PERSONAL INJURY

Facts: The plaintiffs pleaded that the deceased was arrested for being drunk in public by members of the police services. Further, it was alleged that the deceased was found lying next to the driver’s side of his motor vehicle. The defendant pleaded “no knowledge” of these allegations. It was further contended by the plaintiffs that at the time of the deceased’s arrest, the deceased was a diabetic and was in diabetic shock. It was also contended that the deceased had several bruises, injuries and contusions at that time. Again, the defendant pleaded “no knowledge” of these allegations. The plaintiffs pleaded that at the time of his death, that the deceased was arrested or taken into custody by Constable Klaase and Constable Stanfliet, members of the SAPS, without any steps being taken to establish the deceased’s medical condition or steps to ensure the appropriate medical treatment was administered. The defendant denied these allegations. When the deceased was admitted to hospital, he was in a diabetic (hypoglycaemic) shock and had a severe cut on his forehead and several bruises contusions and injuries. The deceased passed away.

Application: This is an action for loss of support arising from the allegedly wrongful death of the first plaintiff’s husband after being taken into custody by the police. The deceased was the father of both the second and third plaintiff. The plaintiffs alleged that the deceased had a duty to support them, which but for the allegedly wrongful death, the deceased would have fulfilled.

Discussion: The medico-legal post-mortem report revealed that the deceased sustained multiple blunt traumas to his face and trunk, multiple fractured ribs, numerous petechial haemorrhages of the intra-thoracic organs and severe lowering of his blood glucose. The plaintiffs alleged that the deceased’s death was the direct result of the intentional conduct, omissions and negligence of the named members as well as other police members of the Springbok police station, whose identities are unknown to the plaintiffs, who acted in their capacities and in the scope of their authority and employment as members of the police. Dr Burger gave evidence as an expert on police procedure and in particular the Standing Orders that were applicable at the time of the deceased’s arrest and detention. Based on the concessions made by Professor Mollentze, Mr Coetzee SC, who appeared on behalf of the defendant, conceded, that if the deceased was taken to hospital earlier, he would probably have survived. Mr Coetzee, on behalf of the defendant, argued that the defendant accepted that he had a general duty to provide medical care to a person under arrest where this was necessary. However, he argued that the plaintiff had the onus of establishing that Constables Stanfliet and Klaase together with Warrant Officer Clarke were in fact negligent in the circumstances of the case. He argued that the plaintiffs had not discharged the onus and that the court should make an order of absolution from the instance with costs in favour of the defendant.

Findings: By virtue of the evidence given by Warrant Officer Clarke, she knew medication was required to control the disease of diabetes. It follows from this that she knew that there was a reasonable risk of potential harm to the deceased if the appropriate medication was not administered to the deceased in the manner required for his well-being. In other words, Warrant Officer Clarke knew that there was a reasonable possibility the deceased would suffer harm if appropriate steps were not taken to secure the appropriate medical help or treatment. The diligens paterfamilias would have taken steps to prevent such harm. Despite this, Warrant Officer Clarke failed to enquire from Constable Klaase whether they had established what medication the deceased needed to control his diabetes. Warrant officer Clarke knew enough to know that she ought to have sought guidance from a person with medical qualifications or experience. She failed to do this. Warrant Officer Clarke was negligent in the circumstances. The plaintiffs have established the elements required to establish a delictual claim for loss of support and the defendant is liable for such damages.

Order: The defendant is liable for such damages due to loss of support that plaintiffs may establish arising from the death of the deceased, including the reasonable costs of the funeral for the deceased.

LEVER J

Facts and issue: The plaintiff instituted a delictual action against the defendant, the Minister of Police, pursuant to her warrantless arrest, for her unlawful arrest and detention for approximately 25 hours. The action encompassing lability and quantum were determined conjunctively. The accused were arrested on allegations of kidnapping and assault with intent to do grievous bodily harm. The suspects were detained in the holding cells.

