ACTUARIAL CASE LAW REVIEW

Facts and issue: Application for condonation of the applicant's failure to comply with ss 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The applicant's cause of action against the respondent (Minister) arises from a claim for delictual damages due to alleged negligence by members of the police. The applicant was shot in the back by the police, while fleeing the scene after committing a serious crime, resulting in a serious injury that left him a functional paraplegic.

Discussion: The delay in sending the required notice was 2 years and 9 months, from the date of the incident of 29 September 2016 until the notice was sent in June 2019. The explanation provided for this delay is riddled with unexplained gaps. The applicant has not offered a sufficient explanation that covers the entire period. The lack of explanation for the gaps in the timeline undermines the applicant’s case. He merely claims that he approached his attorney in May 2019 through his stepfather, but he does not explain why he did not seek legal advice earlier, especially after his initial release from prison. There is no explanation after he was first released when he understood or learned that he had a claim against the Minister. The applicant failed to disclose when he first learned of his potential claim against the Minister. The applicant’s claim that he lacked the financial means between 2017 and 2018 is insufficient as it lacks detail. He provides no explanation of what steps, if any, he took to inquire about his possible claim or why his stepfather only referred him to an attorney in 2019.

Findings: The applicant’s failure to disclose when he first reasonably became aware of his claim against the Minister raises concerns. Given his repeated assertions of financial hardship, it was crucial to inform the court when he learned about his potential claim. The applicant’s silence on this issue appears to be an intentional omission. The delay in launching the condonation application was nearly four years. The applicant has failed to establish good cause for the court to grant condonation for sending the statutory notice outside of the prescribed six-month period. The delay in sending the notice was not adequately explained, and to the extent that an explanation was provided, it was insufficient.

Order: The application is dismissed.

Facts and issue: This is an action for damages by the plaintiff on behalf of her minor son (O.M.M) who sustained gunshot injuries whilst he was 7 years old during community protests. The injuries sustained by the O.M.M were caused by the members of the South African Police Service during their scope of employment with the defendant. The merits were conceded 100% in favour of the plaintiff and the only issue to be determined was the quantum of the damages. The head of damages claimed by the plaintiff are general damages, loss of earning and future medical expenses.

Discussion: The minor child who was not part of the protest, was shot on his right cheek and sustained serious injuries that resulted in him developing a keloid on his cheek which makes it difficult for him to fully open his mouth and suffers from continuous pain. The clinical psychologist compiled a report as well and noted that the scar on the O.M.M’s cheek affects his speech and led to him being bullied at school. He is affected emotionally by the scar as he displayed signs and symptoms of post-traumatic stress disorder and anxiety. He will require counselling. According to the educational psychologist, O.M.M’s quality of life has been compromised by the injuries. She noted that he is a vulnerable learner diagnosed with PTSD and fits the criteria for a neuro-developmental disorder. The report by the industrial psychologist indicates that the incident impacted negatively on O.M.M, psychologically, physically and emotionally. His work capacity has been limited and thus his earning abilities. He should therefore be compensated adequately. Pre-incident he would have been able to complete his tertiary and enter the open labour market and work until retirement age. Post-incident his earning abilities have been affected.

Findings: The child’s life has been affected by the incident which includes his schooling. He does have learning barriers that will affect his ability to progress in the labour market but for the incident. The contingencies to be applied are at 5% pre morbid and 25% post morbid. This will make the total loss of earning R1,278,000 as argued by the defendant. O.M.M has an ugly scar on his right cheek which affect his self-esteem and considering the value of damages and inflation, the appropriate amount to be awarded is R550,000 for general damages.

Order: The total amount of damages payable to plaintiff being calculated R2,328,000.

Facts and issue: The plaintiff instituted an action against the defendants in which he claims recompense for damages he alleges he suffered because of an unlawful arrest and detention. The plaintiff pleaded that the arrest was effected without a warrant of arrest in circumstances where members of the defendant did not harbour a reasonable suspicion that he had committed the offence of rape.

