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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

FLYNOTES: PERSONAL INJURY – Police shooting – Quantum – Loss of right eye due to rubber bullet – Shot on own property – Wrongful conduct – Permanent blindness in right eye – Required surgical removal and replacement with prosthesis – Significant and permanent disability – Diminished self-worth and confidence – Would have progressed to semi-skilled earnings – Requires future medical expenses for surgeries – Loss of amenities of life – Profound impact on quality of life – R2,205,567.

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION – MAHIKENG)

 

Case No: 1186/2022

 

In the matter between:

 

ELIZABETH MATSHIDISO JACK                                             Plaintiff

 

and

 

MINISTER OF POLICE                                                              First Defendant

 

STATE ATTORNEY                                                                    Second Defendant

 

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via email. The time and date for hand-down are deemed to be on 14h00 on 2 July 2025.

 

ORDER

 

Judgment is granted against the First Defendant for:

(a)             Payment of R2 205 567.00 in respect of damages, calculated as follows:

(i)            General Damages: R500 000,00

(ii)          Loss of earnings: R18 000,00

(iii)         Future medical and related expenses and assistance devices: R1 380 469,00

(iv)         Assistants: R307 098,00

(b)             Interest on the amount of R2 205 567.00 calculated at the prevailing legal rate from the date of service of summons to date of payment,

(c)             Costs, which costs shall include:

(i)            Costs of counsel on Scale A of the Uniform Rules of Court,

(ii)          The costs of all medico-legal, radiological, actuarial and pathologist addendum and joint reports obtained by the Plaintiff, such reports as furnished to the First Defendant and/or its attorneys, and all reports contained in the Plaintiff’s bundles.

(iii)         The fair and reasonable costs incurred for travelling and subsistence and/or Plaintiff’s accommodation on attendance at medico-legal appointments.

 

JUDGMENT

 

TITUS AJ

 

Introduction

 

[1]             This is a claim by the Plaintiff for damages in the amount of R3 536 677.00 arising out of injuries that she suffered on 11 July 2019 when she was struck in her right eye by a rubber bullet fired by members of the First Defendant. The Plaintiff has withdrawn the action as against the Second Defendant.

 

[2]             The Plaintiff’s claim comprises of her past and future medical expenses, future non-legal medical expenses, past loss of income, future loss of income and, lastly, general damages.  

 

[3]             The First Defendant conceded the merits of the Plaintiff’s claim. On 27 November 2024, this Court, per Petersen J, by agreement between the parties, found the First Defendant 100% liable on the merits for the Plaintiff’s proven damages resulting from the injuries that she suffered at the hands of the members of First Defendant.

 

[4]              The parties have been unable to settle the issue of quantum and have agreed that the Court may deal with this remaining issue on paper. Additionally, the parties have agreed that the relevant medico legal reports[1] and affidavits in respect of the injuries suffered by the Plaintiff and sequelae thereof be admitted into evidence in terms of Uniform Rule 38(2) as admissible hearsay evidence and evidentiary material without the need to lead any further evidence.

 

Background Facts

 

[5]             The common cause background facts are that, on 11 July 2019, the Plaintiff, while engaged in household chores in her yard at erf B[…] Extension 1[…], Baipai, Ikageng, Potchefstroom, was struck in her right eye by an errant rubber bullet fired by members of the First Defendant. The members were responding to civil unrest in her street.

 

[6]             As a result of her injury, the Plaintiff lost all function in her right eye, and it was surgically removed and replaced with a prosthesis. It is also common cause that the First Defendant is liable to Plaintiff for her injuries so sustained.

 

The Plaintiff’s Case

 

[7]             The Plaintiff claims that the loss of her right eye has been a traumatic experience and that it has diminished her self-worth and confidence, especially as she is a young unmarried woman. At the time of her injury, she was 19 years old. The Plaintiff’s further evidence is that prior to the incident, she was naturally extroverted and socially active, but has since experienced marked social withdrawal and a reluctance to appear in public settings. The ocular prosthesis currently fitted presents an unnatural appearance and lacks synchronous movement with the remaining functional eye. This visible asymmetry attracts unsolicited attention. Compounding the distress, the prosthesis is associated with mucosal discharge emitting an offensive odour, which exacerbates public scrutiny and contributes to the Plaintiff’s ongoing embarrassment. She states further that scarring beneath the right eye, resulting from the surgical procedure, adds to her disfigurement and intensifies her emotional discomfort.

