutional damages referred to .
. . above. Nothing has been produced or referred
to which leads me to
conclude that the idea that punitive damages against the government
will serve as a significant deterrent
against individual or systemic
repetition of the infringement in question is anything but an
illusion. Nothing in our own recent
history, where substantial
awards for death and brutality in detention were awarded or
agreed to, suggests that this had any
preventative effect. To make
nominal punitive awards will, if anything, trivialise the right
involved.
For awards to have
any conceivable deterrent effect against the government they will
have to be very substantial and, the more substantial
they are, the
greater the anomaly that a single plaintiff receives a windfall
of such magnitude. And if more than one person
has been assaulted in
a particular police station, or if there has been a pattern of
assaults, it is difficult to see on what principle,
which did not
offend against equality, any similarly placed victim could be denied
comparable punitive damages. This would be
the case even if, at
the time the award is made, the individuals responsible for the
assaults had been dismissed from the police
force or other effective
remedial steps taken.
[72] In a country
where there is a great demand generally on scarce resources, where
the government has various constitutionally
prescribed
commitments which have substantial economic implications and
where there are “multifarious demands on the
public purse and
the machinery of government that flow from the urgent need for
economic and social reform”, it seems to
me to be inappropriate
to use these scarce resources to pay punitive constitutional damages
to plaintiffs who are already
fully compensated for the
injuries done to them, with no real assurance that such payment will
have any deterrent or preventative
effect. It would seem that funds
of this nature could be better employed in structural and systemic
ways to eliminate or substantially
reduce the causes of infringement.
[60]
It was argued on behalf of the appellants that this approach was not
set in stone and that since it had been delivered, other
jurisdictions had recognised claims for constitutional damages
flowing from breaches of constitutional obligations. For example,
in
Ward
[44]
a Canadian court recognised that harm is done to society when the
State violates constitutionally protected rights as, it felt,
this
impairs public confidence and diminishes public faith in the efficacy
of constitutional protection.
[45]
It concluded that the breach of a constitutional right causes harm to
a claimant’s intangible interests and should not preclude
a
resilient claimant from recovering damages simply because a
substantial psychological injury cannot be proved.
[46]
[61]
In New Zealand, too, compensation has been granted for the breach of
a constitutional rights. In
Dunlea
v Attorney-General
[47]
such an award was made as it ‘embraces the extra dimension of
vindicating the claimant’s right, a right which has been
vested
with an intrinsic value, and it is that intrinsic value to the
claimant for which he or she must be compensated over and
above the
damages which the common law torts have traditionally attracted’.
[48]
Similarly in
Liston-Lloyd
v The Commissioner of Police
[49]
similar sentiments were expressed, with the court holding that an
individual ‘should be able to feel secure in the knowledge
that
the State will respect his or her [constitutional] rights, and the
State should be required to compensate him or her for injury
or loss
resulting from the failure to do so’.
[50]
And in Ireland, the courts have recognised that aggravated and
exemplary damages may be awarded against the State where the
government
has taken ‘oppressive, arbitrary or unconstitutional
action’.
[51]
The Irish
Supreme Court also sanctioned exemplary damages for constitutional
rights and violations in order to mark its particular
disapproval of
conduct.
[52]
[62]
The appellants also placed emphasis upon the recent arbitration award
in the
Life
Esidimeni
[53]
case which involved the death of numerous patients who were moved
from a properly equipped medical facility to various institutions
incapable of meeting their needs. The arbitrator, a former Deputy
Chief Justice of this country, recognised that the rights of
the
families of those who had died had been violated and awarded
substantial compensation as constitutional damages. However not
only
does this lack the binding force of judicial precedent, but the facts
of that case are substantially different to the present
and each case
must be decided in the light of its own peculiar circumstances.
[63]
Depending upon the facts and circumstances of any particular case,
the approach of awarding constitutional damages to mark
displeasure
may well be justifiable in theory, but there are practical
considerations as well. The social and political circumstances
in
Canada, New Zealand, Ireland and other jurisdictions abroad are quite
unlike those which pertain in this country. Here there
is a chronic
shortage of what would in foreign jurisdictions be regarded as basic
infrastructure; and here the public purse could
be far better
utilised for the benefit of many than in paying a handful of persons
a substantial sum over and above the damages
they have sustained and
for which they have been compensated.
Furthermore
the breach of rights involved in the failure to provide proper
sanitation facilities at schools is, on the evidence,
widespread and
affects the rights of a large number of scholars across Limpopo. I
can see no reason why the K family should be
the beneficiaries of an
additional award of constitutional damages in order to vindicate the
rights of all scholars to proper sanitation
facilities at schools.
