---

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

 

 

                                                                             ECJ:

 PARTIES:                  KHUSELO SIXAM                                           Appellant

                                             And

                                       THE STATE                                     Respondent

           

• Registrar:       CA 112/2009

• Magistrate:

• High Court:    EASTERN CAPE HIGH COURT, GRAHAMSTOWN

 DATE HEARD:                    13/08/10             

DATE DELIVERED:     28/10/10

 JUDGE(S):               DAMBUZA J, BESHE J

 

LEGAL REPRESENTATIVES –

 

Appearances:

for the Appellant(s):                ADV: P E Jooste

for the Respondent(s):                       ADV: G Wolmarans

 

 Instructing attorneys:

 for the Appellant(s):               MESSRS NEVILLE BORMAN & BOTHA

 for the Respondent(s):           WHITESIDES ATTORNEYS

 

CASE INFORMATION -

         Nature of proceedings    :          DAMAGES

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

	Case No.: CA112/2009
Date heard:13 August 2010
Date delivered: 2010
In the matter between:
KHUSELO SIXAM	Appellant
and
THE MINISTER OF SAFETY AND SECURITY	Respondent

Keywords

- damages – unlawful arrest and detention – assault by police dogs – admission – quantum of general damages in plea – agreement by attorneys on quantum of general damages – whether agreement valid and magistrate bound thereby – agreement not valid.

J U D G M E N T

DAMBUZA, J:

1. This is an appeal against an award of R30,000.00 made by the magistrate Port Elizabeth in favour of the appellant in a claim instituted by the appellant against the respondent for damages arising from the appellants arrest, detention and assault by members of the South African Police Services.

2. At the hearing of the appeal there was also, before us, an application by the appellant for condonation of the late prosecution of the appeal and the late filing of the Record of Appeal. The appellant further sought an order that his attorney be allowed, at the hearing of the appeal, to lead further evidence relating to an agreement concluded between his and the respondent’s attorneys regarding the quantum of general damages suffered by the appellant as a result of the conduct of the police officers. According to the alleged agreement the parties had agreed, subsequent to oral evidence being heard at the trial, that written Heads of Argument would be filed and that such Heads of Argument would only relate to the merits of the appellant’s claim, as the defendant had conceded the quantum of both the general and special damages claimed by the appellant.

3. A third application before us is a counter application by the respondent in which he seeks to amend his plea by withdrawing an admission to the amount of damages set out in the summons as having been suffered by the appellant. In paragraph 16 of the plea the respondent admits an allegation in the summons that “as a result of the injuries caused by the dog bite, the plaintiff suffered damages in the amount (of R85,000.00)”.

4. To place the appeal and related proceedings in perspective it is necessary to set out the background thereto, including the common cause facts and the pleadings that served before the magistrate. It was common cause or not in dispute before the magistrate that on 8 October 2004 the appellant and some friends were at a (night) “Club” known as “Kwaito” in Parliament Street, Port Elizabeth when an altercation ensued between the appellant and his friend Teko on one hand and an unnamed lady on the other hand. The argument between the three related to theft of the appellant’s cellphone. It started inside the club premises and continued onto the street outside. As a result thereof members of the police services came to the scene. An argument ensued between the appellant, Teko and the police officers. At some stage, the police sprayed Teko and the appellant with pepper spray. The appellant was bitten by a police dog which had come onto the scene with one of the police officers. He sustained injuries as a result of the attack on him by the police dog. He was taken to a doctor by the police and thereafter was detained at the Humewood Police Station and later appeared in Court. Subsequent to his release from police custody he was admitted to St Georges Private Hospital where he remained for a period of about a week being treated for his injuries.

5. In his judgment the magistrate found that the assault on the appellant was unlawful. No specific finding was made in the magistrate’s judgment on the lawfulness of the arrest and detention of the appellant. He however stated in his judgment that he did “not think it was proper for defendant’s (respondent’s) witnesses to arrest the plaintiff (appellant)”. In the order he awarded damages for “wrongful assault and arrest as well as subsequent detention”.

6. In the summons the plaintiff had claimed a total amount of R99,552.57, comprising of general damages of R85,000.00 and special damages of R14,452.57 (being R578.60 paid to Dr AJ Hillock for consultation and payments amounting to R13,973.97 paid at St Georges Hospital).

7. The record reveals that during the trial and after the appellant had led evidence the parties reached an agreement that the respondent would pay the special damages of R14,553.47 incurred by the appellant. The appellant contends that the respondent made a similar concession in respect of the quantum of general damages and that all that was before the magistrate for determination was the merits of the arrest, detention and assault claim.

