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[2016] ZASCA 6
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Minister of Police v Dlwathi (20604/14) [2016] ZASCA 6 (2 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20604/14
Not
Reportable
In
the matter between
MINISTER
OF POLICE
APPELLANT
and
STEVE
DLWATHI
RESPONDENT
Neutral
citation:
Minister
of Police v Dlwathi
(20604/14)
[2016] ZASCA 6
(2 March 2016)
Coram
:
Cachalia, Majiedt, Saldulker
and Swain JJA and Baartman AJA
Heard:
16 FEBRUARY 2016
Delivered:
2 MARCH 2016
Summary:
Damages –
facial injuries, loss of hearing and depression resulting from
unlawful assault by police – general damages
award of R675 000
for pain, suffering, disfigurement and loss of the amenities of life
excessive – reduced to R200 000.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Siwendu AJ sitting as
court of first instance):
1
The appeal is upheld in part.
2
Paragraph 1 of the order of the court below is set aside and
substituted
with the following:
‘
The
Defendant is to pay the Plaintiff the sum of R200 000 for
general damages.’
3
The appellant is ordered to pay the respondent’s costs of
appeal.
JUDGMENT
MAJIEDT
JA (Cachalia, Saldulker and Swain JJA and Baartman concurring):
[1]
This appeal concerns an award of damages made by the Gauteng Local
Division of the High Court, Johannesburg (Siwendu AJ sitting
as court
of first instance). The award was made for injuries sustained by the
respondent, Mr Steve Dlwathi, and their sequelae
as a consequence of
an unlawful assault on him by members of the South African Police
Service (SAPS), acting within the course
and scope of their
employment with the appellant, the Minister of Police. The merits of
the claim were conceded and the court below
was seized only with the
quantum of damages. Leave to appeal was granted by the court a quo in
respect of the award for general
damages and for loss of future
earnings. This court granted leave in respect of the award for past
loss of income.
[2]
At the hearing before us the appeal against the award for past loss
of income and for future loss of earnings was abandoned
during the
course of the hearing and the only remaining issue was the award for
general damages. It is necessary, however, to say
something later
about the abandoned part of the appeal. I record at the outset that
counsel who appeared for the Minister in this
court did not appear at
the trial.
[3]
The events which gave rise to the claim are briefly these. Mr Dlwathi
was a practising advocate of the Johannesburg Bar at the
time of the
assault. He was unlawfully assaulted in the presence of friends by
members of the SAPS on 24 June 2005. At that time
Mr Dlwathi was in
his sixth year of private practice. The Minister initially admitted
the nature and extent of the physical injuries
sustained by him but
not their psychological effects on him.
[4]
The physical injuries were agreed at a pre-trial conference to be the
following:
(a)
damage to, amongst others, the tympanic membrane of the left ear with
resultant loss of
hearing;
(b)
blunt force trauma to the head and jaw resulting in, amongst others,
facial and dental injuries
with multiple loss and damage to Mr
Dlwathi’s teeth and the temporo mandibular joints;
(c)
blunt force trauma to the face resulting in lacerations and bleeding;
(d)
a soft tissue injury to the cervical spine.
As
regards the psychiatric effect of the assault the parties agreed that
‘the Plaintiff manifests symptoms of depression.
The degree
and/or extent of such depression remains in dispute and furthermore,
whether or not the Plaintiff is suffering from
post-traumatic stress
disorder’. In respect of the psychological effect of the
assault, the parties agreed that those were
as set out in the reports
of their respective experts, Dr Naude (for the respondent) and Ms
Motsamai (for the appellant). Dr Naudé
and Ms Motsamai agreed
in a joint minute that after the assault Mr Dlwathi:
(i)
experienced a
significant deterioration in his functioning;
(ii)
has no self-confidence
and feels self-conscious about his appearance and the difficulty with
his teeth;
(iii)
has memory and
concentration difficulties;
(iv)
has withdrawn from his
hobbies, social and leisure time activities;
(v)
is more irritable and
has developed depression and anxiety;
(vi)
suffers from
post-traumatic stress.
[5]
It was also common cause that, as a result of his injuries, Mr
Dlwathi would have to use a hearing aid to compensate for his
hearing
loss and to undergo extensive surgery to his jaw. On Mr Dlwathi’s
version, his practice suffered as briefs from attorneys
dwindled,
causing him to close his practice and to resign from the Johannesburg
bar during 2009. He ascribed this to the ongoing
psychological and
psychiatric effects of his ordeal, including loss of both memory and
concentration, intolerance, impatience and
irritability,
sleeplessness and significant depression.
