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[2018] ZAECGHC 80
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Syed v Metaf Limited t/a Metro Cash & Carry (CA356/2016) [2018] ZAECGHC 80 (13 March 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION - GRAHAMSTOWN
Case No.: CA356/2016
In the matter between:
SHAHIN SYED Appellant
And
METAF LIMITED
t/a METRO CASH & CARRY Respondent
JUDGMENT
REVELAS J:
Introduction:
[1] This appeal, with leave of the court a quo, is against certain orders made with regard to the appellant's claim for damages and costs orders made against the appellant on 31 May 2016.
[2] The damages claimed by the appellant arose from his arrest, detention and subsequent prosecution at the instance of the respondent. On 13 January 2013, in an earlier trial hearing on the merits, which had been separated from the quantum, Plasket J found for the appellant and held that the respondent was liable to compensate the appellant for any damages he may prove, having found that the arrest and the detention was wrongful and the prosecution was malicious.
[3] The respondent is a supplier of consumable goods at various locations in the country and the appellant was a client of the respondent, from whom he bought stock for his stores. The appellant had purchased several goods on a continuous basis, on credit, from the respondent. It was common cause between the parties that on 2 December 2005, in the afternoon, the 28-year-old appellant was present in the respondent's Mthatha branch store. The respondent's branch manager engaged the appellant in conversation in his office. In the interim, the police had been summonsed and, whilst still in the office of the branch manager, members of the South African Police Services arrived and arrested the appellant. The arrest was carried out at the behest of the branch manager who laid theft charges pertaining to the appellant's unpaid credit account with the respondent. The appellant had stopped a cheque in favour of the respondent in August 2005. After his arrest the appellant was detained in police custody from his date of arrest, 2 December 2005, until his release on bail on 6 December 2005. Thereafter the appellant was obliged to appear in court on 24 February, 25 April, 27 July and lastly, on 15 September 2006, when the theft charge was withdrawn.
[4] The appellant subsequently instituted an action for damages against the respondent. In his amended particulars of claim the appellant alleged that as a result of the wrongful arrest and detention, he suffered from a post-traumatic stress disorder, a panic disorder associated with agoraphobia and a major depressive disorder. As a result of these psychiatric injuries, the appellant alleged that he was no longer employable in the open labour market and that he had been left with no residual earning capacity. In addition, he alleged that as a result of the unlawful arrest detention and malicious prosecution, his business partners absconded from their posts at his stores which were consequently looted. The appellant contended that the respondent's conduct also caused his marriage to break down and that as result, his wife left him in 2006 to take up employment in the United Kingdom, taking with her their only child, a daughter. He hardly has any contact with his daughter since their departure. As a result of all the aforesaid psychiatric injuries and traumatic events the appellant claimed he suffered the following damages:
(i) Legal Expenses R 30 000.00
(ii) Hospital Expenses R 7 206.48
(iii) Future Medical Expenses R 439 090.00
(iv) General Damages R1 200 000.00
(v) Loss of Income R8 823 600.00
[5] The respondent, in its pleadings, denied the quantum of the damages claimed in general, putting the appellant to the proof thereof. The respondent also moved for an amended plea, wherein it challenged the foreseeability of several of the events, such as the looting at his shops, the the fact that his store managers left, the breakdown of his marriage and the appellant's inability to continue to conduct business. The respondent pleaded that the aforesaid events were not "reasonably foreseeable and causatively connected to the wrongful conduct of [respondent]". The respondent further challenged the appellant's alleged inability to recover from his psychiatric injuries and the appellant's assertion that he was unemployable in the open labour market, and that the appellant's businesses were run profitably by him.
[6] Approximately half of the time the trial lasted was taken up by the evidence relating to the appellant's claim for loss of income. This claim was computed with reference to a calculation of all the appellant's alleged income he would have earned from his businesses for the rest of his life, had it not been for his unlawful arrest and detention and the malicious prosecution. The appellant’s claim for loss of income consisted of the following:
(i) A past loss of income R 1952 000.00
(ii) A loss of future income R6264 900.00
(iii) A past loss of fringe benefits R 372 100.00
(iv) A loss of future fringe benefits R 777 800.00
[7] The appellant's claim for a loss of income was dismissed on three main grounds. These were:
(a) The appellant failed to prove that the psychiatric and psychological injuries he suffered from rendered him unemployable, since his condition was treatable.
(b) The appellant failed to prove that all the sequelae of the aforesaid injuries were all attributable to his unlawful arrest detention and malicious prosecution.