Discussion: Regarding the conditions of detention, the plaintiff alleged that a terrible odour permeated the cell which emanated from a leaking latrine, which flowed onto the cell floor. When the latrine was to be used, there was no privacy.  Additionally, the cell was cold and there was an absence of hot water. The plaintiff was given a blanket with no sponge. Furthermore, the shower was not working. The defendant admitted the arrest and detention. Consequently, the defendant bore the onus of proof. The warrantless arrest of the plaintiff according to Jacobs was founded on two statements that were contained in the docket. The first of Tabe and the medico legal report. The evidence of Jacobs was unsatisfactory in material aspects. The statement of Tabe given its broad sweeping allegations and ambiguity should have necessitated further investigation prior to the arrest of the plaintiff. The contention of Jacobs that within the context of criminal process further investigation undoubtedly can continue is unquestionably.

Findings: The jurisdictional requirements that govern an arrest are markedly different from the investigative process that may precede and continue post the execution of an arrest. In the circumstances of the case, the arrest of the plaintiff was to be founded on statutory delineated jurisdictional grounds. In this regard, the failure of Jacobs to have recorded a supplementary affidavit from Tabe is telling. More peculiarly, Jacobs did not find an additional affidavit explicating these events. On the conspectus of the evidence that was before Jacobs, Jacobs could not have reasonably suspected that the plaintiff to have committed an offence referred to in Schedule 1. The statement of Tabe at best was vague. It failed to delineate essential details of the alleged perpetrators. On application of the law to the facts it could not be found Jacobs had a suspicion of any crime been committed based on the evidence at his disposal at the time the plaintiff was arrested. The arrest of the plaintiff in the absence of a suspicion axiomatically renders the arrest unlawful.

Order: The defendant is ordered to pay the plaintiff the amount of R40,000 together with interest at the prescribed rate from date of service of summons to date of payment.

Facts: Ms Malindi is the plaintiff and in 2021 she attended Gold Valley Lounge, the defendant’s premises, as a patron. Gold Valley Lounge is a gambling place. She was, and still is, a regular customer of the defendant. She has been their bona fide patron for over 5 years and she uses the common shop area and the toilet in the shopping complex. She went to the toilet. The two buildings of Gold Valley Lounge and the toilet are separated by a corridor. If you wish to go the toilet you leave Gold Valley Lounge through the back door into the corridor. Then you have to climb the stairs which take you to the door of the toilet. Each day that she spent in the Lounge she would go about four or five times to the toilet. She was leaving the bathroom when she stepped on a cardboard box which caused her to fall. The cardboard box was located at the bottom of the stairs meant for patrons exiting and entering the toilets.

Claim: Plaintiff suffered a fractured right tibia and injuries to both ankles. By agreement between the parties, the issues of quantum and liability were separated, and the trial proceeded on liability.

Discussion: The defendant’s customers had used the Nando’s toilets, but there were complaints, so what had previously been a storeroom was converted into a toilet and a gate was installed to prevent the defendant’s customers from utilizing the Nando’s toilets. Only the defendant’s employees were responsible for the cleaning of these toilets. There were three cleaners at the time, namely Gladys, Delight and Nelly. There was a cardboard box always placed in front of the steps at the toilet because of a leak coming from the roof. The cleaners placed the cardboard box there to prevent customers from entering the toilet with dirty wet shoes and causing the toilet’s floor to get dirty. That the toilets were only to be utilized by the defendant’s personnel and customers was a general understanding.

Findings: The defendant’s current manager gave a simple explanation as to why the bathroom is cleaned and maintained by the defendant. The defendant operates 24/7 and it is important for the defendant to ensure that the bathroom is clean and in a working condition for their customers at all times. It is clear from the evidence that the complex cleaners and their supervisor mostly neglected their duty to maintain the building. Therefore, taking responsibility for the maintenance and cleaning of the bathroom was a pure business decision. The fact that the defendant was cleaning and maintaining the toilet does not necessarily mean that it should be an indication and proof that it had exclusive control over the scene and the toilet. The plaintiff should have joined representatives of owners of the complex and/or City Property as joint wrongdoers. They would have to come and testify as to whether the defendant had exclusive use of and responsibility for the scene. The owners of the complex and/or City Property must be joined. The defendant was supposed to raise the issue of non-joinder as a point in limine and has failed to do that. This has resulted in a trial that was unnecessarily prolonged.

Order: The plaintiff’s claim is dismissed. Each party to pay its costs.