[6]
The court below found that the evidence adduced proved that Mr
Dlwathi suffered from ‘severe and/or major clinical depression
. . . .’ It, however, found the probabilities evenly balanced
in respect of his alleged post-traumatic stress disorder and
found
against him on this aspect. The court below accepted that his
depression was chronic and that the prognosis in that respect
was
poor.
[7]
After a consideration of the common cause and proved facts as well as
awards in comparable cases, the learned judge awarded
a globular sum
for pain, suffering, disfigurement and the loss of amenities of life
in the amount of R675 000. As stated,
this is the only remaining
issue before us.
[8]
It is well established that an assessment of an appropriate award of
general damages (sometimes also referred to as non-pecuniary
damages)
is a discretionary matter and has as its objective to fairly and
adequately compensate an injured party (see
Protea Assurance Co
Ltd v Lamb
1971 (1) SA 530
(A) at 534H-535A and
Road Accident
Fund v Marunga
ZASCA (144/2002)
[2003] ZASCA 19
;
2003 (5) SA 164
(SCA) para 23). An appellate court will interfere with an award for
general damages in instances of a striking disparity between
what the
trial court awarded and what the appellate court considers ought to
have been awarded (
Protea
at 535A;
Marunga
para 23). It
will also interfere where there has been an irregularity or
misdirection (
Minister of Safety and Security v Scott &
another
ZASCA (969/2013)
[2014] ZASCA 84
;
2014 (6) SA 1
(SCA)
para 42). A misdirection might sometimes appear from a court’s
reasoning and in other instances it might be inferred
from a grossly
excessive award (
Minister of Safety and Security v Kruger
ZASCA
(183/10)
[2011] ZASCA 7
;
2011 (1) SACR 529
(SCA) para 27). In the
course of her judgment, the learned judge in the court below made the
following remarks:
‘
.
. . the court
is of the view that the time has come to distinguish those cases,
such as this one, where damages incurred arise out
of an unwarranted,
callous attack and violation that goes beyond the bounds of
legitimate law enforcement to clearly signal that
such conduct will
not be tolerated. The defendant and the plaintiff cannot both be
embraced under the same cloak when weighing
considerations of what is
just and fair regardless of the circumstances of the case.
’
[9]
In my view the learned judge misdirected herself by introducing a
punitive element in the award of general damages so as to
deter the
kind of unlawful conduct to which the police subjected Mr Dlwathi. It
should be borne in mind that general damages are
awarded for bodily
injury, which includes injury to personality. Its object is to
compensate loss, not punish the wrongdoer. If
it were otherwise
awards would be made even where no loss is suffered. It is apparent
that this misdirection resulted in the learned
judge making what I
regard as an excessive award.
[10]
The amount of R675 000 for general damages, therefore, does not
accord with awards in comparable cases. While there is
no hard and
fast rule, some guidance may be derived from comparable cases in
assessing general damages (
Protea
at 535B–536B). Mr Dlwathi must be compensated for the pain and
suffering (both physical and mental) he had to endure, as
well as for
his loss of the amenities of life and disfigurement from permanent
minor facial scarring. It is plain that, while he
has not been
rendered unemployable (he now works for the Department of Justice as
a senior State advocate in a specialised unit
of the prosecutions
branch), he will not be able to pursue his first career choice as an
advocate in private practice. His emotional
well-being has been
seriously compromised and his major depressive disorder is in all
probability of a permanent nature. At the
very least, the prognosis
for treatment of that disorder is poor.
[11]
In supporting the award made by the court below, counsel for Mr
Dlwathi referred us to a number of what he contended are comparable
cases. These range from cases involving dental and facial injuries to
head injuries with associated anxiety and mood disorders
and to those
involving the violation of dignity and reputation. It is axiomatic
that no two cases are exactly the same. I do not
deem it necessary to
trawl through all the authorities cited by counsel. Since the
emphasis during oral argument was on the last
mentioned category of
cases (involving, amongst others, head or brain injuries), it will
suffice to consider only some of those.
[12]
The awards in those cases were significantly higher than the awards
in the other categories of cases referred to, no doubt
due to the
significant brain injuries in all of them. In this regard, while it
is certainly not conclusive, it is of considerable
significance that
the cases relied on most heavily by Mr Dlwathi’s counsel are
all categorized under ‘very severe brain
damage’ in M M
Corbett and D P Honey
The
Quantum of Damages in Bodily and Fatal Injury Cases
Vol VI (2013) (C & H). Mr Dlwathi did not sustain any brain
damage as a consequence of the unlawful assault. It is, however,
common cause that his psychiatric and psychological deficits are the
sequelae of the assault perpetrated on him. I next consider
some of the cases cited by counsel.