I
do not think things have changed so much in this country that the
approach set out in
Fose
is no longer appropriate. In my view
there is no room for an award of constitutional damages.
The
declaratory order
[64]
I turn now to deal with the court a quo’s refusal to grant a
declaratory order relating to the respondents’ breach
of their
constitutional obligations. It was argued that in the light of the
finding that the respondents’ actions breached
the rights of
the K family to equality, dignity, life, safe environment and basic
education, the court ought to have issued the
declarator the
appellants sought rather than refusing it on the basis that it would
serve no immediate purpose. This argument was
based squarely upon
s 172(1)
(a)
of the Constitution
which provides that when deciding a constitutional matter, a court
‘must declare that any law or conduct
that is inconsistent with
the Constitution is invalid to the extent of its inconsistency’.
Relying upon decisions such as
Minister
of Health v Treatment Action Campaign (No 2)
[54]
and
National
Director of Public Prosecutions v Mohamed NO
[55]
it was argued that the Constitutional Court had confirmed the
existence of this duty insofar as it applies to state policy, and
that where a court finds that a policy is inconsistent with the
Constitution it is obliged under s 172(1)
(a)
to make a
declaration to that effect.
[56]
[65]
That is no doubt so, but I do not think it can be said to have been
state policy to have provided only such abysmal sanitation
infrastructure, and the structured interdict issued by the court a
quo was aimed at ensuring an improvement at the school. In addition,
the court a quo in its judgment castigated the education authorities
for failing to provide proper toilet facilities at schools,
stating
that those which had been provided were not fit for human use and
that it was clear that ‘due to lack of political
will no effort
was made to better the situation at schools of which the [MEC,
Department of Education] was well aware’. This
stinging rebuke,
which this court endorses, will hopefully in itself move those in
authority to take action to improve the situation.
[66]
Furthermore, but a compelling factor as was stressed by this court in
Kate
,
[57]
a declarator is most appropriate where it will serve a useful purpose
in clarifying or settling legal disputes to hopefully present
new
ones from arising. In that matter, the invitation to issue a
declarator was refused as this court felt that there could be
no
doubt that the conduct of the administration was constitutionally
unlawful and there would therefore be no purpose in any further
pronouncement to that effect. In the present case, the authorities
are well aware of the problem and their obligation to overcome
it.
Thus far they seem to have lacked the capability to do so, but that
will not be overcome by a declaratory order. Moreover the
declaratory
sought, namely, that the respondents had breached various sections of
the Constitution would not identify the conduct
which is the subject
of the order nor identify the respects in which constitutional
obligations were breached. It would thus be
inappropriate to issue a
declaratory in such indeterminate terms.
[67]
In these circumstances, I do not think this court can say that the
court a quo did not exercise its discretion judicially in
not
granting the declarator the appellants sought. That being so, there
is no room for this court to interfere on appeal.
Future
medical expenses
[68]
I turn now to consider the future medical expenses claimed in respect
of B. In respect of Claim C, the court a quo allowed
M and O each
R6 000 in respect of future medical expenses, but disallowed any
amount in respect of B as there had been no
specific claim on his
behalf in the particulars of claim. Of course there should have been
such a claim, and it is surprising to
say the least that an amendment
in that regard was not sought. But it would be unjust to disallow B
his due merely because of the
straitjacket of the claim as pleaded.
Counsel for the respondents was constrained to concede during
argument that justice demanded
that the award be altered to allow B a
sum in respect of the loss which appears not to have been claimed due
to an oversight. That,
too, was a sensible and practical approach to
an obvious injustice.
[69]
For these reasons, the award in respect of Claim C should be altered.
I can see no reason why B should not be awarded the same
sum as his
siblings, an amount not challenged on appeal. The award in respect of
Claim C will therefore be altered to include the
sum of R6 000
in respect of B’ future medical expenses.
Costs
[70]
That brings me to the question of costs. The appellants have
succeeded on appeal, and costs should follow that event. We have
been
alerted, however, to the fact that two of the three counsel who
appeared for the appellants acted
pro bono
and do not seek to
be included in the costs order. In these circumstances, those counsel
are not only to be thanked for their services
but it is fair and
reasonable to issue an order similar to that in the court a quo
allowing them to recover the reasonable costs
of their disbursements
in travelling to and accommodating themselves in Bloemfontein for
this appeal.
[71]
Further in regard to costs, I should mention that the court a quo
ordered the respondents to pay the costs of the
amicus
curiae
.