Discussion: The prosecution was not proceeded with, the charge against the plaintiff having been withdrawn since not enough DNA could be obtained from vulva swab that was collected from the complainant. The information that the defendant had at the time of plaintiff’s arrest was evidence that the complainant was abducted and placed inside the boot of a white vehicle. Some of the characters of the car’s registration. Evidence of complainant having been sexually assaulted. Information that the mother of the complainant, after the latter had pointed out the plaintiff and his car to her and after the mother had made certain investigations, she was able to say that the person pointed out to her worked at the Total garage. That the person also moonlighted a taxi driver. Having himself made enquiries at the said garage and establishing that on the day of the alleged rape the plaintiff was off duty. It turned out when found that the plaintiff’s motor vehicle bore a striking resemblance to the one described by complainant’s school friend.

Findings: Armed with the information he had at his disposal, Captain van Schalkwyk’s suspicion that the plaintiff raped the complainant was based on solid grounds. That his suspicion in this regard, based on the information he had at his disposal was reasonable. He had good and sufficient grounds for suspecting that the plaintiff was complicit in complainant’s rape. The plaintiff’s arrest without a warrant was justified by section 40(1)(b) of the Criminal Procedure Act 51 of 1977.

Order: The plaintiff’s claims are dismissed.

Facts and issue: This is an interlocutory application, in the form of absolution from the instance in terms of Rule 39(6) of the Uniform Rules of Court by the applicants, the defendants in the main action. The main action concerns a claim for damages instituted by the plaintiff against the defendants. The plaintiff issued summons against the defendants for damages arising from alleged unlawful arrest and detention by members of the SAPS as well as malicious prosecution.

Discussion: The defendants applied for absolution from the instance on the basis that there was no evidence that the plaintiff’s arrest and detention was unlawful. It has been proved that the plaintiff was arrested by members of SAPS who were on official duty. Further, they entertained a suspicion that the plaintiff was involved in car hijacking, robbery and attempted murder cases that were committed against various complainants. The evidence presented demonstrates that the police in effecting the arrest had reasonably suspected that the plaintiff had committed the crimes alleged. The evidence demonstrate that he was pointed out as an accomplice by the other 3 accused who, when apprehended confessed to the crimes as committed.

Findings: It is justified to infer on a balance of probabilities that the arrest was based on solid grounds. The jurisdictional facts for arrest were satisfied. The conduct of the member of the SAPS caused no harm in arresting the plaintiff, it then follows that detention was justified. The plaintiff presented no prima facie evidence that the third defendant directed her will to prosecute despite a lack of reasonable and probable grounds to do so. It is clear from the evidence that the plaintiff did not deny the contention that the matter was postponed on numerous occasions because of the plaintiff’s own attorneys protracted application for recusal of the magistrate. The evidence presented proves no malice on the part of the third defendant.

Order: The application for absolution from the instance is granted in respect of all claims against the defendants.

Facts and issue: Action for damages against the Minister of Police. The plaintiff pleads that he was arrested without a warrant by police officers who were all members of the South African Police Services (SAPS) and whose full names and rank are unknown to him. It is further pleaded that, subsequent to his arrest, the plaintiff was detained at the police station at the instance of these policeman as well as various other policemen whose names and identities are also unknown to the plaintiff. The plaintiff pleads that he was assaulted by being punched in the face and grabbed and forced into a police vehicle.

Discussion: The plaintiff then was given time to prepare a substantive amendment in terms of which he sought to plead a new factual complex. This was done to attempt to mirror the evidence already provided by him. The amendment sought to change the pleaded version. The amendment sought to take into account the newly produced statement and assault charge which was significantly at odds with the pleaded case. The fact that the police officers, whilst pleaded as unknown to the plaintiff, were named in the statement and traceable was also a factor which had only just come to light for the defendant. The plaintiff had confirmed in his evidence that the identity of these police officers was discovered based on the register kept at the shop which recorded the visits of policemen who were deployed routinely to inspect shops owned by foreigners during the period of xenophobic violence. The defendant claims prejudice in that for years it has been dealing with a case which is to the effect that the plaintiff was arrested by unknown police officers and detained by unknown police officers at a police station.

Findings: The fact that the police officers involved were known to the plaintiff all along is of enormous significance. The defendant has been deprived of the opportunity to lead evidence and cross- examine. One can only speculate as to the course the trial would have taken had the charges laid against the two police officers not been latterly found by the defendant. The defendant was called upon by the proposed amendment after eight years and after the case of the plaintiff had come to a close to meet an entirely new case. The eight-year delay in moving for the amendment was not explained nor is it explicable on any basis which was in accordance with good faith. The plaintiff should have explained the delay in seeking the amendment. This is not a matter where it would be appropriate to allow the amendment.

