ACTUARIAL CASE LAW REVIEW

Facts and issue: The plaintiffs, both police officers, instituted action against the Minister of Police claiming damages arising from their alleged unlawful arrest and detention, and against the National Prosecuting Authority, from their ensuing alleged malicious prosecution. The total amount claimed is R2,000,000. The defendants raised two special defences. First, that the plaintiffs failed to comply with the notice requirements under section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002; and second, that their claims against the minister have prescribed in terms of section 11 of the Prescription Act 68 of 1969.

Discussion: Two competing approaches on the interpretation of this question emerge from the case law as presented by the parties. The first, exemplified in Manchu v Minister of Police [2024] ZAGPJHC 535 and Mofokeng v Minister of Police [2023] ZAFSHC 43, holds that for unlawful arrest and detention claims, prescription begins to run from the moment of arrest, as each day of detention constitutes a new and separate debt. The second approach, reflected in Links v MEC for Health [2016] ZACC 10, emphasizes that a plaintiff must have knowledge of sufficient facts that would cause them on reasonable grounds to think that they have a claim. The following periods are relevant: The period between the arrest (5 June 2012) and service of summons (17 August 2016) of approximately four years and two months; the period between the end of the criminal proceedings (19 June 2015) and service of summons of approximately fourteen months; and the section 3 notices served within five months of the conclusion of criminal proceedings but more than three years and five months after the arrest and detention.

Findings: Taken together, the plaintiffs' argument that they only acquired knowledge of their claim upon acquittal cannot succeed. The primary facts, their arrest and detention, were known to them immediately. Their later appreciation that these events may have been unlawful represents a legal conclusion, not a fact required to complete their cause of action. As police officers, they would have known whether reasonable grounds existed for their arrest at the time it occurred. Their subsequent acquittal may have strengthened their conviction about the merits of their case, but this does not delay the running of prescription. The plaintiffs had knowledge of both the identity of the debtor (the Minister of Police) and the material facts giving rise to their claims for unlawful arrest and detention on the date of arrest in 2012. The special plea of prescription must succeed. The plaintiffs had the requisite knowledge under section 12(3) of the Prescription Act from the date of arrest.

Order: The second special plea of prescription is upheld. The plaintiffs’ remaining claims are dismissed with costs.

Facts and issue: The two plaintiffs, Zuko and Anele, instituted action proceedings against the defendants for damages claim. The claims arise from their alleged arrest, detention and malicious prosecution. The first to the third defendants are Minister of Police (minister), National Director of Public Prosecutions (NDPP) and Mr Mangciphu(the complainant). The minister and NDPP are sued based on vicarious liability. This matter raises the issue of whether the arresting officer and prosecutors should have done more before arresting and prosecuting Zuko and Anele. Only the minister and NDPP defended the action.

Discussion: The complainant informed the police that at the business where housebreaking took place, he had CCTV cameras. He viewed the footage and identified the culprits as Zuko and Anele.  He knew them well. The arresting officer asked the complainant to show him the footage. After viewing the footage, the said officer was not comfortable with the quality of the images. He sent the video to experts in Pretoria for it to be cleared so that the quality of the visuals could improve. With their consent, the police took the fingerprints of Zuko and Anele. Upon seeking advice from the prosecutor, the prosecutor requested the docket for decision and that the complainant be brought. The footage was received. Before the fingerprints results came to hand, he took the complaint together with the footage, without opening or watching it, to the prosecutor. The prosecutor watched it with the complainant and his brother who both positively identified the culprits from a clear footage. The prosecutor then decided to prosecute them. The arresting officer never watched the footage. Upon the prosecutor seeing Zuko and Anele, he realised they were not the people on the footage. The complainant could not explain that discrepancy, the charges were therefore withdrawn.