(c) The dearth of reliable and proper financial records, or other acceptable information relevant to the appellant's income, precluded a finding as to what the appellant's income was or that he earned an income at all.
[8] In respect of the other claims for damages, the respondent was ordered to pay the following amounts to the appellant:
(i) R7 206.48 in respect of medical expenses;
(ii) Rl16 860.00 in respect of future medical expenses; and
(iii) R300 000.00 in respect of general damages.
[9] Orders were also made in respect of interest payable on the aforesaid amounts.
[10] The appellant abandoned his claim for legal expenses before the trial, and that claim was dismissed accordingly.
[11] The respondent also accepted liability for the medical expenses incurred by the appellant for his treatment at the Life St Mary's Hospital in the amount of R7 206.84. This amount awarded for past medical expenses is therefore not at issue in this appeal.
[12] Insofar as the claim for future medical expenses is concerned, the respondent conceded during argument at the appeal hearing that the learned trial judge erred in awarding the amount of R116 860.00, in that it was incorrectly computed, and that the amount that ought to have been ordered was R377 209.00. In the light of this concession the amount awarded in this regard is no longer an issue and the order of the court a quo should be amended accordingly.
[13] Several costs orders were also made. The costs orders that were appealed against were firstly, the orders that the appellant and the respondent pay half of each other's cost of suit, which included the respective qualifying expenses and witness fees incurred with regard to their expert witnesses upon whose testimonies the trial judge relied. Secondly, an order that the appellant pay the reserved costs of an earlier postponement on 5 August 2014, and thirdly an order that the costs of the actual application for the postponement brought by respondent be paid by the appellant. The primary reason for the two costs orders against the appellant was the fact that the postponement was sought after the appellant had just recently amended its particulars of claim, increasing his claim for a loss of income substantially. The order postponing the matter was eventually made by agreement between the parties. The trial judge reasoned that the postponement was sought to enable the respondent to prepare its defence in the light of the substantial increase in the amount claimed by the appellant for a future loss of earnings. Accordingly, the appellant was responsible for the postponement.
[14] What remains for determination by us in the appeal is whether or not to interfere with:
(a) the finding of the court a quo that the appellant had failed to prove that he suffered a loss of income and that was rendered permanently unemployable as a result of the respondent's unlawful conduct, and, if we find that he proved such a loss, and that his condition was permanent, to award an amount subject to an appropriate contingency deduction;
(b) the amount awarded for general damages on the basis that it was too low and the trial judge had misdirected himself, and to substitute that amount accordingly; and
(c) the orders for the wasted costs of August 2014, and the costs of the action on the basis that the court a quo did not act its discretion reasonably.
[15] Before dealing with the evidence and findings of the trial judge under this heading, it is convenient to first set out the relevant background facts which were placed before the court.
Background:
[16] The appellant came to South Africa from Bangladesh in 2000.
He persuaded the South African immigration officials that he was a refugee although this was untrue. He explained that he heard it was easier to enter the country as a refugee. The appellant is the son of an advocate. He held a BA degree and had been a businessman for about 5 years prior to the arrest in question.
[17] His first port of call in South Africa was Mthatha, where he worked for Mr Azar Khan as a store manager, before the latter sent him to Grahamstown where he started a clothing business. Thereafter he began a food outlet named "Grahamstown Take Aways" which he sold in 2004.
[18] After selling "Grahamstown Take Aways" the appellant moved back to Mthatha where he opened four trading stores. The same year, 2004, the appellant opened an account with the respondent and the following stores: "Kwantozonke" near Mqanduli was opened first, also in 2004. Thereafter, in 2005, he opened "Zandile" a store near Coffee Bay and Townview Store, also near Mqanduli. His fourth store had no name and was referred to as "No-Name" Store in the evidence. His fifth store was "Mtokwane" store was opened but this store closed down before the appellant's arrest apparently because it was looted.
[19] On 2 December 2005 the appellant was arrested and released on bail on 6 December 2005. The charges against him were only withdrawn on 15 September 2006 as referred to earlier.
[20] During June or July 2006 the appellant's wife left their common home with his young daughter and went to the United Kingdom where she sought employment.
[21] In the interim, and in the same year, the appellant was taken under the wing of his old friend, Mr Kahn who gave him a managerial position in his Zamakosi Store, after the appellant's businesses had collapsed.
[22] During October 2007 the appellant's divorce from his wife was finalised.