 

[8]             Due to the loss of vision, the Plaintiff’s awareness of her surroundings has decreased significantly which has made her afraid to walk alone at night, specifically to the shops, the pit latrine outside her home or to the communal tap for water. The loss of her eye also causes the Plaintiff severe pain for which she has no pain medication. She manages the pain by going to sleep in the hope that the pain has subsided when she wakes. The risk of infection is also an ever-present danger. The Plaintiff claims that she cannot perform simple tasks, such as sweeping the house or cooking, for fear that exposure to dust, or spices in the case of cooking, may lead to infection.

 

[9]             The loss of the Plaintiff’s ability to cook has affected her future income. Her sole source of income was selling her homemade achaar[2]. Before her injury, the Plaintiff would sell her achaar door to door, to her growing customer base, from which she derived approximately R 3 600,00 per month. Since then, her income has decreased to R1 800,00 per month. The Plaintiff however provides no documentation to support these claims.

 

[10]          The Plaintiff further claims that, as a direct result of her injury, she will require future medical care and future non-medical treatment. The Occupational Therapists disagree on the particular assistive devices that are necessary for the Plaintiff and the necessity for case management. The Plaintiff’s actuary calculates the Plaintiff’s total occupational therapy and assisted devices at R604 406,00.

 

[11]          While the Plaintiff claims past and future medical expenses, the Plaintiff’s claim for past medical expenses was however abandoned during proceedings for lack of evidence.

 

[12]          The Plaintiff also informs the Court that she has concluded a contingency fee agreement with her legal representatives. She confirms that the terms of the agreement have been fully explained to her, that she comprehends the nature and implications thereof, and that she understands the fee structure and the circumstances under which her attorney is entitled to recover legal fees.

 

Joint minutes

 

[13]          The parties compiled joint minutes in respect of their respective Ophthalmologists, Occupational Therapists and Industrial Psychologists.

 

[14]          The Ophthalmologists agree that the Plaintiff is permanently blind in her right eye and that she has a mild degree of post enucleation socket syndrome, but which can be surgically corrected. The experts also agreed that the Plaintiff has a scar on her right lower eye lid and cheek which has an unfavourable cosmetic appearance.

 

[15]          Additionally, the experts agree that, from an ophthalmological point of view, the Plaintiff’s whole person impairment score is 23% and that she qualifies to claim under the narrative test for loss of a body function and serious, permanent disfigurement.

 

[16]          The Occupational Therapists agree that the Plaintiff’s injury impairs and limits her vocational capacity and ability to compete with uninjured peers in the informal work sector. They also agree that the Plaintiff will require the use of adaptions and/or adaptive equipment and that she would benefit from approximately 32 hours of occupational therapy at a cost of approximately R750,00 to R850,00 per hour. Additionally, they agree that the Plaintiff may require an assistant in her business at the national minimum wage hour and that she may require 8 hours of domestic assistance per week, 8 hours of gardening services per week in summer and biweekly in winter and global maintenance in the amount of R20 000,00.

 

[17]          The Industrial Psychologists agree, aside from the common cause facts, that the Plaintiff was self-employed at the time of the incident selling her homemade achaar and that she would, given her young age at the time of the incident, have continued in her pre-accident work with normal increases and that she may have eventually found opportunities and secured alternative semi-skilled work with better earnings.

 

[18]          They also agree that the Plaintiff would require assistance in her self-employed capacity and, further, they recommend a higher-than-normal post incident contingency deduction due to the Plaintiff’s reduced work capacity and limited employment opportunities amongst other things.

 

Future medical expenses

 

[19]          The calculations for future medical expenses are based on the joint minutes by the experts. They agree that the Plaintiff requires future medical treatment.

