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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION: GRAHAMSTOWN

CASE NO. 4094/2009

In the matter between:

SHAHIN SYED PLAINTIFF

and

METAF LIMITED t/a METRO CASH

AND CARRY DEFENDANT

JUDGMENT

BROOKS AJ:

INTRODUCTION

[1] The plaintiff is a thirty-eight year old man who is resident in Mthatha,

Eastern Cape. The defendant is a company with limited liability incorporated in

accordance with the laws of the Republic of South Africa. It carries on business

as a supplier primarily of consumable goods at various branches throughout the

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Republic of South Africa including its Mthatha branch situated at Vulindlela

Heights.

[2] It is common cause between the parties that on 2 December 2005 at

approximately 14h00 and at the premises of the defendant’s Mthatha branch the

plaintiff was wrongfully and unlawfully arrested by members of the South

African Police Service. The arrest, which was without a warrant, was at the

instance of the defendant’s Mthatha branch manager and led to the detention of

the plaintiff in police custody until his release on bail on 6 December 2005. The

defendant’s Mthatha branch manager had laid a charge of theft against the

plaintiff, who was obliged to appear in the magistrate’s court in Mthatha on 5

December 2005, 6 December 2005, 24 February 2006, 25 April 2006, 27 July

2006 and 15 September 2006 when the charge against him was withdrawn.

[3] In his particulars of claim the plaintiff alleged that the charge laid against

him was false and that in setting the law in motion against him the defendant’s

Mthatha branch manager acted wrongfully and maliciously with animus

iniuriandi. The issue of liability was determined by way of a judgment

delivered on 13 January 2011 by Plasket J which concludes with the following

finding:

“It is declared that the Defendant is liable to the Plaintiff for any damages the

Plaintiff proves in due course in respect of the Plaintiff’s malicious

prosecution.”

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[4] Thereafter the plaintiff prosecuted his claim for damages in this court.

The issues to be determined are the nature of those damages and the quantum

thereof.

[5] In his amended particulars of claim the plaintiff alleged that as a result of

the malicious prosecution and the arrest and detention he now suffers from the

following psychiatric injuries:

• a post-traumatic stress disorder;

• a panic disorder with agoraphobia;

• a major depressive disorder.

[6] Flowing therefrom, the plaintiff contended that he has suffered the

following damages:

• legal expenses – R30 000,00

• hospital expenses – R7 206,48

• future medical expenses – R 439 090,00

• loss of income – R 8 823 600,00

• general damages – R 1 200 000,00

It is apposite to record at this juncture that central to the plaintiff’s claims is the

assertion that as a result of the post-traumatic stress, panic disorder with

agoraphobia and major depressive disorder he is unable to resume his activity as

a businessman, which he conducted before his arrest, detention and malicious

prosecution. Accordingly he computed his claim for loss of earnings on the

basis of a calculation of all that he would have earned from conducting his

business for the remainder of his economically productive life. In his amended

particulars of claim he alleged that he also is no longer employable on the open

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labour market and has been left with no residual earning capacity. The loss of

income claim is subdivided as:

• A past loss of income in the sum of R 1 952 400,00;

• A loss of future income in the sum of R 6 264 900,00;

• A past loss of fringe benefits in the sum of R 372 100,00;

• A loss of future fringe benefits in the sum of R 777 800,00.

[7] In its plea the defendant generally denied the quantum of the plaintiff’s

claims and put him to the proof thereof. At the commencement of the

proceedings Mr DE LA HARPE, who appeared as junior counsel on behalf of

the defendant, moved an amendment to the defendant’s plea to import a final

paragraph in the following terms:

“Defendant pleads further that Plaintiff’s claimed damages arising out of the

alleged lootings of his business, the alleged actions of his partners, the

breakdown of his marriage and his inability to continue to conduct business

after his arrest were not events reasonably foreseeable and causatively

connected to the wrongful conduct of Defendant.”

APPLICABLE GENERAL LEGAL PRINCIPLES

[8] The plaintiff’s claim arises in the law of delict. It is trite that he must

establish causation on a balance of probabilities. An assessment of causation

involves a consideration of two questions, namely:

(a) whether any factual link exists between the defendant’s

conduct and the harm sustained by the plaintiff, and

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(b) whether the defendant should be held legally responsible for

the consequences of his conduct.1 The distinction between

the two questions can be explained as follows:2

“The first is the factual one and relates to the question as to

whether the negligent act or omission in question caused or

materially contributed to the harm giving rise to the claim. If it

did not, then no legal liability can arise and cadit questio. If it

did, then the second problem becomes relevant, viz. whether the

negligent act or omission is linked to the harm sufficiently

closely or directly for the legal liability to ensue or whether, as

it is said, the harm is too remote.”

[9] The test for legal causation is flexible. Factors involved include

reasonable forseeability of the loss, directness, the absence or presence of

a novus actus interveniens, legal policy, reasonability, fairness and

justice.3 The interplay between these factors and the concept of

remoteness is well demonstrated by the following:4

“Given the fact of a relationship between the act complained of and the

loss suffered, the ultimate inquiry to be made by the Court is whether

the conduct complained of, even if unlawful in itself, was unlawful in

relation to the loss suffered. This may merely be another way of

saying, in effect, that legal liability will not arise if the unlawful act

complained of was, in the chain of causation, so remote from the event

which directly brought about the loss that it would be against the

policy of the law to visit with legal liability the actor.”

1 HLOMZA v MINISTER OF SAFETY AND SECURITY 2013(1) SACR 591 (ECM) para [35]. 2 MINISTER OF POLICE v SKOSANA 1977(1) SA 31 (A) 34F-G. 3 STANDARD CHARTERED BANK OF CANADA v NEDPERM BANK LTD 1994 (4) SA 747 (A) 765 A. 4 STANDARD BANK OF SOUTH AFRICA LTD v COETSEE 1981 (1) SA 1131 (A) 1140 D.

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[10] The function of an expert witness is to assist the court to reach a

conclusion on matters on which the court itself does or have the necessary

knowledge to decide. It is not the mere opinion of the witness which is decisive

but his or her ability to satisfy the court that, because of his or her special skill,

training or experience the reasons for the opinion expressed are acceptable.5

[11] An expert witness must provide the court with objective and unbiased

opinion based on his or her expertise. An expert is not a hired gun who

dispenses with his or her expertise for the purpose of particular case. An expert

witness should state the facts or assumptions upon which his or her opinion is

based.6

[12] The facts upon which an expert’s opinion is based must be proved by

admissable evidence arising either within the personal knowledge of the expert

or from the evidence of other witnesses.7

[13] Expert opinion should not be the mere conjecture, surmise or speculation

of the expert witness. It should be his or her judgment in a matter of fact.8

[14] Inferences must be distinguished carefully from conjecture or

speculation. There can be no inference unless there are objective facts from

which to infer the other facts which it is sought to establish. In some cases the

other facts can be inferred with as much practical certainty as if they had been 5 MENDAY v PROTEA ASSURANCE CO. LTD. 1976 (1) SA 565 (E) 569 B-C 6 SCHNEIDER N.O. AND OTHERS v AA AND ANOTHER 2010 (5) SA 203 (WCC) 211 J – 212 B. 7 HOLTZHAUZEN v ROODT 1997 (4) SA 766 (W) 772 I. 8 P v P 2007(5) SA 94 (SCA) 99 J- 100 B.

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actually observed, whereas in other cases the inference does not go beyond

reasonable probability. However, if a basis in positive proven facts from which

the inference can be drawn is not laid, the method of inference fails and what

remains is mere speculation and conjecture.9

THE CLAIM FOR LEGAL EXPENSES

[15] In the amended particulars of claim the plaintiff alleged that he incurred

legal expenses due to his malicious prosecution. No evidence was led in

support of his claim and it was abandoned correctly on behalf of the plaintiff

during argument.

THE CLAIM FOR HOSPTAL EXPENSES

[16] During the course of the litigation the defendant accepted liability for the

payment of an amount of R7 206,48 to the plaintiff being the amount that he

had paid to Life St Mary’s Private Hospital in Mthatha for treatment pursuant to

his malicious prosecution.

