ACTUARIAL CASE LAW REVIEW

Facts and issue: The plaintiff, instituted a claim for damages based on unlawful arrest and detention against the Minister of Police, the National Commissioner of Police, and the Provincial Commissioner. The plaintiff was arrested by a police officer and detained together with her four months old baby. Both were released without her appearing in court. The defendants plead that the officer who effected the arrest acted in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. The court is called to decide whether there was a reasonable suspicion that the accused committed a Schedule 1 offence and if so whether the plaintiff’s arrest and detention was lawful. Secondly whether the child’s detention was lawful.

Discussion: The complainant laid a charge of malicious damage to property against the plaintiff. The complainant took Constable Ndlazi to his house for him to see the damage to his Television screen. On arrival he could see that the television screen was damaged. He could see that it was struck with a rock from the direction of the door. He went to the accused’s home in the company of the complainant. The plaintiff was very angry saying that the complainant who is her ex-boyfriend had bewitched her and as a result she cannot have intimate contact with other men, and that he had to undo what he did to her. The accused admitted to damaging the Television screen, adding that she will continue to trouble and harass him. Constable Ndlazi then arrested her and took her to the police station. He decided to detain her because she was angry, and she was threatening to cause further harm to the complainant. While at her home, Constable Ndlazi asked the plaintiff to leave the child at home, and she refused to do so. He could have taken the child to a place of safety, but the plaintiff refused.

Findings: The officer did not act on the word of the neighbour alone and arrested the plaintiff, he conducted some investigations to satisfy himself if indeed a crime was committed or not. He even gave the alleged suspect an opportunity to explain the allegations against her. He arrested the plaintiff after he had interviewed her and seen the need to stop her from carrying out her threats which she uttered in front of him even though he was a law enforcement officer. Police cells are not homes for children and are thus not equipped to cater for their needs. The detention of the child was unlawful. The same cannot be said to about the plaintiff’s arrest and detention. On the contrary the plaintiff’s arrest and detention are found to be lawful. Only the child is therefore entitled to damages that have been proved.

Order: The plaintiff claim for unlawful arrest and detention is dismissed. The plaintiff’s claim for unlawful detention in respect of her minor child is upheld. The defendant is ordered to pay damages to the plaintiff in the amount of R100,000 occasioned by the child’s unlawful detention.

Facts and issue: The plaintiff, Mr. Macamo, sues the defendant, the Minister, for what he says was his unlawful arrest and assault, carried out by Sergeant Maluleke and Sergeant Mutavhatisindi, together with other members of the police officers. Mr. Macamo overtook Sergeant Maluleke’s vehicle shortly before he reached the JMPD roadblock. He stopped at the roadblock. His car licence and his driver’s licence were checked. He was breathalysed, and then allowed to continue. Around 30 metres after the roadblock, he was stopped again by Sergeant Maluleke’s team, hauled out of his vehicle, handcuffed, kicked, slapped and punched. He says that some of the officers taunted him because he is from Mozambique.

Discussion: Mr. Macamo’s account of the assault was corroborated by the evidence of Sergeant Nzimande. Sergeant Nzimande said that he stopped at the scene to see if he could help. He said that he saw Mr. Macamo sitting on the ground with his hands cuffed behind his back. He saw Sergeant Maluleke slap Mr. Macamo. He saw another police officer kick Mr. Macamo in the back of the head. Sergeant Nzimande’s evidence was clear and satisfactory in every respect. Although the doctor did not notice any injuries to the back of Mr. Macamo’s head, the weight of evidence is plainly that Mr. Macamo was assaulted in the manner Sergeant Nzimande alleged. Sergeant Maluleke’s and Sergeant Mutavhatisindi’s version that Mr. Macamo had bottles of beer in his car was a falsehood, made up after the fact. Sergeant Maluleke and Sergeant Mutavhatisindi were, overall, wholly unimpressive witnesses. Their demeanour in the stand was dogmatic and belligerent. Neither man’s evidence is consistent with what was said on their behalf in the Minister’s plea.

Findings: The court rejects Sergeant Maluleke’s and Sergeant Mutavhatisindi’s evidence. On a balance of probabilities, Mr. Macamo was unlawfully detained despite having done nothing to provoke it. It cannot exactly be said what led to the arrest. It may have been because Mr. Macamo had the temerity to overtake a police vehicle, or perhaps it was simply because Mr. Macamo is from Mozambique. On the evidence, the assault was at least partly xenophobic in character. To kick and punch someone under restraint while taunting them about their national origin is despicable. It also adds a dimension of humiliation that cannot but force the value of the award upwards.

Order: The defendant is directed to pay to the plaintiff the sum of R270,000, plus interest at the prescribed rate.