 

[20]          The Plaintiff’s Ophthalmologist estimates the future medical costs concerning the Plaintiff’s eye, will include the costs for an orbital floor implant, forniceal reconstruction, ptosis repair, fitting with a shield type lens/prothesis and yearly ophthalmological examinations which the Plaintiff’s expert actuary has quantified at the sum of R840 196,00. This quantification is not seriously challenged. The Defendant’s Ophthalmologist does not dispute that the Plaintiff would benefit from surgery to correct the Plaintiff’s mild degree of post enucleation socket syndrome and occlusion of the right inferior punctum.

 

[21]          While the Occupational Therapists agree that the Plaintiff will require special or adaptive equipment or devices, they disagree on what those devices or equipment should be. The Plaintiff’s actuary calculates the total occupational therapy and assistant devices at R604 406,00. This calculation is also not seriously challenged by the First Defendant.

 

[22]          Additionally, the Plaintiff claims the amount of R307 098,00 for assistances comprising domestic, garden assistance and maintenance assistance based on the calculations of the Plaintiff’s actuary and taking into account a higher than usual contingency of 35%. The Plaintiff’s evidence, that is not challenged, is that she would require assistance given that her sister and aunt are not always readily available to assist her and that they need to secure income for themselves.

 

Loss of earnings

 

[23]          The Industrial Psychologists agree that the Plaintiff has no post school qualifications, no driver’s licence and, at the time of her injury, she was self-employed selling her homemade achaar. While the Plaintiff alleges, without documentary evidence, that she earned approximately R3 600,00 net per month, Industrial Psychologists agree that, considering the Plaintiff’s young age at the relevant time, her level of education and work experience, she would likely have eventually found opportunities and secured semi-skilled work with better earnings.

 

[24]          They also agree that the Plaintiff would likely have progressed from her reported earnings to Koch’s[3] semi-skilled worker earnings at the average of the median and upper quartile, namely R131 550,00 per annum (or R150 500,00 per annum in 2024) by the age of approximately 45 years, whereafter the annual inflationary increases until the retirement age of 70 years, health permitting, would have been applicable.

 

The Legal Principles - Loss of Earnings

 

[25]          It is well established that a plaintiff bears the onus of proving the extent of their loss and damages on a balance of probabilities. In respect of loss of income, the plaintiff must provide evidentiary proof of their earnings to enable the court to quantify both past and future loss of earnings. Furthermore, the plaintiff must demonstrate, through admissible evidence, the quantum of anticipated future income loss directly attributable to the injury sustained.

 

[26]          In the assessment of damages for loss of earnings the Appellate Division (as it was then known) held in Southern Insurance Association v Bailey NO  1984 (1) SA 98 (A) that: 

 

“[a]ny enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or oracles. All that the court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss. It has open to it two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a non possumus attitude and make no award…”

 

[27]          In the unreported decision of Mvundle v RAF (63500/2009) [2012] ZAGPPHC 57 (17 April 2012) the court stated that:

 

“[i]t is trite that damages for loss of income can be granted where a person has in fact suffered or will suffer a true patrimonial loss in that his or her employment situation has manifestly changed. The plaintiff’s performance can also influence his or her current job and /or be limited in a number and quality of his or her choices should he or she decides to find other employment”.

 

[28]          In Mlotsha v Road Accident Fund (9269/014) [2017] ZAGPPHC 109 (29 March 2017) Petersen AJ (as he then was) stated that:

 

  “It is accepted that earning capacity may constitute an asset in a person’s patrimonial estate. If loss of earnings is proven the loss may be compensated if it is quantifiable as a diminution in the value of the estate. The law in this regard is trite as is demonstrated in a very useful exposition of the law related to a claim for diminished earning capacity, where the learned Judge in Prinsloo v Road Accident Fund 2009 5 SA 406 (SECLD) at 409 C- 410 A, quotes extracts from the locus classicus on the subject:

Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 2 SA 146 (A) where the following was said at 1508-O:

‘in ‘n saak soos die onderhawige word daar namens die benadeelde skadevergoeding geeis en skade beteken die verskil tussen die vermoensposisie van die benadeelde voor die onregmatige daad en daarna. Kyk, bv, Union Government v Warneke 1911 AD 657 op bl 665…Skade is die ongunstige verskil wat deur die onregmatige daad ontstaan het. Die vermoensvermindering moet wees ten opsigte van iets wat op geld waardeerbaar is en sou insluit die vermindering veroorsaak deur ‘n besering as gevolg waarvan die benadeelde nie meer enige inkomste kan verdien nie of alleen maar ‘n laer inkomste verdien.’