[13]
First there is
Torres
v Road Accident Fund
(C & H Vol VI at A 4-1) where an amount of R600 000 was
awarded as general damages in 2007, which equates to R1 025 000
in present day value. There the plaintiff had, however, suffered,
amongst other injuries, a severe diffuse brain injury with
significant
neuro-cognitive and neuro–behavioural deficits. In
Raupert v Road
Accident Fund
(2153/2008) [2011] ZAECPEHC (1 February 2011]; (C & H Vol VI at A
4-52) the plaintiff had sustained, amongst other injuries,
a very
significant head injury consisting of extensive fracturing of the
skull with bifrontal lobe contusions, subarachnoid haemorrhage
and
generalised brain oedema. She was awarded R750 000 as general
damages in 2011 – R949 000 in today’s monetary
terms. In
Smit v
Road Accident Fund
(24883/2008)
[2012] ZAGPPHC 294 (16 November 2012); (C & H Vol VI at A 4-188)
an amount of R650 000 was awarded for general
damages in 2012
(present day value: R779 000) for a moderate to severe organic
brain syndrome with associated frontal lobe
symptomatology and
post-traumatic epilepsy as well as a fractured right femur. A similar
award was made in that same year (2012)
in
Potgieter
v Road Accident Fund
(2416/05) [2012] ZAECPCHC 99 (18 December 2012) (C & H Vol VI at
A 4-195) for a severe head injury comprising a traumatic brain
injury
with considerable frontal lobe dysfunction and other soft tissue
injuries and lacerations of the scalp.
[14]
The most recent award referred to is
Mofokeng
v Road Accident Fund
(11101/2009)
[2014] ZAGPJHC 160 (1 July 2014) (C & H Vol VII at B 4 –
12) where the plaintiff had been awarded R700 000
for general
damages (present day value R772 000) for a moderately severe
head injury and soft tissue injuries to the neck
and lower back. The
brain injury was referred to as a diffuse rotational shear injury,
characterised by an effective disconnection
between the frontal lobes
and the rest of the brain.
[15]
It is readily apparent that the cases discussed above do not lend
much assistance in assessing what the fair and adequate compensation
in this case should be. They all involve moderate to severe head and
brain injuries arising from motor vehicle accidents. This
is not the
case here. – Mr Dlwathi’s deficits are the effects of the
indignity and humiliation of an unlawful public
assault. He did not
sustain any brain injuries as a result of the assault. In deciding
what an appropriate award would be to provide
some solace to him and
to compensate him for the pain and suffering, disfigurement and loss
of the amenities of life, one will
have to have regard to cases which
are ‘broadly similar in all material respects’ (per Van
Blerk JA in
Marine
and Trade Insurance Co Ltd v Goliath
1968
(4) SA 329
(A) at 333G). These cases will deal with separate areas of
similarity to the present instance.
[16]
I start with
Van der
Merwe v Minister van Veiligheid en Sekuriteit en ander
(716/07)
[2009] ZANCHC 72
(27 November 2009]; (C & H Vol VI at K
2 – 1). There a 63 year old successful building contractor had
been unlawfully
arrested and detained in police custody for two and a
half hours. As a result he was severely traumatised and had to
undergo psychological
and psychiatric treatment, without success. He
presented with symptoms of depression and symptoms typically
associated with post-traumatic
stress disorder. He was awarded
R25 000 in 2009, which equates to R32 000 in present day value.
[17]
In
Sokombela v
Minister of Safety and Security
(C & H Vol V, G6–1), the plaintiff had sustained a
fractured mandible, laceration of the tongue, soft palate and lower
lip and the destruction of two lower teeth (which subsequently had to
be removed) after a bullet from a firearm had struck him
behind the
right ear and had exited through his mouth. Although these injuries
are similar to those sustained by Mr Dlwathi, they
are considerably
more severe. In that instance the plaintiff was awarded R70 000
for general damages in 2003 (presented day
value: R134 330).
[18]
An assessment of appropriate general damages with reference to awards
made in previous cases is, as Nugent JA observed in
Minister
of Safety and Security v Seymour
(295/05)
[2006] ZASCA 71
;
2006 (6) SA 320
(SCA) para 17, ‘fraught
with difficulty . . . (t)he facts of a particular case need to be
looked at as a whole and few cases
are directly comparable . . .
(t)hey are a useful guide to what other courts have considered to be
appropriate but they have no
higher value than that’.
[19]
After careful consideration and having regard to the physical and
emotional sequelae of the assault upon Mr Dlwathi (in particular
the
poor prognosis in respect of his depression), I am of the view that
an award of R200 000 for general damages will be fair
and
adequate compensation in this case. In arriving at this amount I have
derived some guidance from the awards made in
Van
der Merwe and Sokombela,
above
.