THE CLAIM FOR FUTURE MEDICAL EXPENSES

[17] Central to the determination of an appropriate quantum to be awarded in

compensation for the plaintiff’s claim for future medical expenses is an

assessment of the evidence pertaining to the diagnosis of the medical condition

with which the plaintiff presents currently, a finding on the issue of causation in

9 CASWELL v POWELL DURRRYN ASSOCIATED COLLIERS LIMITED [1940] AC 152 (HL) 169; [1939] ALL ER 722 at 733 E-G; HOLTZHAUZEN v ROODT 1997 (4) SA 766 (W) 777 A –D.

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respect thereof and, if necessary, an assessment of the evidence pertaining to the

prognosis for his recovery.

[18] Each of the parties arranged for the examination of the plaintiff by a

suitably qualified clinical psychologist of their choice. Duly instructed by the

plaintiff Mr Mark Eaton assessed the plaintiff on 24 March 2015 and on 25

March 2015, the assessment extending over a total period of nine hours. A

variety of psychometric tests and questionnaires were used in the assessment

and in due course Mr Eaton produced a report. The defendant made use of the

services of Mr Willem Annandale, who assessed the plaintiff for the better part

of the day on 28 March 2015. He found that the difficulty demonstrated by the

plaintiff in the completion of assessment questionnaires restricted the extent to

which he was able to make use of psychometric testing. The difficulties,

however, did not prevent him from making an assessment and producing a

report.

[19] On 14 April 2015 the two clinical psychologists produced a joint minute,

which was handed in by agreement between the parties as Exhibit “B”. An

earlier version of the document, in unamended and unsigned form, was also

included in Exhibit “A”, being a bundle of documents collated by the plaintiff’s

attorney of record. The joint minute records agreement between the clinical

psychologists on the following aspects of the plaintiff’s medical condition:

“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.

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3. Mr Syed was apparently asymptomatic of any cognitive and executive

functioning disabilities prior to the incidents 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 severe

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.”

[20] The joint minute also records the differences in the opinions of the expert

witnesses who compiled it. Mr Eaton opined that due to the incidents of 2005

the plaintiff acquired passive and highly dependent personality traits. Mr Eaton

regarded his prognosis for a return to his pre-incident level of emotional

stability, cognitive and executive functioning, and personality functioning as

“very poor”. He concluded that the prognosis is very poor for the plaintiff’s

current and future personal, social and occupational functioning, even with

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psychological therapy and psychiatric treatment. He opined that the plaintiff is

to be regarded as “permanently psychologically/psychiatrically disabled”, never

to be employable on the open labour market, due to:

• the nature and severity of the various cognitive and

executive disabilities he has acquired;

• the nature and severity of the personality changes (the

passive and highly dependent traits) he has acquired;

• the nature and severity of the losses he has sustained;

• the chronicity and pervasiveness of the emotional disorders,

cognitive/executive disabilities, personality changes and

losses since the incident to date;

• the fact that he has experienced very limited containment in

symptoms despite various psychiatric interventions;

• the fact that he has experienced very limited containment in

symptoms despite a great deal of financial and emotional

support from his friends in South Africa and his family in

Bangladesh; and

• the fact that he has experienced very limited containment in

symptoms despite continuing to practice his religion.

[21] Mr Eaton’s evidence supported his opinion, and his view that the

plaintiff’s prognosis is poor was maintained unwaveringly. In the light thereof

he recommended a treatment plan consisting of psychotherapy, psychiatric

consultations, psychiatric medication and the likelihood of psychiatric inpatient

treatment in the future. In his view there would be a lifelong need for

psychotherapy.

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[22] The joint minute records Mr Annandale’s opinion that the plaintiff’s

prognosis is positive. He opined that with comprehensive treatment the plaintiff

can be expected “to again be functioning at a suitably high personal and social

level to also resume his career within 2 years.”

[23] In giving evidence Mr Annandale supported and developed the opinion

which was recorded in the joint minute. He confirmed that the plaintiff suffers

from a major depressive disorder, which is moderate to severe, a panic disorder,

agoraphobia and a post-traumatic stress disorder. He expressed the opinion that

the plaintiffs condition and disorders had developed “in an overlapping

sequence” which “compounded his condition” and which “led to a gradual

decline in functioning and caused them to become chronic”. The overlapping

sequence of events was identified as the plaintiff’s losses of his business and his

marriage which resulted in him having very little contact with his daughter.

These events were described to some extent by the plaintiff in his evidence.

[24] Mr Annandale explained that a post-traumatic stress disorder does not

always lead to the development of other conditions. Hence, they are not to be

regarded as inevitable or predictable. Attributing the post-traumatic stress

disorder to the plaintiff’s arrest and detention, he opined that the panic disorder,

agoraphobia and major depressive disorder were not necessarily linked to the

arrest. Inevitably, and quite correctly, it was put to Mr Annandale under cross

examination that this opinion differed from that recorded on the joint minute

inasmuch as certain portions thereof could be interpreted as agreement between

Mr Annandale and Mr Eaton that there was a causal link between the plaintiff’s

arrest and detention and all of the plaintiff’s current disorders. Mr Annandale

explained that subsequent to the authorship of the joint minute he became aware

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that causation was an issue in this matter and that, at the time of preparing the

joint minute, he did not explore the issue of causation. Having heard the

evidence, it was his opinion that the additional disorders were not inevitable.

Moreover, it did not automatically follow that the plaintiff’s experience of the

arrest, detention and malicious prosecution led to all the sequelae, the loss of his

business, the breakdown of his marriage or the onset of his additional

psychological conditions. In his opinion, while links exist the plaintiff’s arrest

and detention was not the only cause of all and everything that followed.

[25] In my view, this apparent modification of Mr Annandale’s opinion was

appropriate. He gave logical reasons therefor in his evidence, including, but not

limited to, the development of 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.

[26] In support of his opinion that the plaintiff’s prognosis is positive, Mr

Annandale highlighted the following aspects which emerged from the evidence:

• the treatment to which the plaintiff had hitherto been

exposed was less than ideal and was ineffective. Medication

prescribed to him had been incorrectly administered and had

not been accompanied by any psychotherapy or mechanisms

by which even a suggestion of the hope of recovery had been

communicated to the plaintiff;

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• in the result the plaintiff’s contact with medical practitioners

had been counter-productive;

• there are positive aspects supporting a positive outcome of

proper treatment to be found in the plaintiff’s childhood, the

absence of any pre-morbid condition, the absence of any

substance abuse or personality disorder, the fact that the

plaintiff is an intelligent, well educated person with strength

of character and a support system, the fact that the plaintiff

expresses a desire to be cured, the advantage of his Muslim

faith and the fact that his depression is reactive.

[27] In my view, it would not be inappropriate to record that in giving his

evidence Mr Annandale conveyed a sense of measured gravitas indicative of his

many years of experience in his field. His opinion was explained in a logical

and justifiable manner which eliminated any sense of what might otherwise

have appeared to be capricious optimism not grounded in an appropriate degree

of professional independence.

[28] In sharp contrast, Mr Eaton was consistent at every turn in his prognosis

that the plaintiff will remain resistant to treatment and that his conditions are

irreversible. Unlike Mr Annandale, who acknowledged the existence of

negative factors and made logical concessions where required, Mr Eaton

steadfastly refused to entertain the positive aspects evident which cumulatively

hold the promise of a positive outcome for the treatment of the plaintiff and

failed to make concessions where required. The result was an inescapable

impression that Mr Eaton’s general negativity demonstrated more a lack of

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independence as an expert witness than an opinion informed by objective

professional insight and based on facts.

[29] There is a further aspect of the evidence led in respect of the plaintiff’s

claim for future medical expenses which is deserving of mention at this point.

The plaintiff also led the evidence of Dr Helmut Erlacher, a qualified

psychiatrist and medical practitioner. He gave evidence in support of an

assessment of the plaintiff on which he had reported on 13 February 2014. His

diagnosis of the plaintiff was that he had developed significant signs and

symptoms of a post-traumatic stress disorder and “over the years” he also met

the criteria for co-morbid panic disorder with agoraphobia. Whilst the two

clinical psychologists who gave evidence had made a separate diagnosis of

major depressive disorder, Dr Erlacher had not. He explained that whilst all

three practitioners had identified the necessary ingredients for a diagnosis of

major depressive disorder, he regarded it as forming part of the post-traumatic

stress disorder rather than a separate illness that came from somewhere else. Dr

Erlacher confirmed that the plaintiff’s use of psychiatric medication hitherto

prescribed had been ineffective due to the incorrect and erratic manner in which

it had been taken. In confronting the thorny question about the clear difference

in the opinions of the two clinical psychologists as to the plaintiff’s prognosis,

Dr Erlacher opined that whilst he thought the prognosis was “guarded” he

thought that the plaintiff “would definitely improve with proper treatment”. He

also agreed with a statement made in a medico-legal report on the plaintiff’s

condition prepared by Dr Anita Padmanabhanunni (a qualified clinical

psychologist consulted by the plaintiff but who was not called to testify on his

behalf) that “with proper psychological treatment of the post-traumatic stress

syndrome, panic attacks and associated MDD, there is a reasonable prospect

that [the plaintiff] could be restored to normal functioning and that on this basis

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he could start to rebuild his life.” This was the premise upon which Dr Erlacher

explained his own use of the term “guarded” in connection with the prognosis.