Dippenaar v Shield Insurance Co Ltd 1979 2 SA 904 (A) the following was said at 9178-0:

‘in our law, under the lex Aquilia, the defendant must make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. The capacity earn money is considered to be part of a person’s estate and the loss or impairment of that capacity constitutes a loss, if such loss diminishes the estate.’ ”

 

[29]          The court in Mlotsha held further that the “…difficulty in quantifying the monetary value of loss in claims of this nature is succinctly stated in Terblanche v Minister of Safety and Security and Another 2016 (2) SA 109 (SCA) at para [14]:

 

  “[t]he difficulty in claims of this nature is generally not so much the recognition that earning capacity constitutes an asset in a person’s estate, but rather the quantification of the monetary value of the loss of earning capacity by a trial court. Each case naturally depends on its own facts and circumstances, as well as the evidence before the trial court concerned.” (emphasis supplied)

 

[30]          To determine a plaintiff’s claim for future loss of income the court must compare what the Plaintiff would have earned if it was not for her injuries with what she would likely have earned after the injuries.

 

[31]          At this juncture, it must be noted that the First Defendant denies that the Plaintiff has discharged the onus on her to prove her claim for loss of income for failure to provide any evidentiary proof of it. In its plea to the Plaintiff’s particulars of claim, the First Defendant admits that the Plaintiff is self-employed. It is also not disputed that the Plaintiff made and sold achaar for a living prior to her injuries and that she continues to do so after her injuries. What the Plaintiff’s actual income is unfortunately not discernible from the papers or the documents filed of record.

 

[32]          It is not disputed that the Plaintiff has suffered a loss because of the wrongful conduct of the members of the First Defendant and that this Court must determine what is fair and reasonable to the parties on the available evidence before it.  The evidence is the following.

 

[33]          First, the Plaintiff gave evidence, as agreed by affidavit, in support of her monetary claims.  The Plaintiff’s evidence on affidavit is unchallenged. It is common cause that the Plaintiff, at the relevant time, was an unmarried self-employed woman who make and sells achaar. She has no post school qualifications.

 

[34]          Second, the Industrial Psychologists agree that the Plaintiff would have progressed from her reported pre-accident earnings of R3 600, 00 per month in 2019 to Koch’s[4] semi-skilled worker earnings at the average of the median and upper quartile, namely R131 550,00 per annum by the age of 45 years, whereafter the inflationary increases would be applicable until retirement age of 65.

 

[35]          Additionally, they agree that, after she had sustained the injury to her right eye, the Plaintiff could not work for approximately 5 months and, consequently, received no income during that time. The Plaintiff accordingly suffered a loss of income in that time in the total amount of R18 000,00, calculated as R3 600,00 per month over a period of five (5) months. The Plaintiff presently generates R1 800,00 per month post injury. The relative diminution of her estate after her injury is compensated by the award that this Court makes under the head of damage for assistants.

 

General Damages

 

[21]      The Plaintiff claims damages for her pain and suffering. The court in awarding general damages does not intend to punish the defendant but to compensate the plaintiff as a form of solace for the plaintiff’s suffering. In Sandler v Wholesale Coal Suppliers Ltd  1941 AD 194 it was held that:

 

“…it must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must certainly be uncertain, depending upon the judge’s view of what is fair in all the circumstances of the case.”

 

[36]          In determining an appropriate amount for compensation, it is important to look at comparable cases and the awards made in those matters. However, these only serve as a guide as each case should depend on the personal circumstances of the claimant, the severity of the condition and the effect thereof on the claimant’s life.

 

[37]          In argument for the Plaintiff, reference was made to various relatively comparable authorities in support of the Plaintiff’s claim for general damages. In the B.M obo O.M.M[5] matter, the plaintiff, a minor child suffered a keloid facial scar when he was struck by a rubber bullet. This Court awarded the minor R550 000, 00 in general damages. In the 2004 Maloka case[6], this Court awarded the plaintiff R140 000,00 when he lost his eye after being stabbed. The current value of that award is approximately R400 000,00.