MATSEMELA AJ

Facts and issue: The plaintiff brought an action against the defendants for damages and alleged loss of income because of his unlawful arrest, detention and malicious prosecution. The plaintiff was arrested without a warrant for alleged offence of rape. The plaintiff testified that he was at a nearby tavern. He returned to his home and slept. At about 9am, he was woken up by a female voice shouting and making accusations that he had raped two minor children of that woman. The plaintiff went to the local police station to report the matter. Whilst they were waiting, a certain Radebe arrived alleging that he has met a lady who has accused the plaintiff of raping her children. At that point Capt Ndaba said there was nothing he can do but to arrest the plaintiff. The plaintiff was arrested there and then.

Discussion: The plaintiff’s arrest was effected without a warrant. The defendants plead that the plaintiff’s arrest was because the arresting officer held a reasonable suspicion that the plaintiff had committed the offence of rape. The arresting officer exercised the power to arrest without a warrant in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. The plaintiff contended that the arresting officer could not have held a reasonable suspicion that the plaintiff had committed an offence of rape of the minor children. The arresting officer had placed sole reliance on Ms M’s accusations of rape. The plaintiff’s counsel argued that an accusation alone cannot ground a reasonable suspicion since the arresting officer had admittedly failed to verify the accusations by, amongst others, interviewing the children who were present at the police station at the time when their mother was making the accusations of rape.

Findings: There was no reasonable suspicion that the plaintiff had committed a crime of rape at the time of Cpt Ndaba arresting the plaintiff. On any version, as confirmed by testimony of the plaintiff, Capt Ndaba and Sgt Radebe, the arrest was effected based on the sole accusations of Ms M who had arrived at the police station and accused the plaintiff of sexually assaulting her two minor children. The arresting officer was not obliged to effect an arrest. The arresting officer failed to properly consider and investigate the story surrounding the accusations of rape. The arrest of the plaintiff was unlawful. The defendants did not seriously challenge the plaintiff’s submission that an amount of R30,000 per day is acceptable as reasonable compensation for the plaintiff’s unlawful arrest and detention. The plaintiff is entitled to compensation of R30,000 for each day of his detention of 33 days.

Order: The defendants are ordered to jointly and severally pay the plaintiff the sum of R990,000 as damages for unlawful arrest and detention.

Facts and issue: The plaintiff instituted action against the defendant, the Minister of Police, for general and special damages in the amount of R2,634,400 arising from a shooting incident perpetrated by a member of the South African Police Service (SAPS) acting within the course and scope of his employment with the defendant when the plaintiff was shot and injured. It is the plaintiff's pleaded case that he was unlawfully assaulted by a police officer, Sergeant Nyamane, who caused the injury by shooting him in his back. The defendant denies that Sergeant Nyamane acted unlawfully and specifically pleads that a warning shot was fired to the ground when the plaintiff attempted to attack Sergeant Nyamane with a dangerous object.

Discussion: Sergeant Nyamane was unable to explain how it came about that a bullet fired from his firearm was retrieved from the plaintiff’s back when, on his version, the plaintiff was facing him and moving towards him when he fired both shots, one into the air and the second to the ground. He did not try to provide an explanation. This however did not deter Mr Jonase to argue that it is readily understood and logical that ‘a bullet that was fired into the air must come down’ with the result that only inference to be drawn is that the bullet that was fired into the air, caused the injury to the plaintiff. Mr Jonase did not take into consideration that it was Sergeant Nyamane’s version that the second shot, fired into the ground, must have penetrated the plaintiff’s body and not the shot fired into the air. However, the defendant has not provided any explanation how it is possible for the second bullet to penetrate the plaintiff’s back when he was facing Sergeant Nyamane when the shot was fired into the ground. The plaintiff’s version, namely that he was running away from Sergeant Nyamane when the shots were fired, is more probable. The plaintiff gave a detailed account of how, when and where he was when both shots were fired.

Findings: The evidence tendered by the defendant does not accord with the probabilities as it seems improbable that the plaintiff would proceed to confront Sergeant Nyamane with a bottle in his hand while pointed with a firearm and even more so after the first shot was fired. The version of the defendant is merely a fabrication solely invented to avoid liability. It is more probable that Sergeant Nyamane became irritated and furious with the plaintiff, who was running away from him, which lead to the shooting incident. The defendant’s version is rejected as false. The court is not persuaded that Sergeant Nyamane acted in self-defence and therefore the defendant has failed to discharge the onus of proving that Sergeant Nyamane’s actions were justified under the prevailing circumstances. The conduct of Sergeant Nyamane was wrongful and unlawful. Consequently, the defendant is vicariously liable for the injuries sustained by the plaintiff.

