South Africa: Eastern Cape High Court, Grahamstown

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[2019] ZAECGHC 113
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G.B v Minister of Justice and Correctional Services (3858/2017) [2019] ZAECGHC 113 (5 November 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO.: 3858/2017
In the matter between:
G[…] B[…] APPLICANT
And
MINSTER OF JUSTICE AND CORRECTIONAL SERVICES FIRST RESPONDENT
JUDGMENT
SMITH J:
[1] One cannot help but feel profound empathy for the plaintiff in this matter. Not only was he brutally assaulted and raped by a fellow inmate while being incarcerated at the St Albans Medium B Correctional Facility, but his attempts to report the matter to the prison authorities were also thwarted by indifferent functionaries, and the perpetrator was allowed to continue terrorising him with impunity.
[2] He has as a consequence instituted civil action against the Minister of Justice and Correctional Services for general damages in the sum of R700 000 and future medical expenses in the sum of R200 000.
[3] The issue of the defendant’s liability was resolved on 8 February 2019 when Plasket J ordered that he was liable for 100% of such damages as the plaintiff may be able to prove in due course. The only issue which consequently falls for decision is the quantum of the plaintiff’s damages.
[4] When the matter came before me, only the plaintiff and his expert witness, Professor Charles Young, were called to testify. The defendant’s legal representative, Mr Mgangatho, did not dispute any aspect of their testimonies, neither did he call any witnesses in rebuttal. The plaintiff’s version is thus undisputed and must be taken as common cause.
[5] On 11 January 2015 the plaintiff was attacked and raped by a fellow inmate. At the time he had been placed in a single cell at his own request because he is gay and was not affiliated to any prison gang. The prison authorities’ policy recognises the need for certain vulnerable offenders to be detained in single cells for their own safety. They include offenders with a potential for self-harm and those with a different sexual orientation.
[6] However, the defendant’s functionaries, for some unexplained reason, had seen it fit also to transfer other prisoners who had been convicted of some or the other transgression, to the same block. The block comprising the single cells were thus holding both inmates who were there at their own request for safety reasons, as well as other prisoners who had been placed there as a form of punishment. This undesirable arrangement had the effect of not only negating any benefit that the policy might have had for the vulnerable prisoners, but potentially also rendered them even more exposed to dangerous elements.
[7] It was thus no surprise that on 11 January 2015, after the plaintiff had taken medication that made him feel drowsy and had returned to his cell unsupervised, he was accosted and attacked by Sikhonyane, one of the inmates who had been placed in the same block as a form of punishment. He gave the following account of his harrowing experience.
[8] He said that after Sikhonyane had grabbed hold of him, he held a shard of glass to his neck and instructed him to remove his pants. When he resisted, Sikhonyane cut him with the glass on his neck and threatened to kill him if he screamed. Sikhonyane thereafter tore the plaintiff’s pants and proceeded to rape him anally. He had used a condom but no lubrication. The ordeal lasted about 15 to 20 minutes.
[9] According to the plaintiff the unlubricated penetration was painful, but he was warned that his throat would be cut if he attempted to cry out or make any noise to draw attention. After the rape he spent a few minutes in his cell crying and thereafter reported the incident to the wardens as soon as the night shift had started.
[10] He had approached one Mrs Riti, one of the wardens on night duty, and attempted to report the incident to her. At the time he was bearing visible evidence of his ordeal. He was emotionally upset, his pants had been torn, and he was bleeding from the cut on his neck. Mrs Riti, however, appeared unconcerned, insinuated that he was lying, and declared that she in any event had to go home to her children.
[11] It is not clear whether Mrs Riti’s reluctance to come to the plaintiff’s assistance was motivated by insipient homophobia, callous indifference, or simply shocking incompetence. Her insensitive behaviour nevertheless only added insult to injury insofar as the plaintiff was concerned. The plaintiff thereafter became so despondent that he attempted to commit suicide by hanging himself in his cell. Fortunately one of the night duty wardens was able to intervene and called for assistance.
[12] The plaintiff was thereafter taken to the prison hospital and later to the Dora Nginza Hospital where he was examined and given some ointment and tablets. He was also taken to the police station where he laid a criminal charge. It, however, does not appear that the criminal case was ever prosecuted.