He stated:

“Where my guardedness comes in is whether he can do the same things he did before

again. I would have little doubt if with proper treatment he will be able to be

gainfully employed and do something useful with his life, but I don’t think he could

do his previous things.”

[30] In my view, Dr Erlacher fairly conceded that his view of the plaintiff’s

prognosis differed from Mr Easton’s. Dr Erlacher demonstrated the levels of

professional insight and independence which are desirable in an expert witness

and gave his evidence and the reasons for his views in a logical manner. That

evidence was of assistance in the determination of which of the clinical

psychologists’ views should be adopted as a basis for the consideration of an

appropriate second treatment regime for the plaintiff. He openly supported the

treatment plan proposed by Mr Annandale which incorporated in-patient

treatment of the plaintiff at Riverview Manor, a privately run specialist

rehabilitation centre in KwaZulu-Natal.

[31] In his dogged adherence to the opinion that the prognosis of the plaintiff’s

post-traumatic stress disorder was “extremely poor to non-existent”, Mr Eaton

would not agree that the plaintiff was best treated at Riverview Manor.

However, he gave no basis for holding that opinion. All that can be said is that

this inflexibility was commensurate with Mr Eaton’s refusal to concede that the

plaintiff had hitherto not had any psychotherapy (an attitude inconsistent with

detail contained in Mr Eaton’s own report) and his refusal to agree with the

opinions expressed by Dr Erlacher and Mr Annandale that the plaintiff’s

condition was best treated with psychotherapy. In my view, when seen against

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the background of Mr Eaton’s failure to mention any of the positive indicators

in his report which had been identified by Mr Annandale, and Mr Eaton’s

adherence to an emphasis only of all the negative factors in the justification of

his own opinion, this unmotivated refusal to see any merit in the views

expressed by Dr Erlacher and Mr Annandale on the benefits to be derived from

exposing the plaintiff to psychotherapy is indicative of bias towards the

maximization of the plaintiff’s claim. This is particularly so because

psychotherapy formed part of Mr Eaton’s treatment plan. Such bias is

destructive of the potential value to be found in the evidence of any expert and

must result in his or her evidence being regarded, at best, as unhelpful.

[32] What remains is the opinion of Mr Annandale that the plaintiff’s post-

traumatic stress disorder was caused by the unlawful arrest and detention and

the malicious prosecution but is treatable with a positive prognosis. The anxiety

and agoraphobia are, at worst, later developing elements of the post-traumatic

stress disorder. The major depressive disorder was not inevitable and is

reactive. In my view, this opinion establishes factual causation in respect of the

post-traumatic stress disorder. The development of such a condition after the

experience of the unlawful arrest and detention and malicious prosecution is

sufficiently closely connected to the experience to establish legal causation.

The same cannot be said for the later emerging panic disorder and agoraphobia

or for the development of the major depressive disorder, which is too remote.

[33] It follows that I am of the view that the opinion of Mr Annandale on the

plaintiff’s prognosis, conservatively supported by the opinion of Dr Erlacher,

should be accepted and the plaintiff compensated accordingly. According to

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the evidence of Mr Annandale, the costs associated with an appropriate future

medical treatment regime for the plaintiff will be:

• blood tests for four years at a cost of R 8 260,00;

• psychiatric medication at a rate of R 400,00 per month for

two years at a cost of R9 600,00;

• consultations with a psychiatrist every six months for a

period of two years at a cost of R 4 800,00;

• in-patient treatment at Riverview Manor at a cost of R

75 000,00;

• psychotherapy for two years at monthly intervals at a cost of

R 9 200,00.

[34] There being no challenge to the accuracy of the costing set out in Mr

Annandale’s recommended treatment plan, I am of the view that the total cost

thereof, a sum of R 116 860,00, represents the value of the plaintiff’s claim for

future medical expenses.

THE CLAIM FOR LOSS OF INCOME

[35] It is common cause between the parties that the plaintiff came to South

Africa from Bangladesh in 2000. Initially he conducted business in

Grahamstown. Financial statements prepared on his behalf in respect of his

business activities trading as “Grahamstown Takeaways” for the financial years

ended on 28 February 2003 and 28 February 2004 were handed in as part of

Exhibit “A”. Those financial statements record profits in the amounts of

R44 073,00 and R48 333,00 respectively.

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[36] It is apparent that the plaintiff thereafter relocated to Mthatha and opened

trading stores. The first was in the vicinity of Mqanduli and was named

“Kwantozonke”. It was opened in 2004. This was followed by “Zandile”, a

general dealership which the plaintiff opened close to Coffee Bay in 2005. The

third business which the plaintiff opened was called “Townview”. This

business was also opened in 2005 in the Mqanduli district and was conducted in

partnership with a certain Mr Liton. The fourth business opened by the

plaintiff, also in the Mqanduli district and in partnership with Mr Liton, had no

name allocated to it.

[37] It is apparent from the plaintiff’s evidence that, presumably also in 2005

and prior to his unlawful arrest and detention, he opened a fifth shop which he

called “Ntokwane”. Although he said he could not remember when he closed

the shop the evidence suggests that it was prior to the unlawful arrest and

detention. The closure was prompted by the theft of stock from the shop and

appears to have been done voluntarily. According to the further particulars

provided by the plaintiff on 15 August 2014 in response to the defendant’s

request, while the plaintiff was in detention the looting of Ntokwane occurred.

This is not borne out by the evidence.

[38] According to the plaintiff’s further particulars, the business known as

Zandile was also looted whilst he was in detention. The allegation was made in

the further particulars that the plaintiff was unable to pay his rental at Coffee

Bay due to his detention and the looting of the store. It was also alleged that the

partnership with Mr Liton was terminated due to the plaintiff’s financial

position and emotional condition following his arrest and detention. Lastly, it

was alleged in the further particulars that due to the plaintiff’s psychological

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condition he was unable to challenge the termination of the partnership and he

was unable to resurrect the looted stores.

[39] Financial statements prepared in respect of the plaintiff’s business

activities after 28 February 2004 were included in the bundle handed in as

Exhibit “A”. They comprise of two sets of financial statements described as

pertaining to “Kwantozonke Store”. The first purports to reflect the business

activities for the period 1 March 2004 to 28 February 2005 and the second for

the ensuing period up to 31 December 2005.

[40] The financial statements were scrutinized by Mr Mark Edwards, a

forensic accountant who gave evidence on behalf of the plaintiff, and by Mr

Wessel Greeff, a chartered accountant who gave evidence on behalf of the

defendant.

[41] From a factual perspective, evidence in support of the plaintiff’s claim for

loss of income was given by the plaintiff himself and by Mr Azar Khan, who

was initially involved in the plaintiff’s early business activities in Grahamstown

and for whom the plaintiff worked for some time after the failure of the

plaintiff’s business in 2005.

[42] It is necessary to record that the plaintiff’s loss of earnings claim has been

prepared and presented as an arithmetically calculated loss of income which is

based upon a reconstruction of the financial statements pertaining to the

plaintiff’s business activities during the period 1 March 2004 to 31 December

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2005. This is in accordance with his pleaded case. Whereas there was a

passing reference to “a loss of earning capacity” in conjunction with the expression

of the plaintiff’s claim as “a loss of earnings” in paragraph 22.5 of his amended

particulars of claim, no evidence was presented in support of a claim for loss of

earnings quantified on that basis.

