ACTUARIAL CASE LAW REVIEW

Facts: The plaintiff sued the Minister of Police, the National Commissioner of the South African Police Services (SAPS), and the Provincial Commissioner of SAPS for damages arising from his alleged unlawful arrest and detention on 11 October 2018. The plaintiff claimed that he was arrested without a warrant on a charge of theft, detained overnight at the Roodepoort Police Station, and released the next morning without appearing in court. He abandoned claims for assault, defamation, and loss of income during the trial. The defendants argued that the arrest was lawful, as the arresting officer, Captain Myburgh, had reasonable grounds to suspect the plaintiff of theft, a Schedule 1 offence under the Criminal Procedure Act 51 of 1977. The plaintiff, however, contended that the arrest was unjustified, as the dispute was civil in nature, relating to unpaid work for a garage door repair.

Issue: The key issue was whether the defendants had discharged the onus of proving that the plaintiff’s arrest and detention were lawful, based on reasonable suspicion of theft, and whether the arresting officer exercised his discretion rationally. Additionally, the court had to determine the appropriate quantum of damages if the arrest and detention were found to be unlawful.

Discussion: Section 40(1)(b) of the Criminal Procedure Act allows for warrantless arrests if a peace officer reasonably suspects a Schedule 1 offence. The plaintiff argued that the arrest was irrational, as the dispute was civil, not criminal, and that Captain Myburgh failed to investigate the matter properly before arresting him. The plaintiff also described the arrest as violent and humiliating, with poor conditions during his detention. The defendants, however, maintained that the arrest was lawful, as the complainant had laid a charge of theft, and Captain Myburgh acted on reasonable suspicion. The conditions of the detention were considered, with conflicting testimony about the state of the cells and the treatment of detainees.

Findings: Captain Myburgh did not exercise his discretion rationally in arresting the plaintiff. The evidence suggested that the dispute was civil, relating to a breach of contract, and not a criminal matter. Captain Myburgh failed to investigate the docket properly or give the plaintiff an opportunity to explain his side of the story, which would have revealed the civil nature of the dispute. The arrest and detention were unlawful, as the arresting officer lacked reasonable grounds for suspicion and acted mala fide. Regarding quantum, factors such as the plaintiff’s age, the circumstances of the arrest, and the duration of detention were considered, with an award of R35,000 in damages deemed appropriate to compensate for the plaintiff’s injured feelings.

Order: The court ordered the first defendant to pay the plaintiff R35,000 in damages, with interest from the date of summons, and to cover the costs of the suit.

Facts: The plaintiff claimed damages of R450,000 from the Minister of Police (first defendant) and the Minister of Home Affairs (second defendant) for alleged unlawful arrest and detention on 29 October 2018. The plaintiff alleged that she was arrested at her shop in Tzaneen by officials from both departments, detained at the Tzaneen Police Station, and subjected to deplorable conditions. The defendants denied that any arrest or detention occurred. The plaintiff and three of her employees testified, while the defendants closed their case without calling any witnesses. The plaintiff’s case relied heavily on her testimony.

Issue: The key issue was whether the plaintiff had proven, on a balance of probabilities, that she was unlawfully arrested and detained by the defendants, and whether she suffered damages as a result. The court also had to determine whether the defendants’ failure to call witnesses warranted a negative inference against them.

Discussion: The plaintiff testified that she was arrested at her shop, taken to the police station, and detained in poor conditions without food or water. However, her testimony was inconsistent and contradicted by her employees. For instance, her employees testified that she arrived at the police station separately and was not subjected to the same treatment as they were. The plaintiff also retained her cell phone during the alleged detention, which was unusual for detainees. The plaintiff’s testimony was less credible due to these inconsistencies and her selective recollection of events. The defendants argued that no arrest or detention occurred, and the plaintiff’s own witnesses undermined her version of events.

Findings: The plaintiff’s argument that the defendants’ failure to call witnesses should lead to a negative inference was rejected, as the plaintiff bore the burden of proving her case. The plaintiff failed to prove, on a balance of probabilities, that she was arrested or detained by the defendants. The inconsistencies in her testimony and the contradictions from her employees rendered her version unreliable. There was no basis for holding the second defendant liable, as there was no evidence linking them to the alleged arrest or detention. Consequently, the plaintiff’s claim could not succeed.