[23] During 2009 secondary psychological conditions developed on the appellant was hospitalised on two occasions in Mthatha at St Mary's Life Hospital, and later in two hospitals in Bangladesh and lastly one in Mdantsane.
[24] His trial on the merits commenced in 2010.
The Witnesses:
[25] Several witnesses were called to testify about the appellant's loss of income and his medical condition. With regard to the diagnosis of the appellant's present medical condition, the prognosis of his recovery, and the causal link between the conduct of the respondent and the aforesaid, the appellant led the expert evidence of Mr Mark Eaton, a clinical psychologist and Dr Helmut Erlacher, a psychiatrist. The respondent called Mr Willem Annandale, a clinical psychologist to testify on its behalf with regard to the aforesaid questions. All three of these expert witnesses had examined the appellant over several hours and prepared reports on their findings.
[26] The appellant was also examined by Dr Anita Padmanabhanunni, a clinical psychologist, and Professor David Edwards. Both prepared expert reports on the appellant's instructions. They were not called to testify, but their reports formed part of the court file and reference was made to them during the proceedings. Their reports were attached to the appellant's reply to the respondent's request for further particulars.
[27] With regard to the appellant's alleged pre-morbid and post morbid loss of income, the appellant testified on his own behalf and led the evidence of Dr H.J Van Daalen, (an industrial psychologist), Mr Azar Khan, (the friend of the appellant, for whom he worked after the closure of his business in 2005),and Mr Mark Edwards (a forensic accountant). The respondent led the evidence of one witness, Mr Wessel Greeff, a chartered accountant, on its behalf.
[28] The two clinical psychologists, Mr Eaton and Mr Annandale prepared a joint minute on 15 April 2015 recording the appellant's medical condition. It reads as follows:
"1. Mr Syed was apparently asymptomatic of any emotional disorders prior to the incidents of 2005.
2. He demonstrated significant emotional stability and fortitude, initiative and leadership skills.
3. Mr Syed was apparently asymptomatic of any cognitive and executive functioning disabilities prior to the incident of 2005.
4. He probably was of above average intellectual functioning by virtue of his academic and business achievements.
5. Mr Syed was apparently functioning well in his personal life, social life and his occupational life prior to the incidents of 2005.
6. Due to the incidents of his arrest, detention and prosecution in 2005 Mr Syed acquired Post-traumatic Stress Disorder.
7. In an apparent vicious cycle of cumulative sequelae, Mr Syed also subsequently acquired secondary Panic Disorder, Agoraphobia and Major Depressive Disorder. He also became symptomatic of sever cognitive and executive functioning disabilities, confirmed by his psychometric test results recently.
8. Due to the incidents of 2005 Mr Syed acquired low self-esteem, feelings of worthlessness and suffered somatic symptoms due to incident related sequelae. He also suffered severe personal losses, social losses and occupational losses that have persisted to date.
9. Mr Syed's presentation on clinical and psychometric evaluation excluded that he was malingering or falsely augmenting his symptoms."
[29] In the report the two experts also recorded their differences. Mr Eaton was of the opinion that the appellant was permanently psychologically and psychiatrically disabled and unemployable in the open labour market. Mr Annandale believed that the appellant's prognosis was positive and could be expected, with comprehensive treatment, to function "at a suitably high personal and social level" and to resume his career with two years.
[30] Dr Erlacher the psychiatrist called by the appellant, noted that the appellant had not complied with the prescriptions of drugs and that his disorder had became chronic, with a guarded, but positive prognosis after treatment for a period of two years. Dr Erlacher did not think that the appellant would be able to run his own business again, but opined that although the appellant might not necessarily function before, that he, after proper treatment he would be restored to sufficient health to be gainfully employed. A supportive wife and successful businesses could have improved this prognosis. He also expected the appellant to return to normal functioning and start to rebuild his life with proper treatment and the consequential remission of the Post-Traumatic Stress Disorder.
[31] The trial commenced 11 years after the incident. The appellant still suffered from Post-Traumatic Stress Disorder. By that time the secondary psychological disorders to the appellant's primary injury had also emerged. These were the Panic Disorder, Agoraphobia and Major Depressive Disorder referred to in the joint minute. According to Mr Eaton all four disorders were caused by the appellant's arrest, detention and prosecution. Dr Erlacher did not diagnose the Major Depressive Disorder as a separate disorder but rather regarded it as part of the Post-Traumatic Stress Disorder.
[32] The appellant's case was that these disorders caused him to be permanently psychologically and psychiatrically disabled and that he would never be employable on the open labour market and at best could only participate in sympathetic employment. This stance was supported and elaborated on in the testimonies of Mr Eaton and Dr HJ van Daalen.