[43] A number of difficulties emerge from the plaintiff’s evidence. At times

his evidence was vague and unreliable, which is not to say that he was

dishonest. In his demeanour he appeared somewhat lost and vulnerable, and

sincere in his plea that he does not wish to remain as he is for ever. The

resultant difficulties can be summarized as follows:

• he could not indicate when he had closed the Ntokwane

store;

• he stated that he could not remember dates and amounts;

• he indicated that he sometimes remembers things and at

other times does not;

• he was not sure whether what he said would change from

day to day;

• at one stage he stated that he did not know whether the

financial statements under scrutiny were for all four stores

combined under the name Kwantozonke;

• he was unsure whether he had given the documentation he

had pertaining to all four of his stores to his accountant

(although the expert report prepared by Mr Edwards

indicates in a number of ways that he must have done);

• he disputed the correctness of the financial statements for the

period ended 31 December 2005 (although Mr Edwards did

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and used them as the basis for his calculation of the

plaintiff’s claim for loss of income);

• in giving evidence that his managers had run away from his

stores, he could not dispute that the stock losses experienced

may have been due to the managers taking the stock with

them;

• he also stated that if his managers had not left the looting

might not have taken place;

• he said that when he gave evidence with regard to numbers

he was sometimes right and sometimes wrong;

• he conceded that when he gave evidence as to an average

mark-up on the cost price of goods sold in his stores of

thirty-five percent, that was not an accurate figure;

• he contradicted himself on occasions and also gave evidence

which contradicted the evidence of his own experts. For

instance:

(a) in his evidence the plaintiff said that he purchased

between fifty percent and sixty percent of his stock from

the defendant, whereas he told Mr Edwards that he

purchased more than eighty percent of his stock from the

defendant;

(b) in his evidence the plaintiff stated that he did not go to his

stores for about ten days after the unlawful arrest and

detention, whereas the expert report prepared by Dr Anita

Padmanabhanunni and Prof David Edwards (who were

not called to testify on behalf of the plaintiff but whose

report formed part of the indexed court file and was

referred to in evidence) indicated that the plaintiff had

checked on his businesses on the day of his release;

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(c) in his evidence the plaintiff said that when he did go to

check on his stores he found that there was stock on hand

at a value of between R 5 000,00 and R6 000,00, whereas

in the report prepared by Dr Padmanabhanunni and Prof

Edwards it was recorded that he had said that there was

stock on hand worth only R2 000,00 in the stores that

were looted;

(d) in his evidence the plaintiff said that no stock had been

removed form Townview store and that it was “full of

stock”, whereas it was apparent from the evidence of Mr

Edwards and the financial statements for the period ended

31 December 2005 that there was not any stock after the

unlawful arrest and detention;

(e) in giving evidence about his wife divorcing him in

October 2007 the plaintiff stated initially that he did not

remember why his wife wanted to get divorced, whereas

on the following day in his evidence he stated that his

wife did tell him the reason – she said that he was “not

that Shaheen anymore that you were before”;

(f) in his evidence, Mr Khan, said that the plaintiff had sent

his wife to the United Kingdom after his unlawful arrest

and detention in order to look for work and that when she

left there was no talk of divorce. This was confirmed by

the plaintiff in his evidence;

(g) in his evidence the plaintiff also said that he did not think

that he and his wife would have got divorced were it not

for his unlawful arrest and detention and his medical

condition, but he was not definite about that;

23

(h) in his evidence in chief the plaintiff said that he opened

Ntokwane store. The clear impression created by the

evidence was that Ntokwane store had been opened

before the unlawful arrest and detention. However in

cross examination the plaintiff stated unequivocally that

before the unlawful arrest and detention all his business

had closed already;

(i) in giving his evidence in support of the plaintiff’s claim

for loss of income, Dr H J van Daalen, an industrial

psychologist, stated that Ntokwane store was opened after

the financial statement for the period ended 31 December

2005, in other words after the unlawful arrest and

detention. This was also alluded to in the evidence led

from Mr Khan;

(j) in the further particulars provided by the plaintiff in

response to the defendant’s request, the plaintiff stated

that there were between one hundred and two hundred

people in the cell in which he was detained, the same

figure as apparently given to Dr Padmanabhanunni and

Prof Edwards, whereas in his evidence the plaintiff

claimed that the number of people was in excess of two

hundred;

(k) the plaintiff admitted in his evidence that he had

concealed documentation pertaining to his stores in order

to defraud the South African Revenue Service.

24

[44] In my view, certain aspects of the evidence led from Mr Khan also cause

difficulties for plaintiff in the prosecution of his claim for loss of income. They

can be identified as follows:

• Mr Khan testified that he had known the plaintiff since 2000

and that the plaintiff worked for Mr Khan at his Zamakosi

supermarket as a manager;

• Mr Khan generally gave the impression that the plaintiff was

working for him at the time that he gave his evidence,

whereas according to a report prepared by Mr Edwards, the

plaintiff’s forensic accountant who gave evidence, since July

2012 the plaintiff has been working for a certain Mr Amaar,

a Pakistani national, which was also reflected in the

plaintiff’s further particulars;

• in addition, Mr Khan indicated at one stage that the plaintiff

was working for him at Zamakosi supermarket at the time of

the unlawful arrest and detention. This would appear to be

consistent with that portion of the plaintiff’s own evidence in

which he stated that all his businesses had closed before the

unlawful arrest and detention. However, it is inconsistent

with that portion in the plaintiff’s evidence in which he

stated that he worked at Zamakosi supermarket from 2006

until he got sick in 2009;

• Mr Khan stated that when the plaintiff worked at Zamakosi

supermarket he worked as a manager and did his job

properly. However, he also testified generally to the effect

that the plaintiff had worked for him after 2009 and had

received a salary which he did not really deserve;

25

• the only documentary proof of the payment of a salary was

in the form of the salary slips contained in the bundle handed

in as Exhibit “A”. It is apparent from these slips that the

income was given as a “salary”, that PAYE was deducted

therefrom, that UIF contributions were deducted therefrom

and that the entity effecting payment would be entitled to

deduct the payments to the plaintiff as an expense.

[45] To the extent that the plaintiff’s accountant at the time of his unlawful

arrest and detention, referred to by the plaintiff in his evidence as “Douglas”

may well have been able to address same of the lacunae in the evidence relating

to the plaintiff’s business activities in general and his claim for loss of income

in particular, unfortunately he was not called upon to do so. It is apparent from

the evidence of Mr Edwards that he had been in contact with “Douglas” in

connection with the proceedings.

[46] A similar observation must be made in respect of Mr Liton and the person

referred to as Mr Amaar. Both may have made a significant contribution

towards a better understanding of the plaintiff’s claim for loss of income. No

information was provided as to whether or not they remained available to the

plaintiff as potential witnesses and neither was called upon to testify.

[47] In the absence of more compelling evidence to the contrary, it seems to

be clear in my view that the salaries paid to the plaintiff by Mr Khan

demonstrate characteristics which exclude their categorisation as “ex gratia”

payments which should be excluded from any computation of his loss of

earnings. That the plaintiff was obliged to attend work and did so pursuant to

26

the terms of a contract of employment entered into between him and Mr Khan

seems clear. The fact that Mr Khan might have paid the plaintiff more than he

would have paid another employee is irrelevant.10 Moreover, in seeking details

with regard to the plaintiff’s claim for loss of earnings in its request for

particulars for trial the defendant was referred by the plaintiff to the report

prepared by Mr Edwards. In that report Mr Edwards stated that the plaintiff

intends to continue working for Mr Amaar in the foreseeable future. This

aspect was not addressed by the plaintiff in his evidence.

[48] For the various reasons set out in the preceding paragraphs, in my view

the plaintiff’s evidence is unreliable and, where it is in conflict with the content

of his financial statements or the evidence of other witnesses falls to be rejected.

[49] As should now be apparent, the necessary assessment of the evidence

given by the two chartered accountants on the plaintiff’s financial statements

was not aided by the difficulties presented in the plaintiff’s evidence.

[50] 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 31 December 2005 the

plaintiff’s businesses 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

10 SANTAMVERSEKERINGSMAATSKAPPY BPK v BYLEVELDT 1973 (2) SA 146 (AD) 169 F-H.

27

claim for damages for a loss of income. The financial statements do serve,

however, as evidence of the lack of any profit in the business.11

[51] Both chartered accountants were obliged to attempt some form of

reconstruction of the financial statements in a way that would determine a more

accurate picture of the financial aspects of the plaintiff’s business activities.

[52] Mr Edwards utilized the financial statements and made assumptions in an

attempt to determine the plaintiff’s earnings prior to his unlawful arrest and

detention. The primary assumption was that stock would have been on hand on

2 December 2005. He then used the information in the financial statements to

determine what stock levels he believed would have been on the store premises.