Condonation of Late Prosecution of the Appeal and the Late Filing of the Record of Appeal

8. Ms Alida Malherbe of the appellant’s correspondent attorneys details the history of the appeal from receipt of instructions by their firm on 16 April 2009. She explains that the delay in both the prosecution of the appeal and the filing of the record resulted from the delay by relevant functionaries in the magistrate’s court in transmitting the record to the Registrar of this Court. This application is not opposed and I am satisfied that the appellant and/or his legal representatives were not negligent in this regard.

Application to lead further evidence and counter-application to amend the plea

9. It is conceded in the respondent’s Heads of Argument that Mr Breytenbach, the attorney of record for the respondent (in the office of the State Attorney) in the appeal, being the same attorney who represented him in the Court a quo, may have led the appellant’s attorney to understand that the respondent was admitting the amount of R85,000.00 as the general damages suffered by the appellant as a result of the conduct of the police. Such concession however, it is contended on behalf of the appellant, was not intended.

10. The appellant’s attorney Mr Deon Van Vollenhoven states in the founding affidavit that on 7 May 2007 viva voce evidence was led in the matter and at the conclusion thereof the matter was postponed for argument. On obtaining a date for argument he telephoned Mr Breytenbach who “confirmed that submissions would only be made on the merits as the quantum had been conceded” by the respondent. This was subsequently confirmed in a letter dated 4 February 2008 written by Mr Van Vollenhoven to Mr Breytenbach and a written response thereto dated 6 February 2008 by Mr Breytenbach. Written submissions were indeed made to the magistrate only on the merits of the case and the judgment by the magistrate on both the merits and quantum followed.

11. The respondent does not oppose the application to lead further evidence. Mr Breytenbach refers to amendments made to the summons and plea after the commencement of the trial and states that at the commencement of the trial both the merits and the quantum of the appellant’s claim were in dispute. After oral evidence was led by both parties further amendments were effected to the particulars of claim. However, it would appear, the respondent never filed an amended plea. Mr Breytenbach states in the counter-application that the error in the plea (the admission to quantum of damages) may have been caused by pressure on him to finalise this matter before Christmas. (The plea is dated 24 December 2006). He states that he never had authority from his client to concede (to) the quantum of general damages. Hence the respondent now wishes to amend his plea in as far as he admitted quantum of general damages.

12. I am of the view that both the evidence which the appellant seeks to lead on appeal and the amendment to the plea sought will serve no purpose. There is no dispute on the papers on the content of the communication between Mr Van Vollenhoven and Mr Breytenbach. To this extent the respondent admits that an impression may have been conveyed that the respondent had conceded the quantum of general damages allegedly suffered by the appellant. But I am not satisfied that there was, on the admitted facts regarding the communication between the parties’ respective attorneys and the pleadings, an unequivocal admission of the quantum of general damages. I say so because both the particulars of claim and the plea that served before the magistrate are, in my view, vague insofar as:

1. the appellant alleges, in paragraph 9.1 of the particulars of claim, that he suffered R85,000.00 for unlawful arrest and detention and the assault (to which the respondent pleads no knowledge and demands proof); and

in paragraph 9.3 the appellant alleges that he suffered the R85,000.00 as a result of being bitten by a police dog (which the respondent admits).

13. It is therefore not clear in my view whether the R85,000.00 claimed as general damages was claimed in respect of the arrest, the detention and the assault or only for the assault. Further, the respondent, having earlier denied the quantum of R85,000.00 claimed as general damages suffered by the appellant, he admits it when claimed as damages for the assault.

14. In the court a quo neither the parties nor the court referred to this ambiguity in the pleadings. But at this stage these defects cannot, in my view, be cured by the leading of evidence or amendment of the plea. Nor can the difficulties arising therefrom be solved by resorting to the alleged agreement. Perhaps a valid agreement regarding the quantum of general damages could have been concluded if the terms of the agreement were clear as to the amount agreed to and the portions of the claim to which it related, rather than simply an agreement “on quantum of general damages”.

15. Further the explanation by Mr Breytenbach that the respondent omitted to plead to the amended summons resonates with the ambiguity in the plea. So does the fact that the trial was conducted as if there was no admission of general damages. At the trial relevant evidence was led detailing the severity of the assault, the nature of the injuries sustained by the appellant and the period spent by him in hospital.