Order: The defendant is held liable for 100% of such damages, if any, as may be proven by the plaintiff or agreed upon between the parties.

Facts: An incident occurred in 2018 during an U19A water polo fixture between Rondebosch Boys’ High School and Bishops at the school premises of Bishops. The plaintiff (Ross Stone) was participating in the match for Rondebosch, and Bingo Ivanisevic for Bishops. Both were Grade 12 learners at the time. During the last chukka of the match, Bingo punched Ross. He did so with his fist, causing injuries to Ross’s face, teeth and jaw. Bingo immediately received a red card for brutality and the match was drawn to an early close. Thereafter, in accordance with Bishops’ school rules, disciplinary procedures and codes of conduct, Bingo was called to a disciplinary meeting at which he was found by Bishops to have breached the school rules and sanctioned, inter alia, to a seven-match ban.

Claim: A delictual claim for damages in which the plaintiff seeks to hold the defendants (Bingo and Bishops) jointly and severally liable, alternatively in such proportions as the court may determine, for payment of R645,931.13 plus interest and costs. By agreement, merits and quantum were separated and the trial thus proceeded on the merits only. Quantum was to be determined at a later stage if necessary. In that regard, as a result of the punch, Ross suffered a fracture of the alveolar margin of the maxilla, and the displacement of numerous teeth as well as a dislodged tooth, for which he was required to undergo dental surgery including a bone graft socket preservation for one of his teeth.

Discussion: Bingo, a former Rondebosch pupil, was routinely taunted by the Rondebosch spectators whenever he played for Bishops. An issue raised was whether Bishops had allowed the “gladiatorial spectacle”, but this was abandoned. Ross confirmed that his case was not that Bishops had permitted the water polo match to take place per se (all of the relevant witnesses, including Ross and Bingo, were unanimous that water polo is an aggressive, fast, contact sport), but rather that Bishops allowed Bingo to participate, despite allegedly being aware of his (also allegedly) prior poor disciplinary record. Bingo testified that he and Ross had previously played against each other in a number of water polo (and rugby) matches without any altercation or other incident. The only individual who supported Bingo’s version that Ross pulled him under water by the drawstrings of his cap was Bingo’s mother who was an unsatisfactory witness with a clear agenda to protect Bingo at all costs.

Findings:  It can fairly be concluded that Bingo’s punch to Ross exceeded any legitimate expectation for receiving an injury of that nature in a contact sport such as water polo. It follows that Ross’s claim against Bingo on the merits succeeds. As to Bishops, the court is left with the materially uncontested versions of the Bishops and Rondebosch witnesses, which was that no disciplinary record for Bingo existed before the incident with Ross. Rondebosch itself was content to play Ross against Bingo in that match; and Mr Pienaar (a teacher) confirmed that the incident was unexpected and took everyone (including probably Bishops) by surprise. The inescapable conclusion is that Bishops did not breach its duty to Ross by playing Bingo in the match, and could not reasonably have foreseen the incident occurring. It follows that Ross’s case against Bishops fails.

Order: The plaintiff’s claim against Bingo succeeds and he is declared liable to the plaintiff for 100% of such damages as might be agreed upon or proven. The plaintiff’s claim against Bishops is dismissed.

CLOETE J

Facts and issue: The plaintiffs instituted an action against the Minister of Police, National Commissioner of Police, Provincial Commissioners of Police, and National Director of Public Prosecution (defendants). The plaintiffs claimed delictual damages from the defendants based on the same cause of actions, namely, unlawful arrest and detention, together with malicious prosecution. The arrests of the plaintiffs were effected without warrants. The plaintiffs were charged with murder.

Discussion: The plaintiffs’ counsel submitted that the first plaintiff was detained for 311 days, the second plaintiff was detained for 349 days, the third plaintiff was detained for 331 days, the fourth plaintiff was detained for 352 days and the fifth plaintiff was detained for 351 days. The defendants submitted that the captain and other police officers who arrested the plaintiffs had a reasonable suspicion to arrest since the plaintiffs had been appearing on the list of suspects. According to the captain, he arrested the first and third plaintiff because their names were on the alleged list of suspects which was posted in the charge office notice board. The captain’s evidence was that he does not know how the branch commander prepared the list of suspects and further that he did not interview the author of the alleged list of suspects. The police officer should have a reasonable suspicion that a suspect committed an offence referred in Schedule 1. One may pose a question whether the names in the alleged list of suspects justified an arrest without a warrant, specially, when the list was prepared by a different person who did not personally arrest the suspects and did not disclose how the list was prepared.