[13] Regrettably the prison authorities’ indifference to the plaintiff’s plight continued unabated thereafter. After the plaintiff was returned to his cell, no attempt was made to prevent Sikhonyane from having further contact with him. In fact Sikhonyane had thereafter threatened him on several occasions, and all attempts to report those incidents to the authorities were simply to no avail.
[14] It is not surprising then that the plaintiff’s mental state worsened and he again attempted to commit suicide by overdosing with tablets. On this occasion he was taken to the Livingstone Hospital where he was consulted by a psychologist who recommended follow-up treatment in prison. The prison authorities, however, appeared to have ignored this recommendation.
[15] After his return from the Livingstone Hospital he was placed in a communal cell with other gay men. He thereafter successfully applied to be transferred to the Grahamstown prison where he continued to experience frequent bouts of severe anxiety and flashbacks to the events. He has also committed several acts of self-harm by cutting himself.
[16] Professor Young testified that the format which he employed when assessing the plaintiff was specifically designed to minimise any likelihood of malingering. He was thus satisfied that the diagnoses of Post-Traumatic Stress Syndrome (PTSD) was linked to the rape incident, and even though the plaintiff had a pre-existing history of alcohol abuse, it has likely been aggravated by the rape.
[17] Professor Young also referred to the fact that after the rape the plaintiff had cut himself and had attempted to commit suicide by overdose. These and other psychological sequelae of the plaintiff’s traumatic experiences were manifest and extensive. He still experiences low mood swings, loss of enjoyment of activities that he previously enjoyed, auditory hallucinations, and distressing dreams, amongst others. His feelings of shame and anger, coupled with sleeplessness, has rendered him a high risk of suicide. Professor Young also said that the plaintiff’s trauma was compounded by the inadequate and indifferent reaction of the prison authorities.
[18] In his view provision should be made for future medical treatment, including an admission period of four weeks at the estimated cost of R67 060 (excluding medication), but that an eight week admission period would be more beneficial. In addition, he also recommended 36 hours’ of psychological therapy, estimated to cost about R38 880.
[19] Ms Stretch, who appeared for the plaintiff, submitted that in awarding damages the court must have regard to the unsatisfactory manner in which the defendant has conducted the litigation. She pointed to various unnecessary applications which the plaintiff was constrained to bring in order to compel discovery, compliance with Rule 35(3), delivery of further particulars, as well as a formal application for separation of merits and quantum. All these interlocutory applications were occasioned by the intransigent and mala fide determination of the defendant to drag the matter out for as long as possible. Ms Stretch also submitted that despite the fact that defendant had no bona fide intention of contesting the merits or quantum, he had forced the plaintiff to call witnesses in both respects, without putting a single question to any of them. She also referred to Professor Young’s testimony to the effect that the symptoms of PTSD are aggravated by related litigation, either criminal or civil, and becomes worse when there are frequent delays and postponements.
[20] For these submissions she relied on dicta by Donen AJ in Bridgman NO v Witzenberg Municipality [2017] 1 All SA 466 (WCC), where he criticized the municipality for persisting with a denial that the plaintiff had been raped when there was independent and incontrovertible evidence that her genitalia had been torn and bloodied and contained traces of the perpetrator’s DNA. The municipality had nonetheless persisted with its denial until the fifth day of the trial. The learned judge remarked as follows, at para. 221:
“The approach of the municipality added insult to her injury and it further violated her dignity. A remedy for injury should be given when words or conduct involve degradation or an element of insult. This translates into damages.”
[21] The plaintiff was awarded damages in the sum of R 780 000.
[22] I am, however, of the view that the facts of that matter are distinguishable. It is conceivable that by the very nature of these types of incidents, the defendant - in particular where it’s an organ of state - would not have knowledge thereof. It is thus not unreasonable for the defendant in such cases to require a plaintiff to prove his or her case and provide evidential basis for the damages claimed.
[23] Not having dealt with the merits myself, I am at a slight disadvantage to determine whether there was anything remiss or malicious in the manner in which the defendant conducted its defence on the merits. However, I have little doubt that Plasket J would have mentioned it if indeed he was dissatisfied with any aspect of defendant’s conduct.