Order: The court dismissed the plaintiff’s claim with costs on a party-and-party scale, including costs for counsel on Scale B.

Facts: The plaintiff sued the Minister of Police and the National Director of Public Prosecutions for damages arising from his alleged unlawful assault by police officers during his arrest, sexual assault by co-detainees while in custody, and unlawful detention. The plaintiff claimed that he was arrested in September 2016, assaulted by police officers, and later sexually assaulted by fellow detainees at the Orange Farm Police Station. He also alleged that his detention was prolonged unlawfully, as he was not brought before a court promptly. The plaintiff sought damages for physical injuries, psychological trauma, and the violation of his constitutional rights. The Minister of Police denied the allegations, arguing that the arrest and detention were lawful and that there was no evidence to support the claims of assault or sexual assault.

Issue: The key issues for determination were whether the police officers unlawfully assaulted the plaintiff during his arrest; whether the plaintiff was sexually assaulted by co-detainees while in custody, and if so, whether the Minister was liable; and whether the plaintiff’s detention was unlawful. The court also had to determine the appropriate quantum of damages if the plaintiff’s claims were proven.

Discussion: The plaintiff testified that he was assaulted by police officers during his arrest, sustaining injuries including a fractured rib and hip. He also described being sexually assaulted by co-detainees in the police cells, which caused him severe psychological trauma. The plaintiff’s claims were supported by medical reports and expert testimony from a psychiatrist, who confirmed that he suffered from post-traumatic stress disorder (PTSD) and depression as a result of the assaults. The Minister’s witnesses, including police officers, denied the allegations of assault and argued that the plaintiff’s injuries were not caused by them. However, inconsistencies were found in the police officers’ testimony and their failure to provide adequate evidence to rebut the plaintiff’s claims were noted.

Findings: The plaintiff was unlawfully assaulted by police officers during his arrest, as his injuries were consistent with his testimony and supported by medical evidence. The plaintiff was sexually assaulted by co-detainees due to the police’s failure to ensure his safety and comply with standing orders. Regarding the conditions of the plaintiff’s detention, the police failed to comply with standing orders regarding cell surveillance and the separation of detainees, which contributed to the sexual assault. Additionally, the plaintiff’s detention was unlawful, as he was not brought before a court promptly, and his prolonged detention was unjustified.

Order: The court ordered the Minister of Police to pay the plaintiff a total of R680,000 in damages, broken down as follows: R80,000 for the assault by police officers, R250,000 for the sexual assault by co-detainees, and R350,000 for unlawful detention. The Minister was also ordered to pay interest on the amounts from the date of summons and to cover the plaintiff’s legal costs, including the fees of expert witnesses.

Facts: The plaintiff, Andile, filed a claim against the Road Accident Fund (RAF) for R2,160,000 in damages following a motor vehicle accident near Secunda, Mpumalanga. The plaintiff alleged that the collision was caused solely by the negligence of an unknown insured driver, resulting in injuries to his ankle, left knee, and multiple bruises. The RAF denied liability, claiming the plaintiff was negligent and raised two special pleas: the plaintiff’s injuries were not "serious" as per the Road Accident Fund Act 56 of 1996 (RAF Act), and the plaintiff failed to submit a Serious Injury Assessment Report. The parties agreed to proceed on the merits only, as quantum was undisputed. The plaintiff testified that he swerved to avoid a collision with a vehicle overtaking a truck, but the RAF did not call any witnesses or provide evidence to counter the plaintiff’s claims.

Issue: The key issue was whether the plaintiff proved, on a balance of probabilities, that the insured driver’s negligence caused the collision, and whether the plaintiff complied with the statutory requirements under the RAF Act, particularly section 19(f)(ii), which mandates the submission of all relevant documents and statements.

Discussion: The plaintiff’s evidence was analysed, and inconsistencies were found between his testimony, the accident report, and the absence of the police docket and witness statements. The plaintiff failed to provide the RAF with the police docket and other crucial documents, as required by section 19(f)(ii) of the RAF Act. The plaintiff failed to call the police officer who drafted the accident report, which could have clarified discrepancies. The RAF did not pursue its contributory negligence plea, and the insured driver’s absence was unexplained. Referenced case law, including Lee v Minister for Correctional Services 2013 (1) SACR 213 (CC), emphasized the need for factual and legal causation in negligence claims. The plaintiff’s version was the only one before court, and it was riddled with imperfections, as he failed to comply with the provisions of section 19(f)(ii), which require that all statements and documents be provided to the RAF for perusal in consideration of the claim. There was sufficient proof of negligence on the part of the insured driver as the collision occurred on the plaintiff’s side of the road, as supported by the accident report, meaning the plaintiff should succeed 100% on the merits. The only obstacle was non-compliance with section 19(f)(ii).