Findings: The branch commander who prepared the list of suspects should have given his evidence and prove how did he prepare such list of suspects, to assess whether the suspicion was objective to warrant an arrest without a warrant. Since the branch commander has not been called to give his evidence and the alleged list of suspects was not discovered, such evidence remains hearsay evidence, such evidence remains inadmissible. The court finds that the arrest and detention of the plaintiffs without a warrant of arrest was unreasonable and unlawful.

Order: The defendants are ordered to pay an amount of R1,000,000 to each plaintiff, for unlawful arrest and detention, jointly and severally the one paying the other to be absolved. The total amount to be paid to all five plaintiffs is equal to R5,000,000.

Facts and issue: The plaintiff instituted an action against the Minister of Police and the National Director of Public Prosecutions, claiming damages in the amount of R3,000,000 for the alleged unlawful arrest and detention. The arrest was effected by the members of the SAPS who were acting within the course and scope of employment. The plaintiff alleges that SAPS lacked justification for arresting him, as no reasonable grounds existed to suggest that he committed the alleged crime of murder.

Discussion: At the time of the arrest, the arresting officer’s assessment was based on the statement of the deceased’s mother, who reported that her son had been murdered. A murder docket had already been opened and Ms Ntozini’s statement had already been obtained. During interviews with the arresting officer, Ms Ntozini consistently informed the arresting officer that the plaintiff and his co-worker had severely assaulted the deceased, leaving him lying at the scene bleeding. The fact that the plaintiff was not employed at the tavern at the time is irrelevant. What is pertinent is that he was present at the scene where the deceased was severely assaulted. Another significant consideration is that the arresting officer exercised cautionary measures to ensure that the correct person was arrested. At the time of the arrest, he was accompanied by his colleague and Ms Ntozini who had previously witnessed the assault and obtained a photograph of the suspect. Ms Ntozini positively identified the plaintiff as the suspect pointing him out to the police.

Findings: The suspicion that the plaintiff had committed a crime of murder was grounded on reasonable and solid circumstances. Consequently, the argument positing that the arresting officer should have verified the reliability of the information at his disposal is without merit. The inquiry is whether the plaintiff had proved animus iniurandi on the part of the members of the defendants. The plaintiff failed to adduce evidence to prove that this process was malicious due to the defendants’ actions. There is no evidence to suggest that there was a breach of the legal duty by the defendants against the plaintiff. Section 60(11) (b) of the CPA justifies detention in cases that are classified under Schedule 5. The arrest and subsequent detentions of the plaintiff were lawful.

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

Facts: An incident allegedly occurred in 2015 when O was assaulted with a stick on his hand by a teacher at the primary school, where he was a Grade R learner. Ms J testified that O came home during the afternoon and reported that he was assaulted with a knobkierie on his hand by his teacher. O’s hand changed colour and turned blue. She took him to the clinic for medical treatment. There was however no improvement. She took him back to the clinic and was referred to a hospital for further medical treatment. She also reported the incident at the school. According to the industrial psychologist this incident happened when O was at the tender age of six years. It negatively affected his psychological well-being. Post-incident, he will struggle to obtain Grade 12. He needs to be placed in a special school. He will only be employed in the informal sector doing unskilled labour and mostly light work, it is proposed.

Claim: Ms J issued summons out of this court against the MEC for Education, claiming damages on behalf of her son, O, in the amount of R7,000,000 for future medical expenses, loss of amenities of life, and pain and suffering. The educational psychologist testified that O was injured at a vulnerable stage of his development. This resulted in him performing far below the accepted level for his age. The incident affected his emotional functioning. He is fearful and does not feel safe. He cannot write nor spell words. The more years go by, the more his performance drops.