Facts and issue: The plaintiff instituted action against the defendant for his unlawful arrest and his subsequent detention. Only the quantum of the plaintiff’s claim remains to be determined. The plaintiff pleaded that as a result of his unlawful arrest, alternatively apprehension and the unlawful detention by members of the defendant, he suffered damages in the amount of R5 million based on the deprivation of his liberty, the injury to his person, being humiliated and traumatised, his right of security and safety being injured, injury to his reputation, being subjected to adverse circumstances, being detained in a police cell for two days and for approximately seven months in the Grootvlei Correctional Services facility, loss of income for a period of more than seven months, and being offended by acts of the members of the defendant.

Discussion: When the police arrived at his flat, he was upstairs in his room whilst Lerato made breakfast for them. He heard her screaming, and she sounded frightened. He was naked and went downstairs, where he saw the police officers carrying firearms. He was informed that they were there to arrest him. The firearms were pointed at him, and they shouted that he must go down on the floor, to which he complied. The arrest took place not long after he was discharged from the hospital as he had an open fracture to his leg. At the date of his evidence, the wound has not yet healed, and he still has to receive physiotherapy. When he enquired the reason for his arrest, various reasons were mentioned, that there was footage of a robbery that was committed at a certain shop. He told them that it was impossible for him to have been involved in the robbery and showed them the operation he had on his right leg. All three police officers could see the injury and could notice that he was unable to walk properly as he had a limp. He suggested they approach Pelonomi Hospital to see when he was admitted and discharged. The officers did not heed his request.

Findings: Police officials are expected to treat persons suspected of crime with dignity. The plaintiff was vulnerable (naked) when he proceeded downstairs, in his own home, where the police officers were waiting. He was unarmed when he was instructed to lie down; all three officers pointed their firearms at him. His request that his whereabouts on the alleged robbery day be verified at the hospital fell on deaf ears. His pregnant girlfriend was frightened, and this undoubtedly impacted his psychological state. He could not be present when his son was born. He was then taken to a holding cell for two days. The case law is replete with references to the unacceptable conditions in holding cells, especially concerning the lack of privacy. He was then detained at Grootvlei for approximately seven months.

Order: The defendant shall pay the plaintiff R1,000,000 for general damages.

Facts and issue: The plaintiff instituted an action against the defendant for damages suffered because of an accident, pursuant to allegations that the plaintiff was pushed from a moving train carriage, the doors of which remained open while the train was in motion. In consequence of the incident, the plaintiff sustained injuries to his left tibia and fibula and various bruises and abrasions. The claim is predicated on the assertion that the defendant was under a legal duty to take such steps as were reasonably necessary to ensure his safety. The matter proceeded on the issue of merits only.

Discussion: Counsel for the plaintiff submitted that the plaintiff had succeeded in discharging the onus on a balance of probabilities that the incident occurred, as the plaintiff's version was corroborated by independent evidence. Furthermore, it was contended that the defendant has a legal duty to ensure that train commuters travel safely. In failing to do so, PRASA had negligently and wrongfully breached its said legal duty, as the carriage doors remained open. In addition, it was also contended that the defendant failed to make out a case of contributory negligence. The responsibility remained with PRASA to ensure the implementation of a strict safety regime of closing coach doors, when the train is in motion. The traditional but-for test is adequate to establish a causal link between the conduct by omission between the PRASA and the injuries sustained by the plaintiff. Likely, the plaintiff would not have been thrown out of the train had the strict safety regime of closing coach doors, when the train is in motion, been observed.

Findings: The plaintiff succeeded to establish that the negligent omission by the defendant was closely connected to the harm suffered by the plaintiff because of the incident. The plaintiff’s choice to remain standing where he did, cannot be regarded as an assumption of risk when it was always the defendant's legal duty to ensure that train doors are closed during the commute for the safety of the commuters. The defendant failed to discharge the onus, as no evidence was adduced to establish negligence on the part of the plaintiff on a balance of probabilities. PRASA had an actionable legal duty to keep the doors of the carriage closed while the train was in motion, to prevent passengers from falling out of the train. The defendant is solely liable for the harm suffered.

Order: The defendant is liable for 100% of the plaintiff’s proven or agreed damages.

Facts and issue: The applicant, on behalf of a minor child, has launched the present application, effectively seeking to review and set aside a decision made by the Road Accident Fund Appeal Tribunal (Tribunal), in terms of which, the Tribunal confirmed the rejection of the serious injury assessment report (SIAR), by the Road Accident Fund (RAF). The rejected SIAR was prepared by Dr Gavin Fredericks, following an assessment he conducted. The minor child was struck by a motor vehicle while crossing the street on his way home from school. At the time of the collision, the minor child, then seven years old, was rebuttably presumed to be doli incapax.