Findings: The exercise of the discretion to arrest, on the facts of the case, was justified. The plaintiffs were taken to court without any delay. They did not apply for and were not released on bail until they applied and were released on 20 June 2018. The plaintiffs failed to prove that the NDPP acted without reasonable and probable cause and with malice. To succeed against the third respondent, in a claim for malicious prosecution, the plaintiffs had to prove that he colluded with relevant officials in his prosecution. That could not be the case as the claim against the NDPP has already failed.

Order: The plaintiffs’ claim is dismissed.

Facts and issue: This is an action for damages arising from the alleged unlawful arrest and detention of the plaintiff by members of the SAPS. The plaintiff claims damages against the first and second defendants for unlawful arrest and detention, and against the third defendant for malicious prosecution in the amount of R2,100,000. The plaintiff was arrested by sergeant Ramoshaba without a warrant at his workplace on a charge of intimidation. The defendants deny that the arrest and subsequent detention of the plaintiff was unlawful. They contend that the arrest was lawful in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977 as sergeant Ramoshaba arrested the plaintiff on suspicion of committing the offence of intimidation.

Discussion: Sergeant Ramoshaba stated that his suspicion that the plaintiff had committed a Schedule 1 offence was based on the complainant's account, the fact that the plaintiff and the complainant worked together and the plaintiff’s apparent state of ‘fright’. Sergeant Ramoshaba gave evidence that he approached the plaintiff, introduced himself, and questioned him regarding the contents of the statement provided by Mrs. Nalaba. He noted that the plaintiff appeared to be frightened. After gathering sufficient information and forming a reasonable suspicion, he decided to proceed with the arrest. Sergeant Ramoshaba gave evidence that he effected the arrest on the same day he received the complaint. He clarified that he had received the complaint from radio control and located and reviewed the relevant docket. He affirmed that upon reading the statement, he formed a suspicion and proceeded to interview the complainant and the plaintiff. The first two requirements for a lawful arrest under section 40(1)(b) are clearly met, Sergeant Ramoshaba was a peace officer who suspected the plaintiff of committing an offence.

Findings: The third requirement is not met. Intimidation is not listed as an offence in Schedule 1 of the CPA. The defendants have therefore failed to show that Sergeant Ramoshaba suspected the plaintiff of committing a Schedule 1 offence. Sergeant Ramoshaba could not have harboured a reasonable suspicion that the plaintiff had committed an offence justifying arrest without a warrant. At best, he acted hastily on incomplete information. Even if the jurisdictional requirements for arrest were met, Sergeant Ramoshaba failed to properly exercise his discretion in deciding to arrest the plaintiff. There is no evidence that he considered alternatives to arrest or that arrest was necessary to ensure the plaintiff's attendance at court. The arrest of the plaintiff was unlawful. As the arrest was unlawful, the subsequent detention of the plaintiff was also unlawful. Even if the initial arrest was lawful, there is no evidence that the need for continued detention was properly considered during the period of 16-29 October 2017.

Order: The first defendant is ordered to pay to the plaintiff damages in the amount of R450,000.

Facts and issue: The appellant instituted an action against the respondent, the RAF, for compensation for bodily injuries sustained by him in a motor vehicle collision. The action was enrolled for hearing. The RAF did not appear at the trial.  The action proceeded based on a judgment by default. After hearing the plaintiff’s evidence on the occurrence of the collision, the court a quo dismissed the action on the basis that the appellant had failed to establish either the involvement of another vehicle or the negligence of the driver of such vehicle. Leave to appeal to this court was granted by the court a quo.

Discussion: In this matter, only the appellant testified, and his evidence stands unchallenged. A driver of the VW made a threatening sign indicating that he was going to cut the appellant’s throat. The appellant interpreted the sign as an indication of the VW’s occupants’ intention to harm or hijack him. He drove off in the direction of the police station. On the way, there was a speed hump on the road for which he slowed down. It was at this point, that the VW bumped into the rear of his Nissan bakkie. It caused him to lose control of his vehicle, and he only regained consciousness some three days later when he awoke in the hospital. The appellant knew neither the driver of the VW nor its occupants and could not identify them or the vehicle they were driving save by describing them as he had in evidence. The appellant was seriously injured and for approximately eight months after the collision, he was unable to walk without the assistance of a walking frame.