[20]
It is necessary to say something briefly about the manner in which
the trial was conducted by the Minister’s legal
representatives.
During the course of the proceedings counsel for the
Minister made a number of concessions and agreed that joint minutes
and written
reports of various experts would be admitted as evidence.
These concessions and agreements resulted in the contents of joint
minutes
and/or written expert reports becoming common cause.
Inexplicably though, the Minister’s new legal team on appeal
sought
to challenge, in their main heads of argument, some of these
agreed facts and contended that Mr Dlwathi’s failure to call
some of these experts to adduce evidence at the trial, should be held
against him. They however, abandoned this stance in their
supplementary heads of argument. One of the issues which then became
common cause was the fact that Mr Dlwathi suffered from depression
as
a consequence of the assault. The concession on behalf of the
Minister in this regard is surprising as the evidence adduced
by Mr
Dlwathi on his aspect was not too strong. In the main, that evidence
emanated from Dr Larry Grinker, a specialist psychiatrist
called by
Mr Dlwathi. But Dr Grinker’s conclusions appear to a large
extent to be based on Mr Dlwathi’s own narrative
of the
symptoms of his depression. There was no corroboration to
support this diagnosis. Mr Dlwathi’s own narrative
of his
depression in its various forms appears doubtful or, at best for him,
exaggerated. He testified that, as a result of the
assault, he felt
despondent, lost and downcast and had lost his confidence and
self-esteem. As a result he gave away his briefs,
remained at home
for some time and, upon his return to practice, battled to
re-establish what he claimed used to be a flourishing
junior
advocate’s practice. Eventually he said he resigned from the
Bar and closed his practice.
[21]
In my view the concession that Mr Dlwathi ‘manifested symptoms
of depression’ and, more importantly, that there
was no need to
adduce the evidence of experts (other than Dr Grinker) on this aspect
of Mr Dlwathi’s case was incorrectly
made. The manner in which
this and other concessions were made caused the trial Judge some
exasperation, quite understandably so.
As a result of this
ill-considered concession, the fact of Mr Dlwathi’s
questionable depressive disorder and, to a lesser
extent, the precise
gravity thereof, largely fell away as an issue at the trial. There
was also a lack of clarity on the part of
counsel who appeared for
the Minister in this court regarding the computation of the past and
future loss of earnings, which they
initially sought to challenge
before us. This difficulty was largely due to a small but important
part of the record not having
been transcribed. Counsel for the
Minister, however, accepted the correct state of affairs as explained
in this court by Mr Dlwathi’s
counsel (who had also appeared
for him at the trial). As a consequence, the Minister’s
challenge to the awards for past and
future loss of earnings, was
eventually abandoned before us.
[22]
Lastly, there is the question of costs in this court and the punitive
costs award made by the trial judge. As to the former
– while
the Minister has attained some success on appeal as far as the
significant reduction in the amount of general damages
is concerned,
that was a relatively minor part of the case in the court below and
before us. The larger part of the claim concerned
past and future
loss of earnings and it took up most of the time at the trial. That
was also the case in this court until the appeal
on these aspects was
abandoned in the circumstances outlined above. The appellant’s
rather limited success in this court
requires in my view an order for
costs in the respondent’s favour. With regard to the costs in
the court a quo, the learned
trial judge made a punitive costs order
on an attorney and own client scale against the Minister. In
exercising her discretion
in this regard, the learned trial judge
took into account the following factors:
(a)
‘her disquiet and dismay at the poor conduct of the matter
which led to inordinate
delays, adjournments and a failure to narrow
the issues timeously through the pre-trial conference processes
provided for in the
Rules of Court’;
(b)
the numerous ad hoc agreements and pre-trial conferences in the
course of the hearing as
a consequence of the laxity on the part of
the Minister’s legal team;
(c)
during the trial expert witnesses had not been provided with relevant
information
and reports by the Minister’s legal
representations, adversely affecting the calling of witnesses and the
duration of the
trial;
(d)
the unseemly and unprofessional conduct, leading to inordinate delays
in the prosecution
of the dispute.
The
difficulties enunciated above are borne out by the record. There are
no grounds to interfere with the discretion exercised in
this regard.
[19]
The following order is made:
1
The appeal is upheld in part.
2
Paragraph 1 of the order of the court below is set aside and
substituted
with the following:
‘
The
Defendant is to pay the Plaintiff the sum of R200 000 for
general damages.’
3
The appellant is ordered to pay the respondent’s costs of
appeal.
________________________
S A
MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For
Appellant:
M Khoza SC and Z Gumede
Instructed
by:
State Attorney, Johannesburg
State
Attorney, Bloemfontein
For
Respondent:
M van den
Barselaar
Instructed
by:
Joe Hubbart Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein