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[2018] ZASCA 96
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Flanagan v Minister of Safety and Security (497/2017) [2018] ZASCA 96; 2018 (2) SACR 123 (SCA) (1 June 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 497/2017
In
the matter between:
EARL
FLANAGAN
APPELLANT
and
MINISTER
OF SAFETY AND SECURITY
RESPONDENT
Neutral
citation:
Flanagan
v Minister of Safety and Security
(497/2017)
[2018] ZASCA 96
(1 June 2018)
Coram:
Lewis,
Seriti and Saldulker JJA and Makgoka and Schippers AJJA
Heard:
9
May 2018
Delivered:
1
June 2018
Summary:
Delict
: liability of the Minister of Safety and Security: appellant
sodomised while in police custody for drunken driving and related
charges: appellant entitled to be released on bail in terms of
section 59(1)
of the
Criminal Procedure Act 51 of 1977
: failure
to grant bail in the circumstances, cumulatively considered with the
failure of the police to detain the appellant
separately from persons
who had been arrested for violent crimes, gives rise to delictual
liability on the part of the Minister
for the police’s conduct.
ORDER
On
appeal from:
Eastern
Cape Local Division, Port Elizabeth (Msizi AJ) sitting as court of
first instance):
1 The appeal
is upheld with costs, including costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
‘
Judgment is
granted in favour of the plaintiff against the defendant for:
(a)
payment
of the amount R200 000;
(b)
interest
on the above amount at the rate of nine per cent per annum from the
date of the judgment until date of final payment;
(c)
costs
of the suit.’
JUDGMENT
Makgoka
AJA (Lewis, Seriti and Saldulker JJA and Schippers AJA concurring)
[1]
The appellant, Mr Earl Flanagan, was sodomised by fellow detainees on
12 October 2009 while in police custody. As a result,
he instituted a
claim in the Eastern Cape Local Division, Port Elizabeth against the
respondent, the Minister of Safety and Security,
[1]
for damages. His
claim was based on the police’s alleged breach of their duty to
ensure his safety whilst in their custody.
He alleged that the police
officers, who were acting within the course and scope of their
employment by the Minister, failed to
take reasonable steps to
prevent him from being sodomised. The court a quo (Msizi AJ)
dismissed the appellant’s claim, and
made no order as to costs.
The appeal is with the leave of this court.
Background
facts
[2]
The
facts are simple. The appellant was arrested in the early hours of
Saturday, 10 October 2009, at approximately 02h30, for driving
under
the influence of alcohol, reckless and negligent driving and failure
to stop after an accident. This was after the appellant,
whilst under
the influence of alcohol, had driven into a fence wall of a residence
in Korsten, Port Elizabeth. He attempted to
drive away from the
scene, leaving his injured passengers behind. He was arrested shortly
thereafter and taken to Mount Road police
station. After his blood
had been drawn at the provincial hospital, he was returned to the
Mount Road police station. The shift
commander that day was Captain
Singh. Later that morning, Inspector Van Huyssteen was assigned the
docket as the investigating
officer.
[3]
After
interviewing the appellant, he decided to charge him. It
appears that another senior officer, Inspector Erasmus, later
considered whether the appellant should be released on bail. For that
purpose, he completed a document titled ‘Bail Information
Form.’ In that form, Inspector Erasmus noted that the appellant
had a fixed home address and employment; was married with
a 5
year-old child; had no previous convictions and no outstanding
warrants of arrest; was not on bail on another case; and had
not
committed an offence while on bail.
[4]
On
these considerations, Inspector Erasmus recommended that the release
of the appellant on bail should not be opposed. The recommendation
was agreed to and countersigned by Lieutenant Colonel Brand.
Meanwhile, earlier that morning, the appellant’s wife, Mrs
Brenda Flanagan, was informed of the appellant’s arrest, and
that he would be released on bail of R500, which had to be paid
before 08h30, as there was a likelihood that the appellant would be
transferred to another police station. At approximately 08h30,
Mrs
Flanagan arrived at Mount Road police station to pay bail for the
appellant. She was informed that no bail had been fixed;
that Captain
Singh had ended his shift and gone home; and that the appellant had
already been transferred to Walmer police station.
She went to Walmer
police station where she was informed that there was no bail for the
appellant.
[5]
As
a result, the appellant spent the rest of the weekend in detention.