[33] The trial judge held that the appellant's post-traumatic stress disorder was causally connected to his unlawful arrest detention and malicious prosecution but it was treatable. The secondary disorders and other events which occurred after the arrest were held to be causally too remote from the unlawful arrest, detention and malicious prosecution.
[34] During his testimony in court, Mr Annandale deviated from his recorded view shared with Mr Eaton that there was a causal link between the plaintiff's arrest and detention and all of the plaintiff's current psychological and psychiatric disorders in their joint minute in court. During his testimony Mr Annandale expressed the view that the plaintiff's disorders had developed gradually in an "overlapping sequence of events", such as the loss of this business, the breakdown of his marriage and subsequent loss of contact with his daughter. These events in turn, he opined, compounded the appellant's condition and that had "led to a gradual decline in functioning and caused them to become chronic". evidence. The trial judge accepted Mr Annandale's evidence.
[35] In summary, Mr Annandale was of the opinion that even though the post-traumatic stress disorder the appellant was suffering from could be attributed to his arrest and detention, he believed that the panic disorder, agoraphobia and major depression order were not necessarily linked to those incidents. In other words, not all the sequelae, such as the loss of his business, marriage and child or the onset of additional psychological conditions were caused by the appellant's experience of the arrest, detention and malicious prosecution. Mr Annandale also testified that the aggravation of the appellant's condition was a typical consequence of the trauma suffered by the appellant, but it was not inevitable.
[36] Mr Annandale explained that since signing the joint minute he gained some insight into the reality that expert opinion should be confined to the expression of opinion upon matters established as a fact and should guard against usurping the function of the court in any enquiry concerned with causation. As a result he modified his initial opinion.
[37] During argument in the appeal, the appellant described Mr Annandale's testimony insofar as it deviated from the joint minute, as a volte farce. The appellant submitted that the court a quo erred in finding that Mr Annandale's modification of his opinion was "appropriate" and that the later emerging disorders were not caused by the respondent's conduct and the development of secondary disorders as a result thereof was too remote.
[38] It was further argued by the appellant that Mr Eaton's so-called volte farce was not based on any sound reasoning, did not arise from any new facts, but was the "brain child of the [appellant's] legal representatives", who in their amended pleadings raised a special plea to that effect on the first day of the trial.
[39] The appellant submitted that Mr Annandale's volte farce was not in itself based on any sound reasoning or new facts, but based on a notion that the absence of inevitability rendered this development of secondary disorders too remote. It was argued that no right thinking person would consider that the respondent ought to be absolved form liability for damages related to these secondary disorders, simply because they are, "whilst not typical, not inevitable" (Mr Annandale's words).The court a quo was also accused of erring because it was "materially influenced" by Mr Annandale's volte farce.
[40] Although the appellant conceded that the test for causation was correctly set out in the judgment of the court a quo, it was submitted on his behalf, that the test was incorrectly applied to the evidence, the court having found that the later secondary disorders could not have been attributed to the respondent's conduct, on the basis that they were too remote. According to the appellant, the application of the
"laws empirical or common sense view" of causation would have resulted in a finding that the appellant had indeed established factual causation, also in respect of the later emerging secondary disorders.
[41] The appellant submitted that the trial judge gave no reasons for his finding that the later emerging disorders were too remote to be causally linked to the respondent's conduct. At this junction I may digress and point out that this was not only a finding of the court a quo, but its conclusion, prefaced by a particularly well-considered analysis of the evidence. Accordingly, the appellant's assertion in this regard is simply wrong.
[42] The appellant stressed that in order to establish causality, the appellant was not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably the cause for the loss. That calls for a "sensible retrospective analysis of what probably would have occurred based on the evidence", and what can be expected to occur "in the ordinary course of human affairs, rather than metaphysics".
[43] The trial court, with respect, did not indulge in metaphysics but indeed followed a common sense approach and conducted a sensible retrospective analysis of the evidence. It must be born in mind that psychiatry and psychology are not exact sciences. Common sense dictates that a court should follow a careful approach before attributing a whole host of diverse consequences and secondary conditions to one single event, based on the opinion of one expert, particularly if there are two other experts who hold a different opinion.