[24] As for the evidence adduced in respect of quantum, I was satisfied that it was both necessary and in the interests of the plaintiff to testify and to call his expert witness. It has certainly placed me in a better position to contemplate appropriate damages.
[25] While it is conceivable that in appropriate cases the unacceptable manner in which a defendant litigates may translate into increased damages for a plaintiff, courts should be cautious not to adopt an approach that may have a negative impact on the right of a defendant to require a plaintiff to prove his or her case.
[26] Having said this, I am of the view that the conduct of the defendant’s employees, immediately after and in the weeks following upon the incident, has contributed significantly to the plaintiff’s suffering. In this regard I refer to the callous indifference to the plaintiff’s plight displayed by Mrs Riti and the lamentable failure or refusal of the prison authorities to come to the plaintiff’s assistance when the perpetrator continued to terrorise him. There can be little doubt, as was confirmed by Professor Young, that those factors, as much as the rape and assault themselves, contributed significantly to the plaintiff’s psychological frailty, his revision to alcohol abuse, and predisposition for suicidal behaviour.
[27] Counsel have referred me to various comparable cases which they submitted should provide assistance in determining a fair and reasonable sum of damages.
[28] In addition to the Bridgman matter, Ms Stretch has also referred me to the following matters:
a) Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG). In that matter a 25 year old woman was raped while she was in detention. She was awarded damages in a sum of R425 000 for contumelia and general damages for the assault, the present day value being R548 000. Ms Stretch submitted that the distinguishing features of this case warrant a higher sum of damages.
b) DW vs Minister of Police and Another 2017 (1) SACR 441 (GP), where a 22 year old female student was attacked and raped by an accused out on bail. She was awarded R750 000 for pain and suffering, disfigurement, psychological and mental suffering, as well as a further R350 000 in respect of contumelia. Ms Stretch conceded, however, that there were numerous aggravating features in that case which justified the substantial damages award.
[29] Mr Mgangatho, on behalf of the defendant, argued that damages in the sum of R200 000 would be fair and reasonable. He referred, amongst others, to Flanagan v Minister of Safety and Security (497/2017) [2018] ZASCA 96 (I June 2018), where the plaintiff was awarded damages in the sum of R200 000. The aggravating factors in that case having been that the plaintiff had developed an intense and irrational fear of contracting HIV, his sexual relations with his wife had been negatively affected, he struggled to cope at work, and was mocked by his colleagues.
[30] While these cases are useful in providing guidance in respect of damages that other courts have found to be fair and reasonable in comparable cases, no two matters are the same and each case must be evaluated on its own peculiar facts and circumstances.
[31] Having had regard to the factors mentioned above, I am of the view that general damages of the sum R450 000 would be fair and reasonable. In addition, the plaintiff’s need for treatment by a way of admission to an institution for a period of four weeks at the cost of R67 060, exclusive of medication has also been established. If allowance is made for medication, the sum of R 75 000 in this regard would be fair. The need for further psychological therapy sessions of 36 Hours at a cost of R 38 880 has also been established.
[32] Regarding the issue of costs, Ms Stretch has argued that the unacceptable conduct of the defendant’s functionaries and the manner in which he conducted his defence (to which I have referred above), justify punitive costs. She has accordingly asked for costs to be awarded on the attorney and client scale. For the reasons that I have stated above, I am of the view that such an order is not justifiable, and that costs should be awarded on the party and party scale.
[33] In the result the following order issues:
a) The defendant is ordered to pay the plaintiff the sum of R450 000 in respect of general damages and contumelia.
b) The defendant is ordered to pay the plaintiff the sum of R113 880 in respect of future medical expenses.
c) The defendant shall pay interest on the abovementioned amounts at the legal rate from the date of demand to date of payment.
d) The defendant shall pay the plaintiff’s costs of suit.
__________________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Plaintiff : Ms Stretch
Attorneys for the Plaintiff : NN Dullabh Co
5 Bertram Street
Grahamstown
Counsel for the Defendant : Mr Mgangatho
Attorneys for the Defendant : Mgangatho Attorneys
119 High Street
Grahamstown
Date Heard : 13 and 25 September, and 1 October 2019
Date Delivered : 5 November 2019