 

[38]          In argument, the Plaintiff claims the amount of R900 000,00 under this head, down from the Plaintiff’s initial claim of R1 500 000,00, as justifiable given the Plaintiff’s loss of her right eye and the unsightly scar to her right cheek. The Plaintiff’s claim for general damages is much higher that the cases that the Plaintiff’s counsel drew this Court’s attention to.

 

[39]          The First Defendant also cited relatively comparable authority for its argument that rather the sum of R400 000.00 is fair, just and reasonable in the circumstances.  

 

Legal Principles – Assessment of General Damages

 

[40]          It is trite that an assessment of an appropriate award of general damages is a discretionary matter[7]. In the exercise of its discretion, a court must necessarily have regard to the nature of the plaintiff’s injuries, whether the injuries suffered are of a permanent or temporary nature, the plaintiff’s pain and suffering, whether there is scarring, discomfort and any loss of amenities[8]. The object of the exercise is to fairly and adequately compensate the loss suffered by an injured party[9].

 

[41]          Reference to relatively comparable cases may present a useful guide in the assessment of an appropriate award of general damages, but no more. As Nugent JA observed in Minister of Safety and Security v Seymour (295/05)  [2006] ZASCA 71 at  para 17, such an exercise is:

 

  “fraught with difficulty . . . (t)he facts of a particular case need to be looked at as a whole and few cases are directly comparable . . . (t)hey are a useful guide to what other courts have considered to be appropriate but they have no higher value than that.”

 

[42]          Paramount in the exercise of a court’s judicial discretion is balance. On the issue of balance, Holmes J (as he then was) stated in Pitt v Economic Insurance Company Limited 1957 (3) 284 (D) at 287E that:

 

"The court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense."

 

[43]          After all, as the Constitutional Court cautioned in the Mahlunga case[10] ‘…[s]uch awards are a goodwill gesture for the successful plaintiff and not to rectify the wrong that has been committed.’

 

[44]          It is common cause that the Plaintiff has endured pain and suffering, disfigurement, permanent disability and loss of amenities of life. All things considered, and having regard to the physical and psychological sequelae of her injuries, and considering the comparable cases cited by the parties, the appropriate amount to be awarded for general damages in the circumstances of this matter is the sum of R500 000.00. In arriving at this amount, this Court has taken some guidance from the awards made in the relatively comparable awards made by this Court in the B.M and Moloka cases above and the further authorities cited by the First Defendant.

 

[45]          While the First Defendant has achieved a measure of success in this matter as far as the reduction in the amount of general damages is concerned, the Plaintiff is largely successful in this matter and there is no reason why the normal rule that costs follow the event should not apply. The issues on quantum raised in this matter are not complicated or novel and a costs order on Scale A is appropriate.

 

Order

 

[46]       In the premises, the following order is granted:

 

(a)          The First Defendant shall pay the Plaintiff the sum of R2 205 567.00 in respect of damages, calculated as follows:

(i)            General Damages: R500 000,00

(ii)          Loss of earnings: R18 000,00

(iii)         Future medical and related expenses and assistance devices: R1 380 469,00

(iv)         Assistants: R307 098,00

(b)          Interest on the amount of R2 205 567.00 calculated at the prevailing legal rate from the date of service of summons to date of payment,

(c)          Costs, which costs include:

(i)            Costs of counsel on Scale A of the Uniform Rules of Court,

(ii)          The costs of all medico-legal, radiological, actuarial and pathologist addendum and joint reports obtained by the Plaintiff, such reports as furnished to the First Defendant and/or its attorneys, and all reports contained in the Plaintiff’s bundles.

(iii)         The fair and reasonable costs incurred for travelling and subsistence and/or Plaintiff’s accommodation on attendance at medico-legal appointments.

 

 

RR TITUS

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

MAHIKENG

 

 

Appearances:

 

For the Plaintiff:        Adv G Maree

Instructed by:            Klynveld-Gibbens Inc.

                                    admin@kglegal.co.za

 

For the Defendant:   State Attorney

                                    Mahikeng

                        Fax:    066 642 7125

                                    (ref: Ms O Ndabeni)

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