[44] In his judgment the trial judge criticised Mr Eaton in rather strong terms. The observations made by the trial judge regarding Mr Eaton, were inter alia, that he failed to mention any of the positive indications identified by Mr Annandale, that "his dogged adherence" to his own opinion and emphasised "only all the negative factors in the justification of his own opinion". It was also held that Mr Eaton's "unmotivated refusal to see any merit expressed by Dr Erlacher and Mr Annandale on the benefits to be derived from exposing the plaintiff to psychotherapy, was indicative of bias towards the maximisation of the plaintiff's claim". The learned judge found the bias in question to be destructive of any potential value in Mr Eaton's evidence as an expert and that he lacked independence in that regard.
[45] Mr Eaton eventually conceded that it was not possible to determine to what extent the arrest, detention, looting of his business and their collapse, the failure of the appellant's marriage and the loss of contact with his child caused or aggravated his condition. He also had to concede that the appellants failure to take his medication in accordance with its prescription probably had an adverse effect on him.
[46] An expert should provide a court with an objective and unbiased opinion based upon his or her expertise and should not act as a hired gun who dispenses an opinion for the purposes of a particular case. An expert witness should also state the facts and the assumptions upon which the opinion is based. See Schneider N.O. & Others v A A & Another 2010 (5) SA 203 (WCC) at 212 A-B where the following was also said:
"An expert does not assume the role of an advocate, nor gives evidence which is beyond the logic which is dictated by the scientific knowledge which that expert claims to possess"
See also: Michael & Another v Linksfield Park Clinic Ltd & Another [2002] 1 SA 118 (SCA) at [39]; Caswell Powell Duffryn Associated Calber Ltd [1939] 3 All ER 722 at 733 E - 9)
[47] If one has regard to Mr Eaton's testimony as a whole, the observations made about him by the court a quo were entirely justified. Mr Annandale, on the other hand, made concessions and gave his evidence in a consistent and logical manner. It is also an important factor that the appellant's other expert witness, Dr Erlacher, supported Mr Annandale's testimony with regard to the appellant's prognosis, which differed from Mr Eaton's opinion, although Dr Erlacher deemed the prognosis "guarded" as mentioned hereinbefore. The appellant's approach is that Mr Eaton's opinion was the only valid reasonable acceptable opinion. The evidence as a whole contradicts the soundness of that approach. I am in respectful agreement with the findings of the trial judge. In this regard it is important to note, also, that it is trite that a court, on considering an appeal should not interfere with the credibility findings of a trial court where the judge or magistrate was steeped in the atmosphere of the trial and had the advantage of personally observing and hearing the witnesses in question, unless an irregularity or misdirection has been committed. The judgment of the court a quo reveals a careful analysis of all the evidence. No misdirection was committed.
[48] The aforesaid findings of the trial judge also impacted on the appellants' claim for a loss of income and in this regards the appellant had to prove:
(a) the factual and causative links between his unlawful arrest, detention and malicious prosecution and the failure of his businesses, which was as a result of his employees or store managers absconding, and that his shops were subsequently looted;
(b) what he would have earned, if anything, if he continued to conduct his business and a determination of what he had in fact earned from his businesses and later employment.
Loss of Earnings:
[ 49] The appellant's claim for loss of earnings was based on an income as at the date of the incident, given as R136 319.00 per annum. The aforesaid amount and the basis of his claim was the financial statements prepared by Mr Douglas Martindale, the appellant's erstwhile accountant, who was not called as a witness.
[50] Mr Edwards prepared the appellant's claim for a loss of his pre incident earnings based on financial statements which were compiled for the 2003 - 2005 tax years and in addition a statement for the period ending December 2005 (the month of the arrest). This was a reconstruction. Unfortunately the lack of proper, reliable financial and other documentation pertaining to the appellant's businesses bedevilled his claim.
[51] The appellant and Mr Kahn gave evidence as to the factual basis for the claim.
[52] Several difficulties emerged from the appellant's evidence.
Some of the difficulties listed by by the trial judge in his judgment are set out below:
[53] Mr Edwards used the financial statements for the period ending on 31 December 2005. However, the appellant disputed this figure. He also did not know whether the financial statements were for all four stores combined or not. The appellant also disputed the mark-up figures on items sold in the appellant's trading stores, whereas Mr Edwards worked with these figures in concluding whether or not profits were mad in the stores in question.
[54] The appellant told Mr Edwards that he bought 80°/o of his stock for his stores from the respondent. In court the appellant testified that it was 60°/o. The appellant also contradicted himself as to the amount of stock in his stores when he checked on them after his release from prison. According to one version he did not go there for ten days. On another he went there on the day of his release. According to the testimony of Mr Edwards, and also the financial statements prepared for the period ending in December 2005, there was no stock in the appellant's Townview Store after the arrest. During his testimony in court the appellant said Townview Store was full of stock and no stock was removed.