It did so as it felt the
amicus
had been of
assistance ‘by advancing comprehensive and useful argument’.
I accept the
amicus
was of assistance,
but that in itself was no reason for it to be awarded its costs. An
amicus
appears
not as a party, but as a friend of the court, and it is trite that it
is thus not entitled to costs.
[58]
However, there is no appeal against that order and, wisely, the
amicus
did not seek its
costs in this court – in which it was, in any event, probably
somewhat fortunate to have been recognised
given that its argument
was substantially the same as that of the appellants. Having said
that, we are grateful to counsel who
appeared on its behalf, whose
argument was skilful and illuminating.
Further
evidence
[72]
One further issue needs to be mentioned. The appellants filed an
application to place what it referred to as ‘new evidence’
before this court on appeal, contending it to be relevant to their
claim for constitutional damages as well as the declaratory
order
that they sought. This ran into hundreds of pages, and appeared to
have been evidence compiled in response to the structured
interdict
issued by the court a quo. The essence of the appellants’
contention in this regard was that this evidence showed
that the
respondents had failed to properly comply with their undertakings
under the structured interdict. This information was
really a matter
for the court a quo, which had ordered the first and second
respondents to report to it in respect of various issues
as set out
in paras 2.3 and 2.4 of the order it granted.
[59]
In any event, many of the allegations appeared to be disputed or a
matter of political, rather than legal, relevance. And, at the
end of
the day, the application was not formally moved before us and no
reference was made to these documents. Nothing further
needs be said
about the issue.
Result
[73]
In the light of what is set out above, the following order will be
made:
A The appeal
succeeds to the extent that the order of the court a quo is altered
as follows:
‘
1 The words
“the claim is dismissed” in para 1 of the order are
deleted and substituted by the following:
(a) In respect of
the claim for emotional shock and grief, the first and second
defendants are ordered to pay the following amounts,
jointly and
severally, the one paying the other to be absolved:
(i) R350 000
for Mrs K;
(ii) R350 000
for Mr K;
(iii) R200 000
for Ms Y K;
(iv) R200 000
for Mr L K;
(v) R100 000
for each of the minor children M, O and B K.
2 The words ‘Claim
A’ and ‘The claim for grief is dismissed’ are
deleted from para 2 of the order.
3 Paragraph 3.1 of
the order is deleted and substituted with the following:
‘
3.1 The claim
for future medical treatment in respect of the minors M, O and B K
succeeds. The first and second defendants are ordered
to pay for the
future treatment in respect of:
(a) M K, the amount
of R6 000.
(b) O K, the amount
of R6 000.
(c) B K, the amount
of R6 000.’
B The first and
second respondents are to pay the appellants’ costs of the
appeal, jointly and severally, the one paying the
other to be
absolved. Such costs are to include the disbursements incurred by two
counsel who appeared
pro bono
for the appellants in travelling
to and being accommodated in Bloemfontein in order to present this
appeal.’
_______________
L
E Leach
Judge
of Appeal
Appearances
For
the Appellants: V Maleka SC (with him A Hassim and N Stein)
Instructed
by: Section 27, Braamfontein
Webbers,
Bloemfontein
For
the Respondents: M S Phaswane (with him K Ramaimela)
Instructed
by: The State Attorney, Polokwane
The
State Attorney, Bloemfontein
Amicus
Curiae
: K Hofmeyr (with her H Cassim and A Armstrong)
Equal
Education Law Centre, Khayelitsha
Webbers,
Bloemfontein
[1]
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
CCT
38/12 [2012] ZACC 18; 2012 (6) SA 223 (CC).
[2]
See further
Ex
parte Institute for Security Studies: In re S v Basson
[2005] ZACC 4
;
2006
(6) SA 195
(CC) para 7.
[3]
National
Treasury
para
14.
[4]
Bourhill
v Young
[1943]
AC 92.
[5]
At 117.
[6]
Bester
v Commercial Union Versekeringsmaatskappy van SA Beperk
1973 (1) SA 769
(A).
[7]
See 779D-G.
[8]
Barnard
v Santam Beperk
1999
(1) SA 202 (SCA).
[9]
Road
Accident Fund v Sauls
2002
(2) SA 55 (SCA).
[10]
Sauls
paras
13 and 17.
[11]
At 422.
[12]
See eg C Sappideen and P Vines
Fleming’s
The Law of Torts
10
ed (2011) para 8.130.
[13]
Alcock
v Chief Constable of South Yorkshire
[1992]
1 AC 310; [1991] 4 All ER 907 (HL).
[14]
[1998] UKHL 45; [1999] 1 All ER 1 (HL).