In my view, the difficulty which arises immediately with this approach is that

the only evidence upon which the primary assumptions could rely would be the

plaintiff’s evidence. The difficulties inherent in the unreliability of that

evidence have been identified. The primary assumption takes no account of the

conflicting evidence from the plaintiff himself about stock levels, including the

evidence that the stores had been closed before his unlawful arrest and

detention.

[53] The difficulties with the approach adopted by Mr Edwards do not end

there. In his first report, Mr Edwards calculates an estimate of profit for the full

2006 financial year which factors out the stock losses. This figure is relied

upon by the plaintiff in pleading his case. It is also relied upon by the plaintiff’s

actuaries, Munro Forensic Actuaries, in their quantification of the plaintiff’s

11 HEESE obo PETERS v ROAD ACCIDENT FUND 2014 (1) SA 357 (WCC) 371 – 372.

28

loss of income. It was only in a further report, prepared by Mr Edwards in

response to the report prepared by the defendant’s expert, Mr Greeff, that Mr

Edwards imported a reference to the payment of wages in cash (not disclosed on

the financial statements). It is not insignificant to remark that there was no

evidence from the plaintiff in this regard. From that point on the poverty

inherent in Mr Edwards’ approach was identified more strongly. He was

constrained in cross examination to concede that the petrol expenses, the rental

expenses and the wages and salaries were all understated in the financial

statements. Moreover, if the purchases reflected in the financial statements

referred to purchases made from the defendant only, there would not even have

been a gross profit. He opined that there must have been cash purchases and

cash sales which were not reflected in the financial statements. He conceded

that if those cash purchases and cash sales were ignored the income statements

would show a loss. He also was constrained to concede that he did not know

the extent of the cash purchases and cash sales or, pertinently, whether the

amount received from the cash sales was the equivalent of the amount of cash

paid out for purchases and store-related expenses.

[54] Mr Edwards’ report made no reference to cash payments for purchases or

expenses, nor to unrecorded cash sales. Nor did these feature in the plaintiff’s

case as pleaded or motivated in his evidence. In my view, in these

circumstances Mr Edwards opinion is clearly speculative, without an evidential

basis, and should be ignored.

[55] A third reason why the opinion of Mr Edwards appears to be flawed is

that he conceded in evidence, quite correctly, that the method used by him to

estimate a value for closing stock (in order thereafter to estimate profit) is not

29

considered to be an acceptable accounting practice. Mr Edwards had regard to

the purchases figures and the sales figures disclosed in the financial statements

and assumed a constant ratio between the two. He used this assumption as the

basis for assuming a constant ratio between stock levels and sales. He defended

this approach by claiming experience in “retail analysis” and by stating that in

the plaintiff’s case “we are trying to close gaps where information is not

available.” The difficulty which arises when reliance is placed upon sales

figures to determine the value of stock at any particular time is that, in

accordance with acceptable accounting practice, the value of stock is always

shown on a balance sheet at the cost thereof. Applying a stock turnover factor

(assuming one has reliable information upon which to calculate the monthly

turnover in stock) to sales, as done by Mr Edwards, makes use of a figure that is

inclusive of gross profit realized by sales made and has the effect of over-stating

stock to the extent of the gross profit included therein. In my view, even if one

were to overlook the deviation from acceptable accounting practice, which I am

not convinced has been justified on the facts of this matter, the model implodes

when cognisance is taken of the poverty of the information upon which it has

been based. Once it has been accepted that the financial statements are

substantially deficient in their recordal of purchases, sales and stock holding

figures, and the deficiency is not supplemented by acceptable evidence from the

plaintiff or his erstwhile accountant, how can reliance be placed upon the

figures that are disclosed as a basis for the assumptions made by Mr Edwards?

Once again, the principle that expert evidence has been demonstrated in this

matter. Moreover, even if reliance could be placed upon the outcome of the

assumptions made by Mr Edwards in respect of the ratios with which he worked

and the figures to which he applied them, in my view no acceptable factual

basis was laid which would entitle the court to find that a departure from

acceptable accounting practice was justified.

30

[56] In my view, the most accurate perspective to emerge from the evidence of

Mr Edwards is encapsulated in his concession in cross examination that he

would not be able to come to a complete answer in this matter because of the

incomplete facts.

[57] Mr Greeff was confronted by the same difficulty posed by the

unreliability of the deficient financial statements as Mr Edwards. The main

point of departure between the two expert opinions was the methodology to be

used in estimating the theoretical value of the stock which should have been on

hand as at 2 December 2005. He produced a supplementary expert report on 25

February 2016 in which he dealt with the evidence led previously.

[58] Mr Greeff opined that in order to estimate the theoretical value of stock

on hand at any given point in time the recognised accounting practice is to use

the gross profit method. This recognises the direct relationship between items

available for sale, sold and the profit margin realised. In the absence of detailed

stock records the cost of items sold is calculated by taking the stock on hand

figure for the commencement of the period under consideration, to which is

added the cost of the stock purchased during the period. From the sub-total

which results, the cost of the stock remaining at the end of the period is

deducted to give the cost of sales over the period. The methodology relies upon

the relative relationships that sales, cost of sales and gross profit have to one

another. It is accepted accounting practice therefore to utilise any two of these

to calculate the third.

31

[59] Mr Greeff identified that the gross profit percentage reflected in the

period ended 28 February 2005 financial statements remained constant for the

period ended 2 December 2005. He used this percentage to calculate the

theoretical stock on hand as 2 December 2005. He based his calculations purely

upon the content of the financial statements provided.

[60] Importantly, Mr Greeff set out in his report the various areas where the

plaintiff’s expenses had been understated. He demonstrated that, even taking a

theoretical value for closing stock as at 2 December 2005 into account, the

corrections to the expenses shown on the financial statements would result in a

demonstration that the plaintiff’s stores were running at a loss. He highlighted

in his evidence that there was no evidence of how the understated expenses

were financed and one could not rule out the possibility that they were being

financed by creditors. In an obvious challenge to his evidence, it was put to him

that one must assume the undisclosed income to cater for known expenses. In

my view, he correctly contended that one cannot do so in the absence of an

acceptable factual basis without descending into the unreliable arena of

speculation. He concluded that the plaintiff’s stores were not profitable. This

conclusion went unchallenged.

[61] As something of a fall back position, it was put to Mr Greeff that when he

gave evidence the plaintiff stated that he earned about R 10 000.00 per month

from his stores. Not only was this amount unsubstantiated, but Mr Greeff

correctly identified that if the plaintiff spent this amount of money each month

it was not reflected in the financial statements. Moreover, the source of the

money spent would not necessarily be from profits. One could not rule out the

prospect that given the unprofitability of the stores, such drawings as the

32

plaintiff may have been making may well have been at the expense of his

creditors and, in effect, have exacerbated the poor performance of the business.

In the absence of the acceptable and reliable evidence, one could not speculate

about the amounts that the plaintiff would have retained from his businesses.

[62] Dr H J van Daalen, an industrial psychologist, was also called to give

evidence in support of the plaintiff’s claim for loss of income. He had

consulted with Dr Peter Whitehead, an industrial psychologist who had been

appointed by the defendant to be of assistance in the matter and a joint minute

had been prepared. Dr van Daalen conceded that the joint minute had been

prepared using a transcript of the evidence and had relied upon the financial

statements. Correctly, he was unwilling to enter into a debate on any of the

accounting principles and a frequent response given by him in his evidence was

that he would defer to the accountants who had given evidence in the matter.

What was of concern is that Dr van Daalen initially was not prepared to concede

that if the plaintiff’s stores were in fact not making a profit his assessment of the

plaintiff’s loss of income would have to be adjusted. Closer exploration of his

evidence in cross examination revealed that he had made a number of

assumptions without checking the correctness of the basis thereof, with the

result that his assumptions were incorrect. Eventually, he agreed that if the

court found that at the time of the plaintiff’s unlawful arrest and detention his

businesses were running at a loss, he would say that the plaintiff had not

suffered a loss of income.