[55] The appellant also stated during cross-examination that all his stores had closed before his arrest. Dr van Daalen however, stated that Ntokwane Store was opened after the unlawful arrest and detention.
[56] The appellant admitted that he concealed documentation pertaining to his stores in order to defraud the South African Revenue Services.
[57] The appellant had also worked for a Mr Amaar at the time he consulted with Mr Edwards, who noted in his report that the appellant intended working for Mr Amaar for the foreseeable future. This was not touched upon by the appellant when he gave evidence.
[58] During cross-examination Mr Edwards conceded that in his reconstructed financial statements, the appellant's expenses for petrol, rental and wages and salaries were understated. He conceded that if the cash purchases referred to in the statements were from the respondent (on credit) only, there would have been no profit. Also, if the cash purchases and receipts were ignored, the statements would also show no income. These could not be proved because, as the trial judge observed, Mr Edwards could not possibly know what cash purchases and receipts were made and given, and whether the cash receipts were equal to the cash paid out. Mr Edwards conceded that he was speculating in this regard. He also accepted that his value of closing stock was not arrived at in accordance with accepted accounting practices.
[59] The appellant submitted that based on the available evidence, it cannot be gainsaid that he suffered a significant loss of earnings and the absence of documentary evidence enabling accurate computation of the loss in accordance with acceptable accounting principles, does not relieve a court of that duty. It was submitted that the court a quo erred in this regard. It was argued that the proper and effective method of assessing loss of earnings and earning capacity is to first calculate the present value of the income which the appellant would have earned but for his disability, and then subtract from that, the present value of the appellant's income, if any, having regard to the disability. The result must then be adjusted in light of all the relevant factors and contingencies.
[60] The appellant argued that the court a quo erred in rejecting Mr Edwards' accounting model and accepting the methods employed by Greeff as accurate. Mr Edwards assumed, based on the appellant's evidence, that stock would have been at hand on 2 December 2005 and used that information in the financial statements to determine what stock levels he believed would have been there. Given the appellant's contradictory evidence, Mr Edwards opinion thus became unreliable, as found by the trial judge.
[61] Mr Edwards even conceded in evidence that the method used by him to estimate values for closing stock in the course of estimating profit, it not considered to be an acceptable accounting practice. He also conceded that he would not be able to come up with a complete answer in this matter because of the incomplete facts.
[62] The appellant argued that the court a quo erred in taking only the incomplete financial statements into account. It ought to have regard to the fact that the appellant had personal expenses in the amount of R10 000.00 per month and to the actual statements from the respondent reflecting the purchases (and credit) made by the appellant.The plaintiff stated in evidence that he earned approximately R10 000.00 per month from his stores.
[63] Mr Greeff pointed out that this amount of R10 000.00 was unsubstantiated and if the appellant spent this amount each month it was not reflected in his financial statements. Moreover, the source of the money spent would not necessarily be from profits and the drawings by the appellant, and as the respondent pointed out, may have been made at the expense of the respondent, given the poor performance of his businesses.
[64] According to Mr van Daalen, the appellant's business would have grown by 5% - 10°/o per annum. He initially stated that the appellant's business generated an annual income of between R60 000.00 and R80 000.00 a year. This was amended to R136 000.00 plus R36 000.00 in fringe benefits. As to the appellant's post morbid loss of income, Mr van Daalen ventured that the appellant could not earn more than about R4 000.00 - R6 000.00 from a sympathetic employer. Dr van Daalen did however, concede that if it was to be found that the appellant's business were running at a loss before his arrest, he suffered no loss of income for which the respondent is liable.
[65] Mr van Daalen's evidence was found to be hardly of assistance in this matter. He was unwilling to concede that the outcome of the appellant's future medical treatment was relevant when assessing his future income prospects. The trial judge frowned upon such a view held by an industrial psychologist as "remarkable". Dr van Daalen also insisted that market forces dictated that the appellant would only earn about R5 000.00 per month, in the Transkei, despite the reality that the appellant's was actually earning R12 000.00 per month in the Transkei at the time.
[66] The court a quo ultimately found that none of Mr van Daalen's statements were born out by evidence and his opinions were held to be based on speculation. The court a quo also rejected the evidence of Mr Edwards.