Findings: The evidence of the appellant established the pleaded case that an unidentified vehicle driven by an unidentified person, collided with the rear of his vehicle, causing him to lose control.  This evidence is clear and unequivocal. The evidence of the appellant established the pleaded case.  It is not improbable that the driver of a motor vehicle, with which another motor vehicle collided from the rear, in the circumstances testified to by the appellant, would lose control of his vehicle. In the circumstances, the evidence of the appellant established not only that a collision in fact occurred, but also the negligence of the driver of the VW vehicle in its causation.

Order: The appeal is upheld. The order of the court a quo is set aside and replaced. The defendant is ordered to pay 100% of the plaintiff’s agreed or proven damages.

Facts and issue: This is a personal injury, and damages claim against the Road Accident Fund emanating from an incident involving a Hangcha 5t Series Forklift, (the insured vehicle) driven by one Mr Horn, (insured driver). The plaintiff who was a pedestrian was injured when the load of the forklift fell on him in a parking lot which constitutes a public space of road. The question is whether the forklift in question qualifies as a motor vehicle in terms of the Road Accident Fund Act 56 of 1996 and consequently, whether the plaintiff’s claim for compensation qualifies in terms of the provisions of the RAF Act.

Discussion: Although the plaintiff relies on the evidence of Mr Horn and Mr du Plessis in its assertion that the forklift is designed or adapted for use on a public road, neither Mr Horn nor Mr du Plessis is an expert on forklifts generally or the forklift in question. These two witnesses are not alleging that they work for the designers or manufacturers of the Hangcha 5t series forklifts. Mr Horn only alleges that he works for Riveo, the owner of the Hangcha ST-5T R Series forklift in question. In short, they are not expert witness regarding the operations of the machinery and cannot therefore with authority say that the forklift has been designed or adapted for use on public roads or streets. A warning is sounded under paragraph 5 at page 34 of the manual that that it will be dangerous to apply brakes suddenly as that may cause the forklift to capsize. This means that should this forklift find itself in a situation where it must make an emergency stop, it is more than likely to cause an accident and endanger other road users. Given the traffic conditions on the roads, it should be accepted that all vehicles operating on the public roads should be able to execute a “dead break” manoeuvre at any time should that be necessary.

Findings: Any vehicle which is not designed to make a sudden stop without causing an accident is not safe for use on the road and cannot be said to be designed or adapted for use on public roads. It is clear from the General Rules in the Manual that the core purpose of the forklift is to lift and move loads around designated places. Considering the work surface preferred in terms of the manual, this forklift was designed primarily to lift and move heavy loads in and around warehouses or construction sites with relatively smooth surfaces and at slower speeds. There is no sufficient evidence to establish that that it was designed as an all-terrain vehicle.

Order: The plaintiff’s claim is dismissed.

Facts: The plaintiff instituted an action for damages against the Road Accident Fund resulting from injuries sustained in a motor vehicle accident. It is alleged that the plaintiff was a pedestrian when he was hit by a motor vehicle. He sustained some bodily injuries and lodged his claim on 17 May 2023 against the defendant for compensation for past and future loss of earnings, general damages and past medical expenses. The RAF forwarded a formal objection in writing to the plaintiff’s claim. The defendant objected to the validity of the plaintiff’s claim alleging it did not meet all the requirements for a valid claim in terms of rule 24(1) of the Road Accident Fund Act 56 of 1996. The plaintiff did not cure the complaint in the objection letter, instead he continued with his claim and issued summons against the defendant.