16. In his reasons for judgment the magistrate states that “there was no agreement between the parties regarding the quantum of general damages. The only agreement in this matter was for special damages for the amount of R14,552.57 which amount was awarded to the plaintiff. Paragraph 8 of the plaintiff’s Heads of Argument is misleading as there was no such agreement for general damages.” Although the magistrate is not entirely correct in this regard, to an extent, one can understand his view that no agreement was reached on the quantum of general damages.¹ When agreement was reached on special damages the agreement was pertinently brought to the attention of the magistrate and duly recorded. The agreement relating to the quantum of general damages was concluded at a later stage; initially over the telephone when the matter stood adjourned and when the parties’ respective attorneys were at their respective offices. In this regard Mr Van Vollenhoven states that:²

“20. I informed him that a date had been obtained, being Friday, 14 March 2008, as a further date for the hearing of the matter in essence to deal with argument. He furthermore confirmed with me that the matter would be argued on the merits as the quantum had been conceded by the Respondent.

21. I recorded this telephone discussion in a letter dated 4 February 2008, a copy of which is annexed hereto, marked “DV1”.

21. Mr Breytenbach responded to the aforementioned letter, on 6 February 2008. A copy of his letter is annexed hereto, marked “DV2”. In this letter Mr. Breytenbach expressly states the following:

‘The date, 14 March 2008, is suitable. It is also confirmed that the matter will be argued on the merits only, since the Defendant has conceded the quantum as amended.’”

17. I can only conclude from the above allegations that the agreement was premised on the pleadings. Prior to this stage no mention is made in the record of the admission to quantum of general damages (apart from the admission in the plea that I have already referred to above).

18. As I understand the appellant’s case the magistrate was advised of the admission or agreement in the Heads of Argument. But even in the appellant’s Heads of Argument in the trial Court the agreement is referred to only in vague terms. Mr Van Vollenhoven states in his affidavit that:

“24. …It is expressedly stated in paragraph 8 of the written Argument that an unlawful assault had been perpetrated and that the Applicant was entitled to be compensated in the amount as agreed upon.

25. Paragraph 12 of the written Argument reiterates this agreement.

25. Mr Breytenbach, who filed written Argument on behalf of the Respondent, did not refer to this issue at all in his written argument.”

19. In paragraphs 8 and 12 of the appellant’s written Argument, the following submissions are made:

“8. In this regard it is submitted that the plaintiff has established an unlawful assault on him and is entitled to be compensated in the amount as agreed upon, to wit R99,552,57.”

“12. Lastly, the conduct of the animal caused the Plaintiff damage. It is quite apparent on all versions that the Plaintiff was in fact fairly severely injured and in this regard quantum had been agreed upon.”

Indeed no reference is made in the respondent’s written argument to the agreement on general damages.

20. The submission in the appellant’s written argument in the trial court that an amount of R99,552.57 was agreed on is inconsistent with the appellant’s case before us. Further, according to this submission the amount of R99,552.57 relates to the unlawful assault on the appellant. Nowhere in the parties written argument in the trial court are submissions made on the issue of unlawful arrest and detention. The first submission made in the appellant’s written argument is that, “The Plaintiff instituted action against the Defendant for damages as a result of an assault on the Plaintiff on 9 October 2004”.

21. It seems that at some stage in the proceedings or at least when the attorneys prepared the written argument, the plaintiff’s claim for unlawful arrest and detention got forgotten. Perhaps it is for these reasons that in his judgment (apart from the order) the magistrate mainly considers the assault portion of the appellant’s case.

22. The appellant relies, in the main, for his submission that the magistrate was bound to give effect to the agreement concluded between the parties on MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruisenga & Another 2008 (6) SA 264 (Ck); 2010 (4) SA 122 (SCA). But Kruisenga’s case is in my view distinguishable from this appeal and does not support the appellant’s case before us. In Kruisenga’s case concessions were made at a pre-trial conference where legal representatives are assumed to have authority to make to compromise claims and consent to judgments. Further, the terms of the undertaking made by the legal representative (to pay the amounts claimed under certain heads of damages) In Kruisenga’s case were clear and unambiguous. Even further, the concessions in Kruisenga’s case were confirmed by counsel in an open Court and consequently made an order of Court. The Supreme Court of Appeal then held that the High Court was correct in holding that the appellant was estopped from denying the authority of the State Attorney to enter into the agreements under contemplation.