During the early hours of Monday, 12 October 2009, the appellant
was
sodomised. According to the appellant, he woke up to find himself
grabbed by fellow detainees, who ripped off his clothes and
forced
him to lie face down on the floor. His mouth was held shut as he was
sodomised by an unknown number of detainees. He lost
consciousness
during the ordeal, and regained it just before sunrise. He did not
report the incident to the police for fear of
reprisals. Later that
morning he was taken to court where he was released on bail in the
amount of R500. The charges against him
were eventually withdrawn.
The
pleadings
[6]
It
is necessary to refer briefly to the pleadings. The appellant’s
damages claim is said to have arisen from the police’s
negligent conduct, and breach of their legal duty to ensure his
safety whilst in their custody. The alleged breaches can conveniently
be grouped in three broad categories. First, it was alleged that the
police failed in their common law duty to prevent harm to
the
appellant. Second, it was alleged the police violated a number of the
appellant’s constitutional rights, including the
rights to
dignity, to freedom and security and to bodily integrity. Third,
it was alleged that the police failed to separate
the appellant from
other categories of detainees, in violation of the relevant Standing
Order, to which I will refer later. It
was also alleged that the
police failed to inspect the cells at regular intervals. The Minister
admitted that the police officers
owed a legal duty to the appellant,
and that they were obliged to ensure the appellant’s safety
whilst in police custody.
However, the Minister denied that the
police had breached that duty as alleged. The respondent pleaded that
all reasonable and
necessary measures were taken to meet the police’s
legal obligations.
[7]
The
appellant’s claim is founded in delict. To establish the
respondent’s liability he had to establish all the elements
of
a delictual claim. On the pleadings, the conduct of the police and
its wrongfulness were not in dispute, as the respondent conceded
that
the police had a duty to protect the appellant from harm.
Consequently, only two elements of delictual liability were in issue,
namely negligence and causation.
The
evidence
[8]
Before
I consider the issues in dispute, I refer briefly to the evidence,
and how the court a quo approached the matter. A number
of witnesses
testified in the court a quo. Save for the brief outline below, I do
not propose to embark on any detailed reference
to the evidence
adduced in the court a quo. Given the view I take of the matter and
the proper basis upon which the appeal must
be determined, no purpose
would be served by such an exercise. Where necessary, I will refer to
the relevant parts of the evidence
in the course of the judgment.
[9]
The
appellant and his wife testified with regard to liability. A clinical
psychologist, Mr Ian Meyer, testified on behalf of the
appellant,
primarily in relation to quantum. However, he also testified about
the contents of his report, to the extent the appellant
had narrated
to him the facts giving rise to his arrest, his detention and the
sodomy. I have already referred to the relevant
parts of Mrs
Flanagan’s evidence. Apart from the undisputed evidence around
the sodomy, referred to in para 4 above, the
appellant also testified
as follows. Shortly after his transfer and detention at Walmer police
station on Saturday morning, he
was warned by a friendly cellmate
that the other detainees were planning to harm him. He informed two
police officers about this,
and requested to be placed in a different
cell. Nothing was done about this. During the whole period of his
detention, there were
no cell inspections, and no food was provided
to the detainees.
[10]
On
behalf of the respondent, a number of police officers testified,
including Captain Singh and two other senior officers, Captain
Richardson and Lieutenant-Colonel Van Zyl, who were on duty during
the weekend of the appellant’s detention.
Lieutenant-Colonel
Van Zyl was the station commander of Walmer police
station at that stage. All the police officers testified in
rebuttal of
the appellant’s evidence that no cell inspections
were done and that no food was provided to the detainees the whole
weekend.
Captain Singh, Captain Richardson and Lieutenant-Colonel Van
Zyl were cross-examined on the issue of bail. Both Captain Richardson
and Lieutenant-Colonel Van Zyl were cross-examined on the separation
of detainees according to certain categories. I shall revert
to these
aspects later.
In
the court a quo
[11]
At
the outset, it must be mentioned that whatever other factual disputes
arose between the parties, there was no such dispute with
regard to
the sexual assault of the appellant. It was common cause that the
appellant had been sodomised in the police cells in
the manner
testified by him. The appellant’s evidence in this regard was
uncontroverted. Accordingly, the trial was conducted
on the basis
that the sodomy had occurred as stated by the appellant in his
testimony. This is also reflected in the court a quo’s
formulation of the issue it had to determine, as being:
‘
Did
the police, as a result of negligence, fail to exercise their legal
duty to protect the plaintiff whilst he was in their custody?
Put
differently, did the police fail to exercise reasonable care to
prevent the plaintiff [from] being assaulted when there was
a legal
duty to do so?’
[12]
Regarding
the enquiry into the respondent’s liability, the court a quo
considered two aspects in its judgment. First, the
effect of the
police’s failure to release the appellant on bail. Second,
whether the appellant had warned the police of his
likely harm at the
hands of fellow detainees. With regard to the first issue, the court
a quo found that liability for the respondent
did not arise as there
was ‘no evidence’ that the rape was foreseeable. After a
brief disposal of the first issue,
the court a quo devoted the rest
of its judgment to the second issue. It found that the appellant’s
evidence suffered inherent
contradictions when compared to the
contents of Mr Meyer’s report.
[13]
Also,
the court accepted the documentary evidence presented by the police
in the form of occurrence book entries, which were to
the effect that
there were hourly cell inspections; that the detainees were provided
with sufficient food, and that no complaints
were received from any
of the detainees, including the appellant. It must be stated that the
appellant was a very poor witness
on that issue. He tailored his
evidence to show the police in a bad light. The court a quo correctly
preferred the evidence of
the police over that of the appellant in
this regard. But it is was plainly wrong for the court a quo,
on that basis, to
dismiss the appellant’s claim.
[14]
In
this regard, it must be borne in mind that the issue on which the
appellant’s evidence was rejected, is secondary. The
court a
quo’s rejection of the appellant’s version did not
disturb the core factual issue in the matter, which is that
the
appellant was sodomised while in the police cells. Whether the
appellant had alerted the police of an imminent danger against
him is
a consideration concerning negligence. If the appellant had succeeded
in establishing that he had informed the police of
the impending
harm, and that they did nothing, a conclusion of negligent omission
would have been clear. But its importance should
not be overstated.
It remains secondary to the primary issue, which is whether in the
circumstances of the case, the police were
negligent.
[15]
Viewed
in this light, it follows that the appellant’s poor performance
as a witness on the issue considered by the court a
quo, is of very
limited significance in determining the issue of negligence. That
enquiry must proceed on the basis of the following
undisputed facts:
the appellant was arrested for offences which entitled him to be
released on police bail; he was not released
on bail after being
recommended for it; consequently, he spent the rest of the weekend in
police custody; and he was sodomised
by fellow detainees while in
police custody. Thus, the court a quo misdirected itself by
dismissing the appellant’s claim
only on the basis that he had
failed to prove that he had alerted the police to possible harm to
himself.
Negligence
[16]
I
turn now to consider the issue of negligence. The conduct of the
police complained of is in the form of an omission to release
the
appellant on bail, and the alleged failure to take adequate measures
to ensure that whilst he was in their custody, no harm
befell him.
The lodestar for establishing negligence remains
Kruger
v Coetzee
1966 (2) SA 428
(A)
where this
court formulated the now trite test at 430E-F. Applying that test to
the present case, the questions are whether (i)
reasonable police
officers in the position of the police officers at Walmer police
station would have foreseen the reasonable possibility
of their
conduct injuring the appellant’s person and causing harm; (ii)
reasonable police officers in the position of those
police officers
would have taken reasonable steps to guard against that harm; and
(iii) those police officers failed to take
those steps.
[17]
Two
aspects are relevant in the negligence enquiry. The first is
the effect of the police’s failure to release the appellant
on
bail. The second concerns the police’s failure to comply with
the Standing Order. Regarding the first, the power of the
police to
release suspects on bail is governed by s 59 of the Criminal
Procedure Act 51 of 1977 (the CPA). It provides:
‘
Bail
before first appearance of accused in lower court —
(1) (
a
) An
accused who is in custody in respect of any offence, other than an
offence referred to in Part II or Part III of
Schedule
2
may,
before his or her first appearance in a lower court, be released on
bail in respect of such offence by any police official
of or above
the rank of non-commissioned officer, in consultation with the police
official charged with the investigation, if the
accused deposits at
the police station the sum of money determined by such police
official.
(
b
) The
police official referred to in
paragraph
(
a
)
shall,
at the time of releasing the accused on bail, complete and hand to
the accused a recognizance on which a receipt shall be
given for the
sum of money deposited as bail and on which the offence in respect of
which the bail is granted and the place, date
and time of the trial
of the accused are entered.
(
c
) The
said police official shall forthwith forward a duplicate original of
such recognizance to the clerk of the court
which has jurisdiction.
(2) Bail
granted under this section shall, if it is of force at the time of
the first appearance of the accused in a
lower court, but subject to
the provisions of
section
62
,
remain in force after such appearance in the same manner as bail
granted by the court under
section
60
at
the time of such first appearance.’
[18]
It
is common cause that none of the offences for which the appellant was
arrested falls under either Part II or III of Schedule
2 to the CPA.
It follows that the appellant was a candidate to be released on bail
in terms of s 59, and that a police officer
of the required standing
was entitled to release him. In this regard, it should be borne in
mind that Inspector Erasmus recommended
the release of the appellant
on bail, after satisfying himself that he was not a flight risk. It
seems that there was some communication
breakdown between the police
– firstly, internally at Mount Road police station, and
secondly, the between Mount Road and
Walmer police stations.
[19]
This
must be so because when Mrs Flanagan sought to pay bail at Mount
Road, she was informed that there was no record of Inspector
Erasmus’
recommendation to release the appellant on bail. She encountered the
same situation at the Walmer police station.
Had any of the police
officers encountered by Mrs Flanagan at either of the police stations
cared to make a simple enquiry, they
would have established that: the
appellant was arrested for offences which qualified him for police
bail; and that Inspector Erasmus
had in fact, recommended his release
on bail. They failed to do so. Instead, according to Mrs Flanagan,
they adopted a supine and
uncaring attitude towards her. Her
unchallenged evidence is that the police officers at Walmer police
station laughed at her and
mockingly told her that the appellant was
going to spend the weekend in custody, and that he ‘had to be
strong’, whatever
that meant. In all the circumstances, the
appellant should have been released on bail on Saturday morning. The
police failed in
this regard.
[20]
It
is therefore clear that the failure by the police to release the
appellant on bail is closely connected to his subsequent sexual
assault. This is so because, having failed to release him under
circumstances where he was entitled to be released, and had in
fact
been recommended for bail by the investigating officer, the police
failed to ensure that he was separated from violent crimes
detainees.
[21]
That
brings me to the Standing Order. The relevant police Standing Order
(General) 361, is titled:
Handling
of Persons in the Custody of the Service from their Arrival at the
Police Station
,
Notice 31 of 2012. Clause 1 reads:
‘
Background
In
order to comply with its obligations in terms of the Constitution,
the [police] service is obliged to take certain steps with
regard to
every person in its custody. The steps that must be followed from the
arrival of such person at the police station, are
outlined below.’
Clause
13(1) of the Standing Order, titled
Safe Custody and Handling of
Persons in Custody
, provides separation of detainees according to
certain categories. Category (g) reads as follows:
‘
Whenever
reasonably possible, persons in custody who are alleged to have
committed violent crimes, must be detained separately from
other
persons in custody.’
[22]
The
failure to keep the appellant separated from persons detained for
violent crimes was therefore in violation of clause 13(1)(g)
of the
Standing Order. Once they failed to keep the appellant
separately from violent crimes detainees (in violation of the
Standing Order) there was a real risk that such harm would ensue. In
other words, it was reasonably foreseeable that the
appellant could
be harmed.
[23]
With
regard to the failure to detain the appellant separately, I need to
dispose of a submission advanced on behalf of the respondent
during
argument in this court. It was common cause in the court a quo that
it could not be determined from the police occurrence
books what
categories of detainees were in the same cell with the appellant. On
that ground, counsel for the respondent submitted
that the appellant
should be non-suited because he could not prove that he was kept with
violent crimes detainees. This is an untenable
proposition. The
information in this regard is within the peculiar knowledge of the
respondent. Confronted with the allegation
that there had been
failure to comply with the duty in the Standing Order to detain
violent crimes detainees from other categories
of detainees such as
the appellant, it was incumbent upon the respondent to adduce
evidence to meet that allegation. He did not.
[24]
As
was pointed by Jansen JA in
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A) at 39G-H, the failure of the respondent to reply or
lead evidence in rebuttal of a fact peculiarly within his knowledge
is
taken into account when one decides whether a
prima
facie
case has been made out. The appellant’s undisputed evidence
that he was sexually assaulted by fellow detainees, establishes
a
prima facie case that the assailants were violent crimes detainees.
In the absence of contrary evidence, an ineluctable conclusion
is
that the appellant was detained with violent crimes detainees.
[25]
Back
to reasonable foreseeability. Given that it was reasonably
foreseeable that harm could arise, the question is whether reasonable
police officers would have taken steps to prevent such harm. To
determine the reasonableness of guarding against the risk
of the
harm, a number of considerations are relevant. These include the
degree or extent of the risk created by the conduct in
question; the
gravity of the consequences if the harm occurs; and the burden of
eliminating the risk of harm. See
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 776H-I.
[26]
In
this case, the risk created by placing a person detained for drunk
driving in the same cell with violent crimes detainees was
great, as
was the gravity of possible consequences. The burden of eliminating
this risk was slight. The obvious remedy was to separate
the
appellant from the violent crimes detainees. Even if this had not
been possible (and nothing in the record suggests it was
not) other
reasonable steps were available to the police. In my view, the
police could have, throughout the weekend, given
careful
consideration as to whether further detention of the appellant was
warranted, and whether he should not be released on
bail. That
applies also to detaining him separately from violent crimes
detainees. The police officers failed to take those steps.
It is
worth mentioning that it is not the failure only by junior police
officers at Walmer police station. As already stated, at
least one
senior officer, Captain Richardson inspected the cells during that
weekend. On these considerations, I conclude
that by failing to
take the reasonable steps referred to above, the police were
negligent.
Causation
[27]
As
explained in
Minister
of Police v Skosana
1977
(1) SA 31
(A) at 34F-H and 35A-D,
there
are two distinct questions in the causation enquiry. The first is a
factual one and relates to the question whether the negligent
act or
omission in question caused or materially contributed to the harm
giving rise to the claim. If it did not, then no
legal
liability can arise. If it did, then the second question is whether
the negligent act or omission is linked to the harm sufficiently
close or directly for legal liability to ensue, or stated
differently, whether the harm is too remote. Here considerations of
legal policy may play a part.
See
also
International
Shipping Co (Pty) v Bentley (Pty) Ltd
1990 (1) SA 680
(A) at
700E-H, where
Corbett
CJ restated the general principles of causation.
[28]
With
regard to factual causation, counsel submitted in this court that
since the appellant could not prove that he was attacked
by a violent
crime detainee, the factual link has not been established. I
disagree. That submission is at odds with the observation
by this
court in
Minister
of Safety and Security v
Van
Duivenboden
2002
(6) SA 431
(SCA) para 25, that a plaintiff is not required to
establish the causal link with certainty, but only to establish that
the wrongful
conduct was probably a cause of the loss, which calls
for a sensible retrospective analysis of what would probably have
occurred,
based upon the evidence and what can be expected to occur
in the ordinary course of human
experience.
That
approach received the imprimatur of the Constitutional Court in
Lee
v Minister for Correctional Services
[2012]
2 ZACC 30
;
2013 (2) SA 144
(CC) para 47.
[29]
Like
Nugent JA in
Van
Duivenboden
para 30,
I find ‘a
direct and probable chain of causation’ between the police’s
failure to release the appellant on bail,
and their failure to detain
him separately, and the attack on the appellant.
What
is more, a retrospective analysis of the entries in the occurrence
books reveals that during the relevant weekend, there were
detainees
arrested for murder, robbery and assault. Of these, only the detainee
held for murder was removed and held separately.
Therefore, in all
the circumstances, I am satisfied that t
he
omissions by the police officers to release the appellant on bail and
to detain the appellant separately from violent crimes
detainees,
materially contributed to the appellant being sodomised.
[30]
In determining
the presence of legal causation, the question is whether the
negligence of the police officers was linked sufficiently
closely or
directly to the loss suffered by the appellant for legal liability to
arise, or whether the loss is too remote.
The test applied in
such an enquiry is trite and settled. It is a flexible one in which
factors such as reasonable foreseeability,
directness, the absence or
presence of a
novus actus
interveniens
, legal policy,
reasonability, fairness and justice all come into consideration. See
Delphisure Group Insurance
Brokers Cape (Pty) Ltd and others v Dippenaar
[2010] ZASCA 85
;
2010 (5) SA 499
(SCA) para 25.
In
the present case, I am of the view that the harm suffered by the
appellant is
sufficiently
closely linked to the omission of the police to attract legal
liability. There is no reason of policy militating against
finding
that the police’s conduct was the cause of the harm to the
appellant..
[31]
In
sum, I conclude that the appellant has shown that all the elements of
delict have been established. The appeal must thus succeed.