Special pleas: The defendant, in response to the summons pleaded and raised three special pleas. The first plea pertains to the alleged failure by the plaintiff to lodge a substantially compliant claim in terms of s 24 of the Act, read with Board Notice 271 of 2022. The second plea dealt with the fact that the summons was served before compliance with s24 of the Act by the plaintiff, the defendant’s view being that the summons was issued and served prematurely. The last special plea was that of prescription.

Discussion: The nub of the matter revolves around whether the plaintiff complied with the legislative requirements of s 24 of the Act. The validity of the plaintiff’s claim lies solely on whether the claim lodged with the defendant on 17 May 2023 was valid. The defendant argued that the plaintiff’s claim does not comply with the provisions of s 24 of the Act and must be dismissed. The defendant further contended that the plaintiff had not, despite the defendant’s written objection, complied with these prescripts. With regard to the third special plea, it was argued that because the plaintiff failed to lodge a valid claim within two years, his claim has now prescribed.

Findings: A perusal of the plaintiff’s RAF 1 revealed that the plaintiff is identified as the injured person, and the accident details have been substantially disclosed. The accident report, s 19(f) affidavit and the hospital records are also attached. However, what is lacking are the plaintiff’s employment details. The purpose of RAF1 is to assist the defendant to investigate the accident so as to reach a decision on whether the claim should be defended or not. The RAF1 form, together with the submitted hospital records and the accident report provided sufficient information to enable the defendant to investigate the claim. There was substantial compliance with the provisions of s 24(1) of the Act and a valid claim was lodged by the plaintiff.

Order: The three special pleas are dismissed.

Facts and issue: The plaintiff is 39 years old. At the age of 32, he was injured in a motor vehicle collision. The defendant has conceded liability for 80% of the plaintiff’s proven or agreed damages.  The plaintiff’s claims for past medical expenses, future hospital, medical and related expenses, and loss of earnings and earning capacity have been settled between the parties. The only issue that remains in dispute is the quantum of the plaintiff’s claim for general damages. It is common cause that the plaintiff’s injuries qualify as serious, as contemplated in sections 17(1) and 17(1A) of the Road Accident Fund Act.

Discussion: The plaintiff displays severe functional impairment, mainly because of his left leg pain and limitations. He has been left with poor mobility, agility, balance, and tolerance for standing and walking. According to the plaintiff he can only walk or stand still for about 15 minutes at a time. He is restricted to occasional walking on level terrain, occasional standing and stair negotiation, and is essentially unable to crouch or kneel. The plaintiff’s residual work capacity, career options and employability have been compromised because of the accident. He presents with severe functional impairment, and his competence is curtailed, which makes him an unequal competitor in the open labour market. The plaintiff is currently being accommodated by a sympathetic employer, but should he lose his current employment, it is highly likely that he will have difficulty securing and sustaining employment in the open labour market. All of this adds to the emotional pressures that the plaintiff will henceforth have to endure. He can also no longer operate his private part-time business, which was woodworking. He has therefore, in addition to the loss of earnings concerning his regular job, also suffered the loss of the enjoyment that he used to derive from his woodworking jobs.

Findings: The plaintiff suffered injuries which have had severe and lifelong consequences. He suffered severe fractures to his left leg. The fracture of the femur has united in a malunion. He has been left with significant restrictions of his left leg and cannot straighten the leg fully. He walks with a significant limp. He suffers from ongoing pain and discomfort in his hip, left leg, ankle, and lumbar spine. His mobility is permanently and significantly compromised. He is severely scarred. His condition is expected to deteriorate. He has undergone numerous operations. Further operations are foreseen. The plaintiff can no longer participate in activities that were enjoyable to him, and that used to pose opportunities for the plaintiff, his wife, and twin sons to spend time together as a family over holidays. He has lost not only his favourite leisure activities, but also the family camaraderie that arose from the participation in those activities by his wife and sons.

Order: The defendant shall pay to the plaintiff the sum of R800,000 in respect of general damages.