[63] Serious concerns about the independence of Dr van Daalen as an expert

witness emerged again when he was being asked in cross examination about the

plaintiff’s future income earning prospects. Whilst he was ready to concede

33

that the plaintiff’s current earnings were R 12 000,00 per month, he was not

prepared to consider an elevation of his estimate of the plaintiff’s likely future

income, which he had opined was R 5 000,00 per month. The stumbling block

which he foresaw was the prospect of the plaintiff suffering “a relapse”. He

described the plaintiff as a person whose work history “was tainted” and he was

reluctant to reconsider his assessment in the light of the evidence given by Mr

Annandale who considered that the plaintiff’s prognosis was positive. His

unmotivated adherence to his opinion that the plaintiff would only be able to

command the salary of R 5 000,00 based on “market forces”, being a salary in

respect of “basic administration work in the Transkei”, in my view, when seen

against the evidence that the plaintiff’s current earnings were R 12 000,00 per

month and against the evidence of Mr Annandale, demonstrates that Dr van

Daalen’s opinion lacked depth and independence. It is remarkable that, as an

industrial psychologist, he was unwilling to concede that the outcome of the

future medical treatment was relevant when assessing the plaintiff’s future

income prospects.

[64] Turning to the issue of factual causation, in my view there is no reliable

direct evidence of any factual link between the unlawful arrest and detention

and the closure of the plaintiff’s stores. His decision to close his stores appears

to have been influenced strongly by incidents of looting and the abandonment

by the plaintiff’s managers of their employment. No evidence was led on these

events other than the references thereto by the plaintiff and Mr Khan. That

evidence is contradictory and confusing, leaving open the question whether in

fact all the plaintiff’s stores had been closed before his unlawful arrest and

detention. Certainly, at least one of the stores had been closed by the plaintiff

due to looting prior to his unlawful arrest and detention. No evidence was led

about the apparent failure of the plaintiff’s partnership venture in respect of two

34

of his stores to explain why in their case the closure was unavoidable and

factually linked to the unlawful arrest and detention.

[65] Accordingly, in my view, the plaintiff has not established a legal

causative link between his unlawful arrest and detention and the closure of his

stores.

[66] Even if I am wrong and were to have found that the plaintiff had

established both factual and legal causative links between the unlawful arrest

and detention and the closure of his stores, the question remains as to what

damages the plaintiff suffered as a result thereof . In my view the reliable and

acceptable evidence demonstrates that the plaintiff’s stores were running at a

loss and, in reality, such drawings as he may have made therefrom were not

drawn from net profit and should not, for the purposes of the present enquiry, be

deemed to be legitimate income. This means that whatever amounts the

plaintiff has earned subsequently have had the effect of putting him in an

improved position.

[67] It follows that I am of the view that the plaintiff has 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 the resultant malicious prosecution. There

can be no concomitant liability on the part of the defendant.

35

THE CLAIM FOR GENERAL DAMAGES

[68] In argument Mr SCHUBART, who led Mr DE LA HARPE on behalf of

the defendant, submitted that the quantification of the plaintiff’s general

damages must take into account the circumstances of his unlawful arrest and

detention and the impact that they, together with the malicious prosecution, had

upon him. He submitted that the defendant is liable to the plaintiff for his post-

traumatic stress disorder but not its associated conditions and disorders as these

were not factually and legally causatively linked to the defendant’s

wrongfulness.

[69] It was the opinion of Mr Annandale that the plaintiff’s disorders and

condition had developed “in an overlapping sequence” which “compounded his

condition” and which “led to a gradual decline in functioning and caused them

to become chronic”. The evidence disclosed that the plaintiff’s wife divorced

him in October 2007. Prior to that she had relocated to England. The

circumstances surrounding her relocation were by no means clear. Both the

relocation and the divorce brought in their wake a reduction in contact between

the plaintiff and his daughter. It was clear from the evidence that the divorce

and reduction in contact with his daughter had a profound effect upon the

plaintiff. These events had taken place against the background of the failure of

the plaintiff’s business venture.

[70] Mr Annandale attributed the plaintiff’s post-traumatic stress disorder to

his unlawful arrest and detention. In his view the panic disorder, agoraphobia

and major depressive disorder were not inevitable or predictable. They were

not necessarily linked to the unlawful arrest and detention.

36

[71] Mr Eaton testified that the plaintiff’s condition worsened in 2009 when

panic attacks became “a real problem”. He eventually conceded that it was not

possible to say whether, or to what extent, the unlawful arrest and detention, the

looting of the plaintiff’s stores, the closure of his businesses, the failure of his

marriage and the loss of contact with his daughter caused or aggravated the

plaintiff’s condition.

[72] In my view, the evidence of Mr Khan is helpful on this point. Whether

the employment commenced shortly before the plaintiff’s unlawful arrest and

detention or shortly thereafter, the plaintiff worked for Mr Khan at the latest

from the commencement of 2006. There is no evidence that this arrangement

was anything other than an ordinary contract of employment. It was only in

2009 that the plaintiff “got sick”, indicating that this condition was worsening.

In my view, this factor enables a finding to be made that on a balance of

probabilities only the plaintiff’s post-traumatic stress disorder was caused by his

unlawful arrest and detention and the resultant malicious prosecution. The

subsequent events occurred some years later and prior to the emergence of an

aggravation in the plaintiff’s condition leading to the inevitable conclusion that

those later events were causatively linked to the panic attacks, agoraphobia and

major depressive disorder.

[73] I also regard as significant the evidence that discloses mismanagement by

the plaintiff, for whatever reason, of his psychiatric medication and the fact that

he did not seek psychotherapy. On the expert evidence led, the negative effects

that these factors had upon the plaintiff’s condition contributed significantly to

the worsening of his condition. In a sense each may be regarded as a novus

actus interveniens.

37

[74] In my view, the necessary causative links between the defendant’s

wrongful conduct and the plaintiff’s post-traumatic stress disorder are

established. At least four years passed and significant intervening events or

occurrences arose between that conduct and the development of the panic

attacks, agoraphobia and major depressive disorder. These conditions were not

the direct result of the defendant’s unlawful conduct, nor were they objectively

foreseeable by the defendant at the time. Moreover, particularly in the

circumstances where there was a delay and/or mismanagement in the plaintiff’s

medical treatment after the defendant’s unlawful conduct, it would not be in the

interests of justice to hold the defendant liable for the outcome of all the

adversities faced by the plaintiff which have contributed towards his present

circumstance.

[75] The finding made in respect of the plaintiff’s positive prognosis for

recovery is also relevant to the consideration of an appropriate award for

general damages. The post-traumatic stress disorder is treatable and the

prognosis for recovery is positive. In my view, the appropriate award of

damages should reflect that the plaintiff’s condition is not permanent.

[76] It is apposite at this point to deal with the submission made in argument

by Mr NIEKERK, who together with Ms BARNARD appeared on behalf of the

plaintiff, to the effect that the plaintiff’s symptoms are those which are usually

“seen in plaintiffs suffering from severe brain injuries” and that in the

circumstances the approach of this court to an award for general damages

should be similar to those adopted in matters involving a brain injury. A similar

38

argument was rejected by the Supreme Court of Appeal in Minister of Police v

Dlwathi.12

[77] The factors which must be taken into account in this matter include the

following:

• the plaintiff was twenty-eight years of age at the time of his

unlawful arrest and detention;

• he was a customer of the defendant who was in the office of the

manager of the defendant’s Mthatha branch when members of the

South African Police Service were summoned to the arrest;

• he was arrested in front of other customers and members of the

defendant’s staff and was placed in a police van in the parking lot

of the defendant’s Mthatha premises;

• the plaintiff was taken to the Mthatha police station and was locked

in a cell with two other men who were kind to him;

• only a dirty blanket was available to the plaintiff, without a bed,

and there was an open toilet in the cell which was described as

“terrible”;

• during the night an additional person who had been charged with

murder was placed in the cell;

• the plaintiff was allowed to telephone his wife;

• the arrest occurred on a Friday afternoon and the plaintiff was

taken to court on the following Monday and placed in the holding

cells;

• a friend delivered Halaal food to the plaintiff during his detention; 12 (20604/14) [2016] ZASCA 6 (2 March 2016).

