Dlwathi v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Siwendu AJ
• Judgment Date: 14 August 2014
• Docket Number: 2005/25304
• Court: Gauteng Local Division, Johannesburg

Siwendu, AJ:

INTRODUCTION

[1]

In these proceedings, the court is required to determine the quantum of damages to be awarded to the plaintiff following the determination of the merits in his favour. The plaintiff had been assaulted by members of the defendant on 24 June 2005.

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[2]

The plaintiff, an Advocate of the High Court of South Africa and an officer of the court, was born on 17 November 1968. He joined the Johannesburg Bar in 1999 and had taken his first chambers at Innes Chambers. At the time of the assault he had moved to Group One Chambers in Sandton in 2005.

[3]

In his particulars of claim he alleges that:

"…

8.

The plaintiff is an officer of this Honorable court, whose integrity and social standing in the community was adversely affected and impaired as a result of this wrongful and unlawful conduct by the nine (9) defendants.

9.

At the time of the said assault, plaintiff-

9.1

was involved in a number of the so called operation dribble cases which were widely publicised in the media (attached herein are copies of the newspaper cuttings marked B1, B2, B3 and B4);

9.2

served as a legal adviser, and Head of Legal Department for Bushbucks Football Club;

9.3

was a very busy counsel and accustomed to receiving different briefs from:

(a)

the legal aid board

(b)

prominent attorneys and law firms

(attached hereto are copies from attorneys and/ or firms marked B5, B6 and B7)

9.4

suffered contumelia.

10.

After the said assault, plaintiff-

10.1

was unable to work and stayed at home for forty five (45) days, and had to pass on briefs to colleagues, and consequently suffered loss of income;

10.2

the reasonable number of cases dwindled and to date are no longer forthcoming, due to the incident;

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10.3

since the incident the position of Head of Legal Department in the Bushbucks Football Club was adversely affected in that there were verbal threats of termination of the plaintiff's services associated with the said assault as reflecting badly on the image of the club, to date plaintiff has not represented Bushbucks Football Club in their matters, even though there are outstanding cases. Plaintiff stands to lose R84 000.000 per annum;

10.4

prior to the incident, plaintiff had an offer with Free State Stars commencing on 1 September 2005, that offer fell through, and plaintiff lost on R22 000.00 per month of two years, as a result of the bad publicity associated with the incident;

10.5

to date plaintiff is constantly bleeding from the gums and teeth as a result of the said assault;

10.6

plaintiff's right ear is experiencing resultant partial loss of hearing

10.7

plaintiff's personal and professional life have been taken a 'nose dive' in that he is unable to pay for his office, bar fees and his car was recently repossessed by Nedbank (attached hereto is a copy marked C1 and C2);

10.8

plaintiff has been advised to attend counseling for stress and depression and low self-esteem, as a result of the assault; and

10.9

suffered contumelia

…"

[4]

The plaintiff claims damages in the amount of R9, 950, 000.00 (nine million nine hundred and fifty thousand rand) as follows:

(a)	Past hospital expenses	R 50,000.00
(b)	Past medical expenses	R 100,000.00
(c)	Estimated future medical expenses	R 500,000.00
(d)	Past loss of earnings	R2,000,000.00
(e)	Future loss of earnings	R6,000,000.00
(f)	Loss of future earning capacity losses; and	R 500,000.00

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(g) General damages in respect of pain and suffering, loss of amenities of life, disfigurement and/or disability R 800,000.00

[5]

At the commencement of the hearing, the following claims became settled between the parties, namely the claims relating to:

(a)

Past medical expenses in the amount of R17, 090.01.

(b)

Future cost of orthopeadic treatment in the amount of R19, 666.00.

(c)

The balance of the total future medical expenses in the sum of R494,734.00 were conceded and agreed to by the defendant.

[6]

What is left to be determined are the claims in respect of:

(a)

General damages relating to the pain and suffering, loss of amenities of life, disfigurement and/or disability;

(b)

Past loss of income; and

(c)

Future loss of income and/or earning capacity.