Discussion: The court refused the acceptance of the actuarial report into evidence, because the correct procedure was not followed. An objection was raised because it was handed in on the morning of the trial, at court, to the defence. The industrial psychologist made some postulations regarding pre-morbid and post-morbid earning capacity. See para [30]. However, the industrial psychologist is not an actuary. There is no evidence that O in future will not overcome his fear and anxiety. The fact that he failed Grade 3 cannot be ascribed to what happened to him in Grade R, as he passed Grade 1 and 2 after the incident. O’s future is definitely not destined for doom. He has retained his learning ability and is described as a child of average intelligence. The postulations of the experts move from the premise that O is psychologically scarred which will affect his future prospects in life. However, O did not lose the use of his hand and neither has he been rendered disabled in that regard. He suffered pain and discomfort for approximately two weeks in total, received medical treatment at a clinic and in hospital, and there is no evidence of any permanent disability.

Findings: The general speculative hypotheses that O will be affected by the incident in future, does not favour the case for the plaintiff, that O’s earning capacity will be so detrimentally and adversely affected because of this single incident. The only answer the educational psychologist could proffer regarding O’s slow developmental milestones is that one would have to then look at “other things”, which have not been explained to this court. The industrial psychologist equally provides no cogent answer to this conundrum. This court is not swayed by the evidence of these experts and does not accept the offer by the plaintiff to equally embark on conjecture and speculation in quantifying damages on O’s alleged reduced earning capacity. The plaintiff has failed to prove that O will suffer a reduction in his earning capacity. From para [19] the court looks at cases where awards were made for general damages.

Order: The MEC is liable for 100% of the plaintiff’s proven damages. The MEC shall pay R30,000 for damages suffered as a result of the assault. The MEC shall pay the costs of suit on a party and party basis on the magistrates court scale, to be taxed.

HENDRICKS JP

Facts and issue: The plaintiff, Koji, was arrested on allegations of public violence, arson and malicious damage to property. Whilst on bail, a consolidation of case dockets occurred with Koji eventually being tried in the Regional Court on multiple charges. Koji was found not guilty and discharged. Koji instituted an action for damages, against the National Director of Public Prosecutions, (NPA), for malicious prosecution claiming damages in the sum of R405,000. The parties agreed to a separation of liability and quantum. The defendant pleaded that concerned prosecutors acted with reasonable and probable cause.

Discussion: The NPA initiated the prosecution. Koji was charged with 9 counts on a consolidated charge sheet before the Regional Court. It is irrefutable that the prosecution against Koji failed on all 9 counts. That being so, what falls for determination is whether the NPA acted without reasonable and probable cause and that the NPA acted with malice. A prosecutor need not have evidence establishing a prima facie case or proof beyond a reasonable doubt when deciding to initiate a prosecution. Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable prosecutor would have done considering the information available at the relevant stage. The NPA placed much store on two statements. This was of March and du Plooy. It is undisputable that the statement of du Plooy was incomplete. That being so, it did not constitute an affidavit. The evidence of March failed to cure the date on which his affidavit was commissioned which is indubitably after the prosecution against Koji was instituted. March’s affidavit like that of du Plooy had its own procedural deficiencies, the primary of which was the date on which the statement of March was commissioned.

Findings: Koji was arrested on 20 July 2012. March’s statement was commissioned on 15 August 2012, whilst du Plooy’s statement was not commissioned. By a simple process of lateral reasoning, March’s statement could not have factually been part of the case of the NPA on the date it decided to initiate the prosecution against Koji. The NPA did not have at its disposal at the time it decided to prosecute, reasonable and probable cause in the form of grounds for suspicion of guilt on which the prosecutors were entitled to act. Given the absence of essential affidavit evidence the prosecutors seized with this matter could not have subjectively believed in the existence of reasonable and probable cause. There was no evidence for a reasonable person to conclude that Koji was probably guilty. Kunene and Monare were not seized with any evidence that could have formed reasonable and probable cause at the time of the prosecution. Koji has shown that the NPA acted without reasonable and probable cause and with malice in taking the decision to prosecute.

Order: The defendant is liable to compensate the plaintiff for damages, to be proven during the quantum stage of the trial, in respect of the plaintiff’s claim for malicious prosecution.

Facts and issue: This is an application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. The central issue for determination is whether damages in the amount of R30,000 awarded to Mr Masiteng, the applicant, arising from his unlawful arrest and detention, are fair and reasonable having regard to the circumstances of the case. The applicant launched an appeal in the High Court on the basis that the amount awarded was shockingly inappropriate for an unlawful detention of a period of 42 hours. The High Court found no evidence to suggest that the Regional Court failed to exercise its discretion judicially and dismissed the appeal with costs.