[67] The case for the respondent was that the appellant's liabilities exceeded his assets, that the appellant had been trading unprofitably before the incident and living on credit provided by his suppliers, such as the respondent. The appellant's financial statements for the period ending February 2005 reflected a trade loss of R40 796.00 and that the appellant's unpaid liabilities amounted to R94 660.00. The stock in hand was worth R30 000.00. The financial statements for the nine months prior to the appellant's arrest, reflect a profit of R20 268.00 and unpaid liabilities in the amount of R1O1 265.00. During the same period, the appellant withdrew R58 657 .00.
[68] The above figures figures, even upon a cursory analysis, are demonstrative of an ailing business running up losses. In short, what is shown, is that the appellant's business made no profits. A plaintiff bears the onus to prove his or her loss of earnings by presenting reliable evidence. The appellant also failed to call Mr Liton, his former partner in two of his stores. As the trial judge observed, both Mr Liton and Mr Martindale could have cleared up several unexplained questions regarding the appellant's income during the relevant period.
[69] The court a quo concluded:
"The plaintiff's evidence disclosed that the financial statements are not accurate, being prepared upon an incomplete production of relevant documentation and with the purpose of tax avoidance. On the face of the financial statements for the period 1 March 2004 to December 2005, the plaintiff's business were not generating a profit and, indeed, disclosed little or no value as a basis for an optimistic view that the plaintiff nonetheless could expect to generate a profit in the short to medium term thereafter.
Accordingly, the financial statements as they stand could not provide a satisfactory basis for a claim for damages for a loss of income."
[70] The appellant submitted that the trial court has a duty to make the best of the available evidence before it in order to determine the quantum of loss of earning capacity. Even where financial records are inadequate, the flaws in the evidence in relation to the calculation of the loss of earning capacity is not a bar to an award being made.
[71] During argument in this regard, reference was made to the case of Ndaba v RAF [2011] ZAECELLD 6 (30 June 2011), where the court, in the absence of any financial records, applied a substantial contingency deduction in respect of post, past and future loss of income, claimed by Mrs Ndaba. In this regard it must be pointed out that in Ndaba, it was never in dispute that the plaintiff's business as a hawker indeed yielded profits and that she a certain income based on the amount of fat cakes sold at a particular school. She also sold sweets. Most of the figures she presented in evidence were undisputed and based on reliable facts. It was a matter of the figures not adding up to the amount claimed if one had regard to school holidays, week ends and other factors. In the present case, a hefty contingency deduction is pointless. The respondent put forward a strong case to demonstrate that the appellant earned no income, lived on credit and his stores did not make any profits. If there was no income, there would be no point in taking a figure, (which was in any event never disclosed to the South African Revenue Services as income) and effecting a substantial contingency deduction to it. In my view, that would far too speculative. There is a certain irony in the probability that the appellant seems to have earned more working for Mr Kahn than from his stores.
[72] Of course a judge has a duty to determine a figure as a loss of income on the available evidence. However, in the present matter the appellant expected the trial judge to make bricks with straw.
[73] Only if it is clear that a loss has been suffered, a fair award can be made in the absence of proper financial records, but with regard to other reliable facts (See: Griffiths v Mutual and Federal Insurance Co. Ltd. 1994 (1) SA 355 (AD) at 546). There was certainly a paucity of reliable facts in this matter.
[74] The learned judge justifiably found that there was no link between the appellant's unlawful arrest and detention and the closure of his stores. The appellant's partnership venture with Mr Liton failed in respect of two stores. The court a quo observed that the closure seems to have been motivated by incidents of looting and the abandonment by the appellant's managers. The trial judge also correctly found that Mr Liton and Mr Martindale could have cleared up these questions if they were called.
[75] The trial judge added that even if he were wrong and if a factual and legal causative links could be established between the unlawful arrest and the closure of the stores, the question remains as to what damages the plaintiff suffered as a result thereof. Then the judge referred to the reliable and acceptable evidence which demonstrated that the appellant's stores were running at a loss. Any drawings the appellant may have made from his businesses, were not drawn from net profit and should not be deemed as legitimate income for present purposes. Accordingly, it was held that the appellant failed to prove on a balance of probabilities that he has suffered a loss of income as a result of his unlawful arrest and detention and malicious prosecution. No concomitant liability on the part of the respondent was therefore established. No link between the appellant's arrest and fact that the appellant's store managers left the stores, the looting of those stores and the subsequent closure could be found. That is too farfetched a notion based on the lack of evidence in this case.