39

• following his court appearance the plaintiff was transported to

prison and locked in a cell with approximately two hundred other

people;

• again, in prison, there was an open toilet, no place for prayer and

no Halaal food;

• the plaintiff spent one night in the prison cell before being taken

back to court and thereafter released on bail;

• the plaintiff was more scared in prison than he had been in the cell

at the police station;

• the plaintiff appeared again in court on four occasions until the

charges were withdrawn against him in September 2006;

• each time he returned to court the plaintiff was fearful of being

arrested again;

• the plaintiff received his education in Bangladesh and holds a B.A

degree;

• the plaintiff came to South Africa in 2000 and ran his businesses as

a trader until shortly before or the time of his arrest and detention;

• approximately ten days were spent by the plaintiff at home in

recovery from his ordeal in detention;

• the plaintiff suffered from a post-traumatic stress disorder as a

result of his ordeal;

• notwithstanding the onset of a post-traumatic stress disorder the

plaintiff held a position as a manager of a retail outlet for at least

four years subsequent to his release from detention until his post-

traumatic stress disorder became aggravated by panic attacks,

agoraphobia and eventually a major depressive disorder;

40

• 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.

[78] Whilst no two cases are alike, guidance in the assessment of an

appropriate award for general damages can be obtained by a comparison of the

factors present in this matter with those evident in decided cases of a similar

nature. Useful examples are to be found in the various volumes of CORBETT

AND HONEY, The Quantum of Damages in Bodily and Fatal Injury Cases

(JUTA) and are hereinafter referred to using authors’ references.

[79] In HOCO v MTEKWANA 13 the plaintiff and his minor child were

arrested in Port Elizabeth and detained for seven days before being transported

to Cape Town. No shower or bathing facilities had been made available to the

plaintiff. The award of R 80 000,00 made for general damages in 2010 has a

present value of R 110 000,00.

[80] In BHENGU v MINISTER OF SAFETY AND SECURITY14 the

plaintiff was a forty-seven year old owner of a taxi business who was detained

for seven days in a cell with hardened criminals who had a wish to extract

revenge on him. The award of R 130 000,00 made for general damages in 2010

has a present value of R 178 000,00.

13 2010 (6) QOD K6-18 (ECP). 14 2010 (6) QOD K6 – 24 (KZD).

41

[81] In FUBESI v MINISTER OF SAFETY AD SECURITY 15 the plaintiff

was an eighteen year old who was detained for, in effect, four days in a crowded

cell where he was very scared. The award of R 80 000,00 made for general

damages in 2010 has a present value of R 110 000,00.

[82] In VAN DER MERWE v MINISTER OF SAFETY AND SECURITY 16

the plaintiff, who was a builder and the owner of a coffee shop in Grahamstown,

was arrested and detained on a Friday. He was incarcerated in appalling

conditions and was assaulted. He was released on the following Monday, only

to be shunned by members of his church community. A pre-existing condition

of depression was aggravated by his detention and he was unable to manage his

business properly thereafter, leading to its closure. The award of R 120 000,00

made for general damages in 2011 has a present value of R 157 000,00.

[83] In KOTSWANA v MINISTER OF SAFETY AND SECURITY 17 the

plaintiff, who was a thirty-four year old married man, was detained for eighty-

four hours in conditions which were unpleasant and unhygienic. Although he

was afraid of those with whom he had been detained he was not let out of the

cell. The award of R 110 000,00 made for general damages in 2012 has a

present value of R 136 000,00.

[84] In MHLABENI v MINISTER OF SAFETY AND SECURITY 18 the

plaintiff who was a twenty-nine year old male, was assaulted and detained in a

smelly cell with an open toilet along with twelve other persons. After five court 15 2010 (6) QOD K6 – 28 (ECG). 16 2011 (6) QOD K6 – 34 (ECG). 17 2012 (6K3) QOD 17 (ECG). 18 2012 (6K6) QOD 143 (ECP).

42

appearances the charges laid against him were withdrawn. The award of R70

00,00 (R 60 000,00 for the arrest and detention and R 10 000,00 for the

malicious prosecution) made for general damages in 2012 has a present value of

R 74 000,00

[85] In my view, having regard to the comparable awards to which reference

has been made, on the facts of this matter excluding the development of the

post-traumatic stress disorder, an appropriate award for damages would have

been R 150 000,00. However, having found that the plaintiff has established the

required causative links between the defendant’s wrongful conduct and the

plaintiff’s post-traumatic stress disorder, it is necessary that the award for

general damages be increased to compensate the plaintiff accordingly.

[86] In THE ROAD ACCIDENT FUND v RUTH F. S. DRAGHOENDER 19

the plaintiff, a forty-seven year old woman, suffered emotional shock, trauma

and post-traumatic stress disorder which rendered her permanently unable to

earn an income after witnessing the death of her son. The award of R80 000,00

made for general damages in 2007, which was confirmed on appeal, has a

present value of R 147 000, 00.

[87] In KRITZINGER AND KRITZINGER v RAF 20 the plaintiff witnessed

the deaths of his two daughters as a result of which he suffered from a post-

traumatic stress disorder and chronic stress disorder with flashbacks and

nightmares. He became emotionally withdrawn and avoided social functions

and churches. He also suffered from headaches on a daily basis from a sleep 19 2007 (5) QOD K3 – 16 (ECD). 20 2009 (5) QOD K3 – 31 (ECD).

43

disorder. The award of R 150 000,00 made for general damages in 2009 has a

present value of R 215 000,00.

[88] In LETT AND ANOTHER v MINISTER OF SAFETY AND

SECURITY AND ANOTHER 21 a child and a mother witnessed the shooting of

his sister and her daughter. The child suffered a major depressive disorder,

dysthymic disorder and chronic post-traumatic stress disorder requiring

counselling and anti-depressant medication. The award of R 100 000,00 made

for general damages in 2011 has a present value of R 130 000,00. The mother

suffered a major depressive disorder, dysthymic disorder, a major depressive

episode, panic disorder with agoraphobia, chronic post-traumatic stress disorder

and a generalised anxiety disorder requiring psychological and psychiatric

treatment. The award of R 120 000,00 made for general damages in 2011 has a

present value of R 157 000,00.

[89] In MAART v MINISTER OF POLICE 22 it was established that as a

result of witnessing the shooting of her son the plaintiff suffered chronic and

severe post-traumatic stress disorder, a major depressive disorder and psychosis

with a poor prognosis, all of which made her unemployable. The award of R

200 000,00 made for general damages in 2013 has a present value of R

234 000,00.

[90] In comparing the awards made in the matters to which I have referred to a

notional award for general damages in respect of the psychological and

emotional sequelae in the present matter, I have identified factors which are 21 2011 (6) QOD K3 – 1 (ECP) 22 2013 (6K3)QOD 24 (ECP).

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common to all. I have also taken into account factors that differ, predominantly

the finding made in this matter that the plaintiff’s post-traumatic stress disorder

is treatable with a conservatively positive prognosis for recovery. In my view,

taking all the relevant factors into consideration, an appropriate award for

general damages in respect of the plaintiff’s psychological and emotional

sequelae flowing from the unlawful arrest and detention and malicious

prosecution would be R 150 000, 00.

[91] It is desirable that a single award for general damages be made in to

ensure consistency between the plaintiff’s particulars of claim and the resultant

order. A combination of the assessments of the two main elements of the

plaintiff’s claim for general damages results in an award of R 300 000,00.

COSTS OF THE ACTION

[92] Subsequent to the determination of liability by Plasket J, this matter was

first enrolled for the determination of quantum on 22 August 2014. At that

stage the plaintiff’s claim was for an amount of R 30 000,00 representing legal

costs which had been incurred and an amount of R 200 000,00 as general

damages. On 10 June 2014 the plaintiff gave notice of his intention to amend

his particulars of claim to introduce a claim for hospital expenses in amount of

R 7 206,48, a claim for future medical expenses in an amount of R 67 200,00

and a claim for past loss of income in an amount of R 7 912 600,00. The notice

also indicated an intention to increase the claim for general damages to an

amount of R 800 000,00.

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[93] The amendment was perfected on 27 June 2014. On the same day the

plaintiff complied with a number of requests made much earlier by the

defendant in terms of Rule 35(3) of the Uniforms Rules of Court.

[94] Upon due consideration of the implications which the amendment to the

particulars of claim would have upon the defendant’s necessary preparations for

trial, on 10 July 2014 the defendant’s attorney addressed a letter to the

plaintiff’s attorney in which those difficulties were expressed. These included

certain anomalies arising from the plaintiff’s belated production of

documentation, and in some cases the apparent lack thereof, in response to the

defendant’s request that documentation be produced, the obvious need for the

defendant to secure the assistance of appropriate experts to enable the defendant

to deal with the newly introduced elements of the plaintiff’s claim and the need

for the defendant to compile and present a request for particulars relating to the

amended portions of the particulars of claim, in terms of Rule 28 of the Uniform

Rules of Court, to enable the defendant to prepare properly for trial. The letter

concluded with a proposal that the matter be removed from the roll by

agreement as it was not feasible or practical “to try and set the matter forth” for

22 August 2014, failing which an application for postponement would have to

be launched.