Quantum
[32]
It
remains to consider the quantum of damages. The general rule is that
the determination of damages is a function peculiarly within
the
province of the trial court. It is competent, however, for this court
itself to fix the damages to which the appellant is entitled.
See
Neethling
v Du Preez and others; Neethling v Weekly Mail and others
[1994] ZASCA 133
;
1995 (1) SA 292
(A) at 301A-C. This court has all the information
necessary to consider this aspect. It is therefore in as good a
position to do
so, as the trial court. For that reason, no purpose
would be served by remitting the matter for that purpose.
[33]
Counsel
for the parties informed us from the bar that the appellant’s
claim for loss of income had been abandoned. Accordingly,
only
general damages are to be considered.
Arriving
at an appropriate award for general damages is never an easy task.
The broadest
general consideration and the figure arrived at must necessarily be
uncertain, depending upon the court’s view
of what is fair in
all circumstances of the case. See
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199 and
De
Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA). In the latter case, this court noted that
there was a readily perceptible tendency towards increased awards in
respect of
general damages in recent times. However, it reaffirmed
conservatism as one of the multiple factors to be taken into account
in
awarding general damages (para 60). It concluded that the
principle remained that the award should be fair to both sides –
it must give just compensation to the plaintiff, but ‘not pour
out largesse from the horn of plenty at the defendant’s
expense’, as pointed out in
Pitt
v Economic Insurance Company Limited
1957 (3) SA 284
(D) at 287E-F.
[34]
The
unchallenged evidence of the clinical psychologist, Mr Meyer, can be
summarised as follows. Following the sodomy the appellant
was
intensely traumatized. Six years after the fact, he was still being
treated with anti-depressant medication. He had a chronic
disorder
which was likely to continue. He received tranquilizing medication to
help him sleep and for general containment of anxieties.
The
medication was not particularly successful and the appellant was
treated at a clinic. Psychologically, the appellant felt deeply
humiliated and fearful. He had an intense fear of contracting HIV,
and his sexual relationship with his wife was negatively affected
by
the experience. The couple experienced a profound breakdown in their
marriage and were at a stage on the brink of divorce.
[35]
The
appellant could no longer cope at work and working in a team, as
within that team he experienced triggers which precipitated
him
re-experiencing the traumatic experience. He was mocked by his
colleagues. He deliberately absented himself from work and ultimately
his employment was terminated. He attempted suicide by overdose after
losing his job and was hospitalised for five days in an intensive
care unit in a hospital.
[36]
Since
the incident the appellant’s personality has changed, and has
affected his family relations. He has become withdrawn,
irritable,
impatient, easily provoked and aggressive to his wife. He has also
struggled to relate to his child. The aspect of self-image
has been
affected. The appellant became self-rejecting and derogatory about
his masculinity and, in a self-deprecating manner,
suggested to his
wife that she should ‘find a real man.’ For eight months
after the trauma, the appellant suffered
from a post-traumatic stress
disorder (PTSD) as well as a mood and anxiety disorder. At the time
of the trial, the appellant’s
PTSD was in remission, although
some features of the disorder still manifested. His mood disorder was
also largely in remission
due to therapy. The findings by Meyer were,
in material terms, confirmed by Mrs Flanagan and the appellant
himself.
[37]
It
is clear from Mr Meyer’s evidence that the sodomy has had a
serious psychological impact on the appellant. In all the
circumstances, I consider an amount of R200 000 to constitute
adequate compensation for the appellant.
Costs
[38]
Finally,
to the issue of costs. The appellant sought costs of three counsel.
Given the nature of the issues raised in the appeal,
I do not believe
that costs of three counsel are warranted. Costs of two counsel
should suffice.
Order
[39]
In
the result the following order is made:
1 The appeal
is upheld with costs, including costs of two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
‘
Judgment
is granted in favour of the plaintiff against the defendant for:
(a)
payment
of the amount R200 000;
(b)
interest
on the above amount at the rate of nine per cent per annum from the
date of the judgment until date of final payment;
(c)
costs
of the suit.’
____________________
T M
Makgoka
Acting Judge of Appeal
For
the Appellant:
A J Van der Linde SC
(with him P E
Jooste
and T J D Rossi)
Instructed
by:
Swarts Attorneys, Port Elizabeth
Bezuidenhouts
Inc, Bloemfontein
For
the Respondent:
N Gqamana SC (with him V Madokwe)
Instructed
by:
The State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
[1]
The Minister of
Safety and Security, as cited in these proceedings, has been renamed
the Minister of Police.