Findings: The plaintiff’s version was inconsistent with the short statement of the insured driver contained in the accident report. Both parties and any witness’ statement contained in the docket could have been of great assistance in that regard. In the plaintiff’s version, the collision occurred as the insured driver encroached on his side of the road, when overtaking a truck. His version in the section 19(f)(i) statement and the accident report contains different information. In the absence of statements in the docket, as provided for in section 19(f)(ii) or evidence of the person who compiled the accident report, the plaintiff’s claim cannot succeed for non-compliance with the RAF’s liability requirement as provided for in section 19(f) (ii) the RAF Act.

Order: The court dismissed the plaintiff’s claim, with each party ordered to pay their own costs.

Facts: The plaintiff, acting on behalf of Motlhale, claimed damages from the Road Accident Fund (RAF) for injuries allegedly sustained in a motor vehicle accident in Kagiso, Krugersdorp. The plaintiff alleged that the accident occurred when a white bakkie driven by Makwala collided with Motlhale, who was a pedestrian. The plaintiff’s case relied on the testimony of a single witness, Ms Moswetsi, who claimed to have witnessed the accident. She testified that the bakkie failed to stop at a stop sign, hit Motlhale, and drove off. The defendant, RAF, disputed this version, calling two witnesses who testified that Motlhale was injured in a fight at a shebeen and struck by bricks, not a vehicle. The defendant’s witnesses included Mr. Mothopeng, who was with Motlhale at the time, and Mr. Makwala, the driver of the bakkie, who denied any collision.

Issue: The core issue was whether the plaintiff’s injuries were caused by a motor vehicle accident due to the negligence of the insured driver, or whether they resulted from an unrelated assault. The credibility of the single witness, Ms Moswetsi, was pivotal to the plaintiff’s case. The court had to determine which version of events was more credible and whether the plaintiff had discharged the onus of proving negligence on the part of the insured driver.

Discussion: Ms Moswetsi’s testimony contained inconsistencies, such as her description of the vehicle and the location of the collision. She also admitted to not having a driver’s license, which cast doubt on her ability to estimate the speed of the vehicle. In contrast, the defendant’s witnesses, particularly Mr. Makwala, provided consistent and credible testimony, supported by a police statement, that no collision occurred. Mr. Mothopeng’s evidence, though inconsistent with some of his prior statements, corroborated the defendant’s version that Motlhale was injured in a fight. The plaintiff failed to call additional witnesses or present corroborative evidence, such as hospital records or police testimony, to support the claim of a motor vehicle accident.

Findings: Ms Moswetsi’s testimony was unreliable due to inconsistencies and improbabilities. Her inability to accurately describe key details of the accident, coupled with the lack of corroborative evidence, weakened the plaintiff’s case. Conversely, the defendant’s witnesses provided credible and consistent accounts, supported by documentary evidence. The plaintiff had failed to prove, on a balance of probabilities, that the injuries were caused by a motor vehicle accident or that the insured driver was negligent.

Order: The court dismissed the plaintiff’s claim with costs, ruling that the plaintiff had not met the burden of proof required to establish liability on the part of the RAF.

Facts: The plaintiff, Maduse, claimed damages from the Road Accident Fund (RAF) for injuries sustained in a motor vehicle collision on 4 May 2015. While riding his bicycle along Malibongwe Road in Randburg, he was struck from behind by a truck that did not stop, leaving him with a fractured left arm. The plaintiff lodged a claim directly with the RAF in 2017, but the claim was later rejected due to alleged non-compliance with documentation requirements. The plaintiff subsequently sued the RAF for R1,919,306. The defendant raised a special plea of prescription, arguing that the claim had lapsed due to the plaintiff’s failure to submit required documents, including hospital records and doctor’s particulars. The plaintiff countered that the RAF 1 form and accompanying medical records provided sufficient information, and that the defendant’s rejection of the claim was unjustified.