[95] There being no reply to the letter dated 10 July 2014, on 16 July 2014 the

defendant’s attorney addressed a further letter, making reference to his letter of

10 July 2014 and requesting a response from the plaintiff’s attorney by 21 July

2014, failing which an application for postponement would be launched.

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[96] On 23 July 2014 the plaintiff’s attorney responded to the correspondence.

The observation was made that “the trial is still a month away” and concluded,

on a question of a postponement, as follows:

“We do not believe, a view shared by counsel, that the Defendant

is entitled to a postponement. The trial accordingly proceeds.”

[97] Not surprisingly, the defendant’s attorney deposed to an affidavit setting

out the difficulties which the defendant faced as consequences of the recent and

substantial amendments to the plaintiff’s particulars of claim and the proximity

of the trial date. He did so on 28 July 2014 and on 30 July 2014 notice was

issued and served in respect of a substantive application for the postponement of

the trial to be moved in the motion court on 5 August 2014. In the application

for the postponement of the trial the defendant sought an order directing the

plaintiff’ “to pay the costs of this Application.”

[98] On 5 August 2014 an order was issued by agreement in the following

terms:

“1. That the trial of the action between the parties (set down for

the 22nd of August 2014) be and is hereby postponed sine

die.

2. That the wasted costs consequent upon the Order aforesaid

and the costs of this Application be reserved for decision.”

[99] In my view, it ought to have been obvious to the plaintiff’s legal

representatives that the introduction of the amendment would lead inevitably to

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the postponement of the matter. Apart from any history of delay on the part of

the plaintiff in complying with the defendant’s request to have sight of

documents in the plaintiff’s possession, the amendments completely altered the

characteristics of the plaintiff’s claim and elevated it in magnitude to a claim

with a potential value of over R 11 000 000,00. Not only was the defendant

entitled to make use of experts in its preparation for trial, it was entitled to a

reasonable opportunity to do so. It is not simply a question of whether or not

the notice of intention to amend the particulars of claim and the perfection

thereof were steps taken in accordance with the time periods set out in the

Uniform Rules of Court. The real question is whether the combination of the

timing and the nature of the amendments produced a result where the defendant

would be prejudiced, through no fault of its own, in its legitimate trial

preparation if the plaintiff was to hold the defendant to a trial date which was

imminent. The persons ideally placed to make such an assessment are the legal

practitioners involved in the matter. They should have the requisite experience

and professional expertise to make such an assessment in a mature and

responsible manner, to make informed decisions as officers of the court in such

a way as to minimise the occurrence of substantive applications for

postponement in circumstances where legitimate opposition is almost

impossible to conceptualise.

[100] In my view, the plaintiff acted incorrectly in refusing to remove the

matter from the trial roll in the circumstances which had arisen as a direct

consequence of the plaintiff’s substantial and extensive amendments to his

particulars of claim. The plaintiff’s intransigence led to the need for the

defendant to bring a substantive application for the postponement of the trial.

This should have been unnecessary and no reason exists why the defendant

should be liable in any measure for the wasted costs occasioned by the removal

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of the matter from the roll on 22 August 2014 or for the costs of the application

for postponement. Those costs should be borne by the plaintiff.

[101] The matter was again enrolled for trial on quantum on 21 April 2015.

The matter proceeded over as many days as the court was available and then

was adjourned, as a part-heard matter, by agreement to 12 October 2015.

Unfortunately, logistical difficulties intervened and through no fault of either

party the court was not available to resume the matter on 12 October 2015. By

agreement, the matter was again adjourned as a part-heard matter. On 14 March

2016 the matter resumed and was heard to finality. As the matter was part-

heard during this peripatetic phase, no orders for costs were made. Any wasted

costs incurred in the necessary adjournments of the matter should be costs in the

cause.

[102] In considering the proper order as to costs I take cognisance of the

following:

• no reliance has been placed upon the evidence of Mr Eaton, Dr van

Daalen and Mr Edwards and the defendant should not be expected

to bear the costs associated with their giving evidence or their

qualifying expenses;

• approximately one half of the evidential material placed before the

court and one half of the court time utilised related to the plaintiff’s

claim for loss of income;

• the plaintiff failed to prove on a balance of probabilities that he had

suffered any loss on income and, to that extent, his claim falls to be

dismissed;

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• it would be unfair to expect the defendant to bear the plaintiff’s

costs in respect of his or her unsuccessful claim for loss of income.

[103] The award of costs lies within the discretion of the court, which is to be

exercised judicially. I propose to make a costs order which reflects a

recognition of the plaintiff’s success in most of his claims but takes cognisance

of the significant portion of the trial which was taken up by those experts

employed by the plaintiff who either failed to discharge their duties to the court

or whose evidence complicated and extended the trial proceedings

unnecessarily in support of areas in which the plaintiff’s claim was

unsuccessful. To do otherwise, in my view, would lead to the defendant being

mulcted in costs in a manner which is not just and equitable and which takes no

cognisance of the extent of the success demonstrated by the defendant in its

defence on the plaintiff’s claims.

INTEREST

[104] Mr NIEKERK in his argument sought an order directing the defendant to

pay interest on the damages awarded at the prescribed rate of interested to be

calculated from the date of service of summons to the date of payment.23

[105] I do not intend to accede to Mr NIEKERK’s request. The majority of the

plaintiff’s claims both numerically and in value were introduced only by way of

amendment perfected on 27 June 2014. The defendant was in no position to

assess these claims properly ahead of the conclusion of its preparation for trial.

23 Reliance was placed on NAIDOO v MINISTER OF POLICE & OTHERS [2015] ALL SA 609 (SCA) para [57] where such an order was made.

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No debt arises until judgment is given. In these circumstances, no reason exists

why the usual approach to the question of interest should not be maintained,

namely that the defendant is afforded a reasonable opportunity to make payment

to the plaintiff of the amounts in which the court has determined the extent of its

liability before the indebtedness attracts interest.

ORDER

[106] The following order will issue:

“1. The defendant is hereby ordered to make payment to the plaintiff

of damages in the following amounts:

(a) R 7 206,48 in respect of past medical expenses;

(b) R 116 860,00 in respect of future medical expenses;

(c) R 300 000,00 in respect of general damages;

2. The plaintiff’s claims for legal expenses and loss of income are

hereby dismissed;

3. The defendant is hereby ordered to pay interest on the damages

specified in paragraph 1 of this order, such interest to calculated at

the prescribed rate of interest from the date fourteen days after date

of judgment to date of payment;

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4. The plaintiff is hereby ordered to pay the wasted costs occasioned

by the postponement on 05 August 2014 of this matter from the

date allocated to it on the trial roll, being 22 August 2014;

5. The plaintiff is hereby ordered to pay costs of the application

brought on 05 August 2014 for the postponement of the matter;

6. The defendant is hereby ordered to pay one half of the plaintiff’s

costs of suit, such costs to include the qualifying expenses and

witness fees incurred in respect of Dr Erlacher and the costs of two

counsel where two counsel were employed;

7. The defendant is hereby directed to pay interest on the costs

referred to in paragraph 6 of this order, such interest to be

calculated at the prescribed rate of interest from the date fourteen

days after allocatur to date of payment;

8. The plaintiff is hereby ordered to pay one half of the defendant’s

costs of suit, such costs to include the qualifying expenses and

witness fees incurred in respect of Mr Annandale and Mr Greeff

and the costs of two counsel where two counsel were employed;

9. The plaintiff is hereby directed to pay interest on the costs referred

to in paragraphs 4, 5 and 8 of this order, such interest to be

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calculated at the prescribed rate of interest from the date fourteen

days after allocatur to date of payment.”

RWN BROOKS

JUDGE OF THE HIGH COURT (ACTING)

For the plaintiff: ADV D NIEKERK AND ADV N

BARNARD

Instructed by N N DULLABH & Co.,

5 BETRAM STREET

GRAHAMSTOWN

For the defendant: ADV L A SCHUBART SC AND

ADV D H DE LA HARPE

Instructed by NETTELTONS,

118A HIGH STREET,

GRAHAMSTOWN

Matter finalised on: 18 MARCH 2016

Judgment delivered on: 31 MAY 2016