[15]
[1996] EWCA Civ 1310
;
[1997] 1 All ER 577
(CA).
[16]
See eg in Australia,
Tame
v New South Wales; Annetts v Australian Stations (Pty) Ltd
[2002] HCA 35
;
[2003] 211 CLR 317
HCA; in New Zealand,
Van
Soest v Residual Health Management Unit
[2000]
1 NZLR 179
at 197-199 NZCA; in Canada
Odhavji
Estate v Woodhouse
2003 SCC 69
;
[2003]
3 SCR 263
[41] SCC.
[17]
Fleming’s
Law of Torts
para
8.130 at 177.
[18]
At 917h-j. See further
McLoughlin
v O’Brian
at
418D and 431G-H.
[19]
Alcock
at
931
a-b.
[20]
Waring
and Gillow Ltd v Sherborne
1904
TS 340
at 348.
[21]
See at 662, 666 and 673-4 in particular.
[22]
Charlesworth and Percy on
Negligence
12 ed (2011) 16-27.
[23]
Cf
Kirby
v Redbridge Health Authority
(QB)
[1994] PIQR Q1.
[24]
See further
Regan
v Williamson
[1976]
1 WLR 305
(QB) at 308D-H.
[25]
Fleming’s
The Law of Torts
§
8.170,
Mason
v Peters et al
(1982)
39 OR (2 d) 27; 139 DLR (d) 104: 22 CCLT (Ontario Court of Appeal).
See further
Barnard
v Santam
at
216B-D.
[26]
See
Bester
v Commercial Union
at
779H and
Barnard
v Santam
at
216I-217B.
[27]
Mbhele
v MEC for Health for the Gauteng Province
(355/15)
[2016] ZASCA 166.
[28]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) paras 35-36.
[29]
Fose
v Minister of Safety and Security
1997
(3) SA 786 (CC).
[30]
Para 58.
[31]
See
Minister
of Police v Mboweni & another
2014
(6) SA 256
(SCA) para 21.
[32]
Mighty
Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd
[2015]
ZACC 34
;
2016 (1) SA 621
(CC) para 38.
[33]
Cf
https://www.moneyweb.co.za/news/south-africa/road-accident-fund-hits-the-wall/
[34]
(CB 13-14).
[35]
Jaensch
v Coffey
[1984] HCA 52
;
(1984)
155 CLR 549
at 567 (referred to in 9
Lawsa
2 ed para
545).
[36]
Hing
& others v Road Accident Fund
2014
(3) SA 350
(WCC) para 24.
[37]
A description used by Van Heerden ACJ in
Bester’s
case at 217A-C.
[38]
MEC,
Department of Welfare, Eastern Cape v Kate
2006
(4) SA 478 (SCA).
[39]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae)
2004 (6) SA 40
(SCA).
[40]
President
of the Republic of South Africa & others v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources Centre, Amici
Curiae)
2005
(5) SA 3
(CC) para 65-66.
[41]
Mahambehlala
v MEC for Welfare, Eastern Cape & another
2001
(1) SA 342
(SE).
[42]
Mbanga
v MEC for
Welfare, Eastern Cape & another
2002
(1) SA 359 (SE).
[43]
Paras 71-72.
[44]
Vancouver
(City) v Ward
[2010]
2 SCR 28.
[45]
Ward
para
28.
[46]
Ward
paras
24 and 27.
[47]
Dunlea
v Attorney-General
[2000]
3 NZLR para 67.
[48]
Dunlea
para
67.
[49]
Liston-Lloyd
v The Commissioner of Police
[2015]
NZHC 2614.
[50]
Paras 42-44.
[51]
Kennedy
v Ireland
[1987]
IR 587
at 594.
[52]
Conway
v Irish National Teachers Organisations
[1991]
2 IR 305
at 317.
[53]
Life
Esidimeni Arbitration Award
at
http://www.saflii.org/images/LifeEsidimeniArbitrationAward.pdf.
[54]
Minister
of Health & others v Treatment Action Campaign & others (No
2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC) paras 99-106.
[55]
National
Director of Public Prosecutions & another v Mohamed NO &
others
[2003] ZACC 4
;
2003
(1) SACR 561
(CC) para 56.
[56]
See
also
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[2019]
ZACC 15
;
2019 (4) SA 331
(CC) para 101.
[57]
Kate
para
28.
[58]
Ex
parte De Vos
1953
(2) SA 642
(SR) at 643D-H.
[59]
Quoted in para 19 of this judgment.