[7]

Part of the claim in respect of past loss of income was abandoned by the plaintiff and the claim reduced to R388, 996.68

[8]

The defendant has admitted the physical injuries inflicted on the plaintiff but not their psychological effects. Medical reports from experts and reports from health practitioners were admitted to evidence rendering a total of eight (8) reports on behalf of the defendant [1] , and a total of thirteen (13) reports on

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behalf of the plaintiff. [2]

THE PLAINTIFF'S EVIDENCE

[9]

The plaintiff testified that following the assault, his ability to competitively practice as an advocate was adversely affected as a result of the loss of hearing in his left ear, damage to his cervical spine and teeth as well as concomitant loss of self-confidence and the psychological effects of the assault.

[10]

The assault had occurred on a Friday in full view of his friends and members of his community in Tembisa. It had been widely publicised in the media [3] . He testified that as a result of the assault and injuries, he suffered a lowered self-esteem, demotivation and loss of confidence and his social standing was diminished in the eyes of his colleagues in the profession as well as in the eyes of his community.

[11]

At the time of the assault, he had been involved in high profile cases colloquially known as 'operation dribble' involving match fixing in soccer. He testified that he had been the only advocate dealing with such matters. He had been regularly briefed by the State Attorney's office, the Legal Aid Board and Attorneys at the side bar. In his view, his practice had been thriving and busy. It had afforded him a good lifestyle and enabled him to secure a bond over a property, acquire cars and provide for his family. Evidence relating to

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the plaintiff's income is addressed below in the section dealing with the claims for past and future loss of income and earning capacity.

[12]

The plaintiff had testified that he had returned to his chambers the Monday following the assault but immediately felt lost, despondent and an outcast. He could not concentrate on his work and had handed over his cases to other advocates to attend on his behalf. He was away from his chambers for forty five (45) days and had suffered depression which he attributed to physical and emotional pain as a result of the assault. He testified that he had aspirations of being senior counsel and a judge as he had rated himself amongst the best junior advocates at the time.

[13]

At the invitation of Adv. Semenya SC, who had supported him with junior briefs, he had moved to Pitje Chambers. His circumstances did not change. His feelings of demotivation and despondency continued and the briefs he received from attorneys dwindled. In his view, he was looked upon differently by others in the profession and hence why some lawyers withdrew their matters from him.

[14]

He resigned from the Johannesburg Bar in May 2009 and joined the service of the Department of Justice in that year as a senior advocate. In his letter of resignation, dated 6 May 2009 he states that:

"------original message ------

From: Steve Dlwathi [mailto:sdlwathi@law.co.za]

Sent : 06 May 2009 11:28

To: jhbbar@law.co.za

Subject: Deference/termination of my membership with immediate effect sine die.

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The Secretary

Johannesburg Bar Council

I hereby wish to defer and/or terminate my membership with immediate effect for an indefinite period.

This decision is as a result of lack of briefs, fees to be paid to the bar and group with no return for survival. Thus, one is compelled to look elsewhere to survive. I love practice, but practice alone at times is not enough."

[15]

That he owed dues to his group is confirmed in Dr Olivier's report dated October 2007. He had provided her with copies of letters showing that he owed Pitje Chambers R31,473.36 and R50,934.91 for March and April 2007 [4] respectively.

[16]

He testified that due to the injury to his cervical spine, as well as the loss of hearing in his left ear, he could no sit and read for more than an hour, and these handicaps also contributed to his decision to leave the bar. The extent of the plaintiff's injuries were referred to by various experts namely, Drs Read (for the plaintiff) and Swartz (for the defendant) who are orthopeadic surgeons. Both confirmed the injury to the cervical spine and the functional impairment as well as the need for surgical treatment or intervention.

[17]

In Dr Swartz's view, the injury resulted in an impairment of two percent (2%) of the plaintiff's whole person, while in Dr Read's view the injury is likely to be chronic and of an ongoing nature [5] .

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[18]

A report by neurosurgeon Professor M. S. Mokgokong [6] states that repeated assault to the face, head, body and contact damage was evidenced mainly on his face. This had been a minor head injury without concussion [7] .

[19]

Dr Polakow, a maxillo-facial and oral surgeon's report states that the plaintiff suffered from post-traumatic myofacial pain dysfunction syndrome in the temporo-mandibular joints, and presents with missing teeth and two upper central incisors which may require dental implants. The essence of these...