23. Subsequent to the hearing of the appeal we invited counsel for both parties to make further submissions on the terms of the alleged agreement concluded (or concession) relating to the quantum of general damages; specifically as to what portion of R85,000.00 was in respect of arrest and detention on the one hand and the assault on the other hand. Counsel have filed a joint submission in this regard to the effect that the parties respective attorneys did not give attention to specific proportions constituting the claim of R85,000.00. Had they applied their mind to the issue, so it was submitted, they would have, based on the period (six to eight hours) for which the appellant was kept in police custody and past awards made in similar cases, suggested R25,000.00 as a fair and reasonable award for the appellant’s damages for unlawful arrest and detention. From the joint submission made by counsel for the parties I can only conclude that the attorneys themselves did not apply their mind to the terms of the purported agreement, particularly in relation to the claim contained in the summons and the plea there to. I am therefore not persuaded that a valid agreement regarding the quantum of general damages was concluded on behalf of the parties. Even if it had been, the magistrate could not have given effect thereto in the circumstances.

24. Be that as it may the proper procedure for the magistrate to follow was to invite submissions from the parties attorneys on the quantum of general damages prior to awarding damages. His failure to do so constituted, in my view, an irregularity which entitles this Court to reconsider these issues afresh.³ In his judgment the magistrate merely states that: “As far as general damages is concerned, an amount of R30,000.00 will be appropriate”. He gives no indication as to what factors he considered in his assessment of damages. For this reason we invited counsel to make submissions on the issue of the quantum of general damages.

25. It has been said that there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge’s view of what is fair in the circumstances of the case.

26. Counsel for the parties referred us to a number of cases in which damages were unlawful arrest, detention and assault, particularly dog bites.⁴ I do not intend setting out the facts and comparative aspects in each of those cases in this judgment. I have, however, considered them as guidelines in determining the appropriate or reasonable award in this case.

27. A medical report prepared by Mr A.J. Hillock, a surgeon practicing from the St George’s Medical Suites in Port Elizabeth, on the injuries sustained by the appellant forms part of the record. It is recorded therein that the appellant sustained multiple lacerated wounds, five of which were above the knee, three below the left knee, two around the left ankle, one on the right thumb, three on the dorsal aspect of the left wrist and two on the palmer aspect of the right wrist. Many of these lacerations were deep and required suturing. It is further recorded that at the time of the medical examination the appellant was in a lot of pain and would experience severe pain for a few days, but this would gradually improve over the 14 days following the assault. Although the appellant was traumatized by the attack, but the trauma would not, according to Dr Hillock be permanent or long term. The wounds all healed well but left scars on the appellant’s hands and legs. Photographs depicting the injuries sustained by the appellant also form part of the record. There had been no nerve or tendon injuries and no long term problems were envisaged. Photographs depicting the injuries sustained by the appellant also form part of the record. I also consider relevant the fact that the appellant was kept in detention in the injured state whilst he was in a lot of pain. At the time of the assault the appellant was 20 years old and was a third year student at the Nelson Mandela Metropolitan University. He was arrested in the early hours of the morning and kept in police custody for about eight hours.

28. My view is that an amount of R40,000.00 would be reasonable as general damages in respect of the assault by the police on the appellant. As I have already stated, counsel for both parties are of the view that an amount of R25,000.00 would be fair and reasonable for the appellant’s damages for unlawful arrest and detention. I agree. This Court has made similar awards in comparable matters. (See Minister of Safety and Security v Van Der Merwe CA 18/07, a decision of this Court handed down on 22 August 2008; Stoltz v Minister of Safety and Security, Case No.: 3114/04, an unreported decision of this Division delivered on 19 January 2006).

29. The appeal therefore succeeds and the following order is issued:

1. The late prosecution of the appeal and the late filing of record on appeal is condoned;

The application to lead evidence on the agreement concluded by the parties’ legal representatives is dismissed with costs;

The counter application by the defendant to amend the plea is dismissed with costs;

The order of the magistrate is altered to read thus:

“There shall be judgment in favour of the plaintiff for;

1. Payment of R25,000.00 for unlawful arrest and detention.

Payment of R40,000.00 for wrongful assault.

Interest on the aforesaid amounts at 15,5% per annum from a date 14 days after the date of this judgment to date of payment.

2. Costs of Suit.”;

2. The respondent shall pay the appellant’s costs of the appeal.

_________________________

N. DAMBUZA

JUDGE OF THE HIGH COURT

BESHE, J:

I agree.

_________________________

N.G. BESHE

JUDGE OF THE HIGH COURT

Appearances:

For the appellant: Adv P.E. Jooste

For the respondent: Adv G. Wolmarans

---