Discussion: The assessment of the amount of damages to award to a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff spent in detention. The duration of the detention is not the only factor that a court must consider in determining what would be a fair and reasonable compensation to award. The applicant’s leave to appeal in this court is largely predicated on the same grounds as those in the High Court, that the court erred in the assessment and evaluation of the quantum in respect of the unlawful arrest and detention. The High Court correctly reiterated that there was no evidence to suggest that in awarding the damages to the applicant, the regional court failed to exercise its discretion judicially. The criticism that the High Court misdirected itself in finding that the award was appropriate based on the applicant’s status and social standing cannot be sustained. The question now is, are there any exceptional circumstances in this case that would justify leave to appeal being granted.

Findings: The applicant has to satisfy the court that the circumstances are truly exceptional to hear this matter again after the application for leave to appeal was dismissed and the petition to this court was unsuccessful. The applicant failed to demonstrate that exceptional circumstances exist for leave to appeal to be granted. The applicant therefore did not meet the stringent test required. An application that merely rehearses the arguments that have already been made, considered and rejected will not succeed, unless it is strongly arguable that justice will be denied unless the possibility of an appeal can be pursued. Refusing leave to appeal will not result in a denial of justice.

Order: The application for leave to appeal is dismissed with costs.

Facts: One afternoon in 2021, the plaintiff together with her daughter visited Sunridge Village shopping mall with a view to having dinner at San Fernando’s restaurant. The plaintiff’s daughter was walking in front of her. The walkway in the mall is partly covered and consists of two types of paving bricks. The uncovered part has been paved with charcoal grey pavers. There is also what is called terracotta coloured paving bricks (red pavers) on the area under cover. The red floor surface is elevated and the charcoal grey floor surface is a little bit lower. There is a white line that has been painted on the charcoal grey pavers at the edge of the raised level caused by the curb stone. Whilst on their way to San Fernando’s restaurant the plaintiff stumbled, tripped and fell on the uneven floor. She was injured on her shoulder and subsequently underwent an operation in hospital.

Application: The appellant (defendant) is the owner of Sunridge Village shopping mall, Gqeberha. The respondent (plaintiff) instituted a civil claim against the defendant for damages arising from the alleged negligent conduct of the defendant relating to the maintenance of its shopping mall. The trial court granted an order separating the merits from quantum in terms of Uniform Rule 33(4). The trial court held that the defendant was negligent and therefore liable for such damages as may be proved by the plaintiff. With the leave of the Supreme Court of Appeal, the defendant now appeals to this court.

Discussion: It was submitted on behalf of the defendant that precautionary steps were indeed taken to ensure the safety of the patrons by means of demarcating the elevation with a white line to warn them of the potential hazard caused by the elevation. It was submitted that the fact that the plaintiff only noticed it at the last moment meant that she did not keep a proper lookout and did not have regard for her own safety. The defendant called an expert witness in civil engineering, who testified that the reason for the uneven floors was for the management of water flow towards the intake grids for the stormwater that runs off from the grey area. The defendant led no factual evidence explaining the reason why no further steps were taken, other than drawing the white line, to warn the patrons of the potential hazard. The defendant also led no factual evidence to explain the purpose of the white line. The evidence of the expert was based on the assumption that the white line was meant to be a warning of danger to the patrons.

Findings: The expert conceded that when he explained the purpose of the white line, his explanation was not based on his expertise as an engineer, since there is no provision for that in the building regulations, but he was simply stating that it was painted to make people aware of the raised level. The plaintiff was an elderly person visiting the mall for the first time. This court agrees with the trial court that the defendant reasonably foresaw the inherent danger created by the uneven floors and therefore owed a duty to the members of the public to guard against the eventuality of harm. It failed to take adequate steps to ensure the safety of the members of the public, such as putting up warning signs. The expert conceded that there is no requirement in the building regulations for the marking of a white line and that the defendant “bore a duty to make sure that the danger was clearly visible to people”. The white line did not serve the purpose.

Order: The appeal is dismissed.

TOKOTA J (POTGIETER J and NOBATANA AJ concurring)