Issue: The key issue was whether the plaintiff had complied with the requirements of the Road Accident Fund Act 56 of 1996 (RAF Act), particularly in proving that the collision resulted from the negligence of an unidentified driver, and whether the claim had prescribed due to non-compliance with documentation requirements. Additionally, the court had to determine whether the plaintiff was contributorily negligent for riding his bicycle on a road allegedly classified as a freeway and for not wearing a helmet.

Discussion: The plaintiff’s testimony detailed the accident and his injuries. The plaintiff argued that the RAF 1 form and medical records substantially complied with the statutory requirements, and that the defendant’s rejection of the claim was improper. The defendant contended that the plaintiff’s failure to provide specific documents, such as hospital records and doctor’s particulars, rendered the claim non-compliant and subject to prescription. The defendant also argued that the plaintiff was contributorily negligent for riding on a freeway and not wearing a helmet. The plaintiff’s testimony was credible and consistent, despite minor discrepancies such as forgetting the name of the person who assisted him after the accident. There was no evidence to support the defendant’s claim that Malibongwe Road was a freeway or that the plaintiff’s lack of a helmet contributed to his injuries.

Findings: The plaintiff had substantially complied with the RAF Act’s requirements by submitting the RAF 1 form and medical records, which provided sufficient information about the accident and injuries. The special plea of prescription was dismissed, as the defendant’s rejection of the claim was not justified. The defendant’s argument of contributory negligence was also rejected, finding no evidence that the plaintiff’s actions contributed to the accident or his injuries. The plaintiff had proven his case on a balance of probabilities and the defendant was liable for 100% of the proven damages.

Order: The defendant is liable to compensate the plaintiff for 100% of the proven damages. The defendant was also ordered to bear the costs of the trial.

Pre-accident scenario: The plaintiff is the father and natural guardian of a minor child who was 10 years old at the time of the accident. The child was a Grade 4 student and lived with his parents. Prior to the accident, the minor child was performing well academically, with marks ranging between 70% and 90% in earlier grades, although there was a slight decline in performance in Grade 3 and Grade 4.

Accident and injuries: On 29 September 2017, the minor child was a passenger in a motor vehicle that overturned after the insured driver lost control. The accident occurred between Kestrel and Flamingo Streets, Mackenzie Park, Benoni. The child sustained multiple severe injuries, including a mild traumatic brain injury, loss of lower teeth, facial disfigurement, fractures to the nose and mandible, and soft tissue injuries to various parts of the body. He was hospitalized and required extensive medical treatment.

Post-Accident scenario: Following the accident, the minor child experienced significant cognitive and physical impairments. He struggled with memory, comprehension, and concentration, leading to a decline in academic performance. Experts concluded that he would not be able to complete Grade 12 and recommended placement in a special needs school. The child also suffers from chronic pain, post-concussion headaches, and emotional distress due to facial disfigurement. His future employment prospects are severely limited, with experts suggesting he may only be suited for supported or sheltered employment.

Discussion: The expert reports detailed the minor child’s pre- and post-accident potential. Notably, the industrial psychologist did not make a provision for a possibility of the minor child being self-employed. All the postulations were based on potential for employment in the formal sector. There was no postulation on the possibility that once he is equipped with knowledge and practical skills by the TVET college, it is likely that he may establish his own business once he qualifies for a specific trade. That information is important for the court to take account of in determining a just fair compensation. The effect thereof will be that this possibility would influence the contingency that the court will have to apply. The defendant did not appoint experts or dispute the plaintiff’s evidence, leading the court to accept the plaintiff’s uncontested expert reports.

Findings: Even though the minor child’s performance declined after the accident, he has never failed any grade before and after the accident. The accident significantly impacted the minor child’s earning capacity. Applying a 25% contingency deduction to pre-morbid earnings and a 30% deduction to post-morbid earnings, R5,167,506.30 was awarded for loss of earning capacity. Additionally, R1,192,248.17 was awarded for past medical expenses, bringing the total compensation to R7,659,754.47, including the previously agreed R1,300,000 for general damages.

Order: The defendant was ordered to pay the total amount of R7,659,754.47, which includes general damages, loss of earning capacity, and past medical expenses. The funds are to be held in trust for the minor child, and a trust must be established within six months to manage the funds. The defendant is also required to provide an undertaking for future medical expenses. Costs were awarded to the plaintiff, including fees for experts and legal representation.