[76] The trial judge also correctly found that there was no causal link established between the respondent's conduct and the breakdown of the Sayed marriage. The appellant himself was unsure about the reasons for the divorce or his wife leaving him. There could be several reasons unrelated to the respondent's conduct. In the absence of any evidence form the appellant's wife or a suitably qualified person who interviewed her, the respondent cannot be held liable.
[77] If one has regard to all the aforesaid, the appellant's criticism of the findings of the court a quo was demonstrably without merit.
General Damages
[78] In his determination of an appropriate award for general damages, the trial judge considered all the relevant facts and circumstances of this particular case. The most relevant of these were the following:
[79] The 28-year-old appellant was arrested in front of other customers and members of the respondent's staff and was placed in a police van in the parking lot of the respondent's Mthatha premises. At the Mthatha police station he was locked up with two kindly suspects in a cell, with a "terrible" open toilet. Later, a murder suspect arrived. The appellant was permitted to phone his wife and a friend brought him halaal food during his time in detention.
[80] When he was transported to prison, he was locked up with approximately 200 inmates for one night. Here things were much worse. Apart from another open, filthy toilet, there was no privacy, no place for prayers, and no halaal food was brought to him. He was also frightened of the other inmates.
[81] After his release he was fearful of being arrested again on each of the four occasions he was obliged to attend court after his release and before the charges were withdrawn.
[82] The plaintiff holds a BA degree, conferred upon him by a university in Bangladesh and he was a business man and trader in South Africa for about five years prior to his arrest.
[83] Notwithstanding the onset of a Post-Traumatic Stress Disorder, which was caused by his arrest, detention and prosecution, the plaintiff held a position as a manager of a retail outlet for at least four years after his release from detention until his post-traumatic stress disorder became aggravated by panic attacks, agoraphobia and eventually a major depressive disorder.
[84] The trial judge also noted that his award for general damages should reflect that:
"...the post-traumatic stress disorder and indeed the additional disorders which were not inevitable or foreseen, is and are treatable and are not of a permanent nature"
[85] The amount of R300 000.00 awarded to the appellant as and for general damages was determined with reference to past awards arising in similar circumstances. The trial judge cited several relevant cases in his judgment and the award he made is in line with the cases cited and the findings made in the judgment. It is not necessary to repeat each case cited in this judgment.
[86] The trial judge clearly did not commit an irregularity or misdirection in his determination of the quantum of the award. Therefore there is no basis to interfere with the award. (AA Mutual Insurance Association v Maqula 1978 (1) SA 805 (A) at 809 B - D)
The Costs Orders:
[87] A court has very wide discretion with regard to orders for payment of costs. A court of appeal will only interfere with a costs order if the court acted unreasonably (Randalia Assurance Corporation of South Africa Ltd v Page and Others 1975 (1) SA 720 C-D). Fairness dictates that costs should follow the result. Where a party is unsuccessful for reasons of that party's making, or if the party is responsible for the costs incurred, that party should pay the costs for those matters. (Feinstein and Another v Taylor and Others 1962 (2) SA 54 WLD at 55 B-E.
[88] The motivation behind the costs order made against the appellant in respect of the postponement of 5 August 2014, was that the appellant had amended its claim substantially. The respondent needed more time to prepare its defence against the increased claim. The appellant was therefore responsible for the postponement and he was therefore obliged to pay such costs. The trial judge was perfectly entitled to make such an order.
[89] Based on the aforesaid principles there is no reason to interfere with the costs orders made.
Conclusion:
[90] As stated before, The appeal must succeed with regards to the award made in respect of future medical expenses.
[91] With regard to the remaining issues, and for all the reasons and considerations set out above, the appeal must fail. However, the appellant's limited partial success on appeal must be reflected in the costs order. In my view, approximately 25°/o of the appeal was taken up with argument on the question of future medical expenses which was conceded sometime after arguments had commenced.
Order:
1. The award made in respect of future expenses in paragraph l(b) of the trial court's order is set aside and substituted with the following:
" The respondent is to pay the appellant the amount of R377 209.00 in respect of future medical expenses."
2. The appeal against the remaining orders is dismissed.
3. The appellant is to pay 75°/o of the respondent's costs of the appeal.
E REVELAS
Judge of the High Court
I concur
P.P TSHIKI
Judge of the High Court
I concur
N.G BESHE
Judge of the High Court
Appearances:
For the appellant: Adv. A Nelson SC and Adv. Niekerk, instructed by N.N Dullabh & Co.
For the respondent: Adv Schubart SC and Adv De La harpe, instructed by Netteltons Attorneys
Date heard: 08 May 2017
Date delivered: 13 March 2018