Discussion: The reasons advanced by the RAF for rejection were recorded in the rejection letter as the whole person impairment (WPI) assessed in the RAF form is not of such a nature and severity to qualify as serious as the plaintiff will not reach 30% WPI; and the injuries sustained currently form part of the list of non-serious injuries. The Tribunal met and considered the dispute. It reached a conclusion that the injuries sustained by the minor child may be classified as non-serious injuries in terms of the narrative test. The ground of inadequate reasons is opportunistic and arose as an afterthought. The review was launched, which in itself suggests that adequate reasons have been furnished. The Tribunal gave detailed reasons for finding that there were no significant Narrative Test issues to justify a classification of the injuries. It must be borne in mind that where reasons are provided, the end point is not an agreement with the view point of the administrator but an understanding of the decision.

Findings: The decision of the Tribunal falls within the bounds of reasonableness. Outside the pleaded case, the applicant introduced a case based on the legality principle. The applicant is not permitted to do so. In an instance where a right to reasons and the record has been waived, it is difficult for a court of review to perform its review functions, particularly when assessing the ground of ignoring relevant considerations and considering irrelevant ones, failure to apply mind. Overall, there is no legal basis to interfere with the findings reached by the Tribunal, particularly considering the nature of the injuries. The injuries sustained by the minor child form part of the list of non-serious injuries. These injuries are incapable of satisfying the narrative test. As a result, the application for review falls to be dismissed.

Order: The application for review is dismissed.

Facts and issue: The applicant, the Road Accident Fund, applied for a declarator that would end an alleged unwarranted practice relating to the levying of interest on amounts contained in court orders where the said court order did not provide for the levying of interest on those amounts. Furthermore, the applicant seeks that the practice of indemnifying the Sheriff of the High Court, when holding auctions based on unlawful writs of execution for the payment of interest be declared unlawful. The writs are allegedly unlawful as those are issued without a court order providing for interest.

Discussion: Section 2 of Prescribed Rate of Interest Act 55 of 1975 (PRIA) provides for interest on a judgment debt, unless that judgment or order provides otherwise. Absent an adverse ruling on interest contained in the judgment or order, the judgment debt shall be subject to interest payable thereon, which may be recovered as if it formed part of the judgment debt on which it is due. It is clear from the provisions of section 2(1) of PRIA, that the interest would be from the day on which such judgment debt is payable. The rate of interest is determined in terms of the provisions of PRIA. Upon execution of a writ on a judgment debt, the amount to be paid is certain by way of a simple calculation with reference to the interest payable. There is and can be no ambiguity as to the amount to be recovered from the debtor. Such writs are not unlawful as contended for by the applicant. Furthermore, calculation of the interest on the judgment debt occurs ex lege at the date on which the writ is issued.

Findings: Regarding the applicant's contention relating to the issue of interest, there is equally no merit. Interest is payable on judgment debts as well as claims for payment of monies in general. The proposal advanced by the applicant that the court should determine the rate of interest applicable and the date from which it ought to run in the judgment order, is contrary to the provisions of PRIA and the legal position. Both the rate and date from which it is to run is determined ex lege. The further proposal by the applicant that an affidavit be submitted in which the calculation of interest is calculated to be incorporated into the writ is of no consequence. That issue should be addressed by the Rules Board.

Order: The application is dismissed.

Facts and issue: Action brought by the plaintiff against the defendant for damages amounting to R1,085,869 for bodily injuries sustained in a collision with the motor vehicle, at which time the plaintiff was a pedestrian. The plaintiff is suing the defendant for past and future medical and hospital expenses, general damages and future loss of earning capacity. The issues for determination are liability, future loss of earnings or earning capacity, and future medical and hospital expenses.

Negligence and causation: No one has an absolute right of way on the public road. The plaintiff also had a duty to avoid the collision. He failed to give evidence showing that he took steps to avoid the collision. He testified that he did not see the insured motor vehicle before the collision. This version implied that he failed to keep a proper lookout and observe the motor vehicles approaching from behind. He was walking in the emergency lane along the converging traffic. The emergency lane is not reserved for the exclusive use by the pedestrians. On the evidence presented by the plaintiff, the insured driver was causally negligent, but he was not solely responsible for the collision. The collision was caused by the joint and contributory negligence of the insured driver and plaintiff.

Findings: The plaintiff has submitted that a contingency deduction of 12% be applied for future loss on the uninjured income and 32% on the injured income. The Actuary has applied the contingency deductions suggested by the plaintiff. The contingency deductions applied by the Actuary on pre-morbid and post-morbid earnings result in a fair and just compensation for the plaintiff’s future loss of earnings.

Order: The defendant is liable to pay 80% of the plaintiff’s proven damages for bodily injuries sustained. The defendant shall pay to the plaintiff an amount of R131,100 for future loss of earnings.