Order: The plaintiff’s claims are dismissed with costs.

Facts and issue: The plaintiff instituted action for the recovery of delictual damages in terms of the Road Accident Fund Act 56 of 1996, because of the personal injuries sustained during a motor vehicle collision. The plaintiff was a pedestrian and was allegedly knocked down by a motor vehicle while he was running or walking. The plaintiff testified viva voce and stated that he was running/jogging on the pedestrian’s sidewalk when an oncoming VW Polo motor vehicle left the road and knocked him down. As result of that collision, he fell into a ditch. He said the accident was a so-called “hit and run” as the vehicle did not stop after colliding with him.

Discussion: The defendant argued that plaintiff’s testimony was contradictory and that the cautionary rules of evidence must be applied when admitting such evidence. The defendant pointed out that the plaintiff’s evidence contradicts his particulars of claim as well as his section 19(f) statement in a material respect in that while in the particulars of claim he alleges that he was walking at the time of collision, during his testimony the plaintiff denied that he was walking at the time of the accident. There is indeed a material discrepancy between the plaintiff’s pleadings, the section 19(f) affidavit and the viva voce evidence regarding what the plaintiff was doing when the motor vehicle allegedly knocked him over. The plaintiff’s contention that it is not important whether he was running or walking is wrong. Even though it is common cause as alleged in the particulars of claim that the plaintiff was at all material times a pedestrian, what he was doing cannot be said to be immaterial. Whether he was running or walking is still important for the determination of liability.

Findings: Whether the plaintiff was running, walking or crossing the road is relevant. In the light of the anomalies in the plaintiff’s version, it cannot be said that the plaintiff did not contribute to the collision. It cannot be ignored that the plaintiff’s evidence is materially contradictory. There was contributory negligence on the part of the plaintiff. Pre-morbid, the plaintiff is being pitched at a higher level. Therefore, at the very least, the contingency to be applied should at least be double the usual contingencies applied. Conversely, as the plaintiff is pitched post-morbid at a very low level, no contingencies should be applied to the post-morbid projected income for the simple reason that he may very well perform and earn at a level higher than where he is pitched.

Order: The defendant is liable for 80% of plaintiff’s proven or agreed damages. The defendant shall pay the plaintiff an amount of R2,331,604 in full and final settlement of the plaintiff’s claim for loss of earnings.

Facts and issue: Application in terms of Uniform Rule 34A(1) whereby the applicant seeks an order directing the respondent to make an interim payment in respect of the applicant's past loss of earnings, past hospital and medical expenses, and future hospital, medical and related expenses arising from the injuries sustained in the motor vehicle accident that took place.

Discussion: The thrust of respondent’s argument is that plaintiff has not met the requirements for an interim payment in terms of Rule 34A since the respondent has not admitted liability to the applicant for the injury sustained in the motor vehicle accident. The medical aid scheme is compelled to cover certain expenses incurred by its members and consequently the respondent is unable to contract out of such obligation. The applicant has complied with the requirements of section 34A in that the applicant has instituted an action against the respondent. The applicant’s damages have been adequately set out in the applicant’s founding affidavit, and the respondent cannot escape the fact that it has admitted its statutory liability to the applicant in terms of section 17 of the Act. The respondent expressly admitted its statutory liability, in paragraphs 2 as well as 3 of its plea, stating that the cause of the collision was due to the sole negligence of its insured driver. Therefore, respondent has no grounds to circumvent the contents of its plea.

Findings: The ill-conceived attempt to rely on the internal directive, as its justification to avoid the payment, has been declared ultra vires in a previous judgment. This implies that the respondent is flagrantly disregarding court decisions. It is not entitled to act as it pleases. It cannot escape its mandate and to provide compensation to victims of motor vehicle accidents in respect of Past medical and hospital expenses, as this is a collateral benefit that is to be disregarded and coincides with the res inter alios acta principle. The respondent’s refusal to pay such claims, despite legal precedent, is disrespectful towards the judicial authority vested in the judicial system. The respondent’s conduct ought to be met with displeasure and a punitive cost order.

Order: Payment in the sum of R53,312.98 in respect of applicants’ past hospital and medical expenses is ordered. Payment in the sum of R11,596 is ordered in the respect of past loss of income.