Government of the Republic of South Africa v Ngubane

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA, Rabie JA, van Winsen AJA and Kotzé AJA
• Judgment Date: 02 March 1972
• Citation: 1972 (2) SA 601 (A)
• Hearing Date: 25 February 1972
• Court: Appellate Division

Holmes, J.A.:

The facts in this case are pleasantly uncomplicated; but the pathway to the law, alas, is not unattended by a measure of difficulty.

In the magistrate's court it was averred in the summons that the defendant (now respondent) had assaulted a certain Constable Mashigo; that the latter had ceded to the plaintiff (now appellant) his right, title and interest in and to his claim for damages for the injuries which he

Holmes JA

sustained as the result of the assault; and that the appellant as cessionary, claimed damages in respect of (a) Mashigo's loss of salary, and (b) his pain, suffering, loss of amenities and disfigurement. The greater part of the claim was in respect of (b). At the trial it was agreed that the validity of the cession should be decided in limine. On A that issue the magistrate held that the claim in respect of (b) was personal to Mashigo and could not validly be ceded, at any rate not before litis contestatio; that the remainder of the claim, i.e. in respect of (a), could not stand on its own since a portion of a debt could not be ceded without the consent of the creditor; and that the B action should accordingly be dismissed with costs.

An appeal to the Transvaal Provincial Division failed.

Thereupon the parties consented, in terms of proviso (i) to Rule 5 (4) (c) of the Rules of this Court, to the submission, by way of a special case on appeal, of the following question of law, namely -

C 'Was the Court a quo correct in holding that a claim for damages for personal injury, in which are included the non-pecuniary heads of damage of pain and suffering, loss of amenities of life and disfigurement, is incapable of cession before the stage of litis contestatio has been reached?'

D The Court a quo granted leave to appeal accordingly, subject to the condition that the appellant pay the costs of the appeal irrespective of the result thereof; see sec. 21 (2) (b) of the Supreme Court Act, 59 of 1959.

Neither the Roman-Dutch law nor any other binding source of law deals specifically with this point. What approach then must this Court adopt? E As to that, I agree with the following passage in The South African Legal System and its Background, by H. R. Hahlo and Ellison Kahn, p. 304:

'If there is no Roman-Dutch rule which appears to the court to be applicable to the case... how is the court, bereft of binding legislation, precedent and modern custom, to give a reasoned judgment? Dealing with this problem, van der Keessel in his Dictata approvingly F quotes Grotius' statement to the effect that 'wanneer daar in bepaalde sake geen wetteregtelike bepalings, privilegies, keure (oftewel stedelike regsreëls) of gebruikregsreëls aangetref word nie, is die Regters reeds van die vroegste tye af onder eed vermaan om in sodanige saak die beste rede te volg soos deur hulle pligsgetrouheid en verstand aan die hand gedoen', adding that judgment will have to be given in accordance with natural law and equity - 'secundum ius et aequitatem naturalem'.

G See van der Keessel, Praelectiones, 1.2.22, (Gonin's translation, vol. 1, p. 29).

This does not mean that a Judge is at large to make new law. The learned authors rightly point out at p. 306 that he

'fashions it as far as possible out of materials at hand... though in the process he may within the fabric of the law fashion a new rule'.

H The foregoing seems to me consistent with what was said by SCHREINER, J.A., in Crookes, N.O., and Another v Watson and Others, 1956 (1) SA 277 (AD) at p. 290H, namely -

'It is natural, when one is considering a branch of the law on which there is relatively little direct authority, to seek assistance from other portions of the law that seem to present useful analogies; but analogies are only useful if they provide, not merely some solution of the problem under enquiry, but a solution which is satisfactory... Care must be exercised not to force a legal instrument of great potential efficiency and usefulness into a mould that is not properly shaped for it.'

Holmes JA

What then are the materials at hand, within the fabric of law, with which to solve the present problem?

I proceed to endeavour to answer the problem by reference to relevant A and analogous material in Roman law and Roman-Dutch law, in decided cases, and in articles by legal writers of repute.

As to the Roman and the Roman-Dutch law, the position is in my view appropriately summarised at p. 33 of the typescript of a lecture delivered to the University of Edinburgh by Professor J. C. de Wet, of Stellenbosch University. Tracing the history of liability for wrongful conduct, the learned author says - B

'In Roman law, as we have seen, a free man, who had been wounded, could claim medical expenses and loss of earnings from the male-factor, but no claim was allowed for scars and disfigurement, the reason being that the body of a free man had no monetary value. This rule was retained in mediaeval secular law and also in the Canon law. Our Roman-Dutch institutional writers are, however, unanimous in allowing the victim of bodily injuries not only his medical expenses and loss of C earnings but also a claim for pain and suffering (dolor) and disfigurement (cicatrix, deformitas). See Grotius, Inl., 3.34.2; Vinnius, Ad. Inst., 4.3.13; Groenewegen, De legibus abrogatis, ad D., 9.3.7... Voet, 9.2.11.

That a claim for pain and disfigurement was an anomaly in a system which was supposed to know only 'actiones reipersecutoriae' cannot be contradicted. Grotius realised this and admits that (Inl. 3.34.2)... pain and disfigurement (are) really not capable of compensation.

This claim was undoubtedly bound up with the composition payable in D terms of local customary laws, based on Teutonic tribal laws, by the person who had caused bodily injuries to another...'

The same learned author, in the course of a review in the February, 1970, issue of the Tydskrif vir Hedendaagse Romeins-Hollandse Reg, says at p. 75:

'Aanspreeklikheid vir pyn en leed het ook 'n lang geskiedenis, en is 'n anomaliese oorblyfsel uit...