---

(TRANSKEI DIVISION) CASE NO. 1034/2004

In the matter between :

DIDEKA FLORENCE MADYIBI PLAINTIFF

And

MINISTER OF SAFETY AND

SECURITY FIRST DEFENDANT

SUPERINTENDENT XOLISA

DLAKAVU SECOND DEFENDANT

_________________________________________________________

JUDGMENT

_________________________________________________________

PETSE ADJP

[1] When two parties decide to get married they often and almost without exception declare their undying love for each other. As they exchange their marriage vows each solemnly promise to love, respect, cherish, honour, protect, comfort and, forsaking all others, to be faithful to each other for better or for worse for as long as both shall live. Often neither party ever spare a thought to ponder if their declarations of unceasing love for each other would ever prove one day to have have been nothing but an unattainable or even a wishful expectation.

[2] The sad and tragic facts of this case aptly demonstrate to what extent the expectations of the parties often turn out to have been nothing but a pipedream once the excitement and fanfare, with which the couple about to get married is invariably overwhelmed, have evaporated and the couple is now faced with the trials and tribulations of real life.

[3] Ms Dideka Florence Madyibi (“the plaintiff”) was previously married to Sergeant Pumzile Madyibi (“the deceased”) but that marriage came to a tragic end on 23 January 2003 when the plaintiff was shot and severely injured by the deceased in the bathroom of their common home at Ngqeleni with a service firearm issued to the deceased by the second defendant acting in the course of and within the scope of his employment with the first defendant.

[4] Having shot and severely injured the plaintiff the deceased then committed suicide. As a consequence of the shooting the plaintiff suffered severe bodily injuries one of which was on her throat when a bullet fired at her by the deceased struck her on her neck.

[5] As a sequel to the shooting the plaintiff instituted legal proceedings for damages against the defendants in this Court both in her personal capacity as also in her representative capacity as the mother and natural guardian of their four minor children born of their marriage.

[6] The plaintiff claimed damages against the defendants under three principal heads which for the sake of convenience and completeness and to the extent necessary for present purposes I set out hereunder. I take the liberty to quote verbatim from the plaintiff’s particulars of claim :

CLAIM A

“12.1 Pain and suffering for more than a year subjected to, a number of further

operations and observations

(temporal) = R100 000.00

2. Discomfort for a period of eight

(8) months using a breathing cube

Including hospitalization = R 70 000.00

2. Past hospital expenses as per

Medical bills presented = R 54 106.35

2. Estimated future medical

expense as per doctor’s

assessment = R100 000.00

CLAIM B

Plaintiff is qualified teacher by profession which profession by its very nature requires an ability to speak and communicate clearly.

From the date of the shooting incident plaintiff is not able to speak and/or communicate clearly and as such is not employable as a teacher.

15.

Plaintiff has therefore suffered damages in the form of a loss of earning capacity which is estimated at R1000 000.00 (One Million Rands) being fair and reasonable compensation which she holds first defendant vicariously liable.

16.

CLAIM C

As a result of the death of the plaintiff’s husband occasioned by second defendant’s omission plaintiff suffered loss of support in the sum of three Million Rand (3000 000.00) being fair and reasonable compensation in respect of herself, four (4) minor kids fathered by her late husband being divisible as follows:-

Plaintiff = R600 000.00

Zona Madyibi = R600 000.00 :Born on

the 14^th November 1991

Asiphe Madyibi = R600 000.00 : Born on

the 7^th July 1994

Nangamso Madyibi = R600 000.00 :Born on

the 17^th March 1990

Sibabalwe Madyibi = R600 000.00 : Born on

the 3^rd February 1999

[7] In pursuit of her claim the plaintiff relied on a variety of grounds of negligence which are encapsulated in paras 6, 7, 8 and 9 of the plaintiff’s amended particulars of claim dated 6 November 2006 and filed of record on 7 November 2006. In order not to unduly overburden this judgment I do not propose to regurgitate them in this judgment. It suffices merely to mention that at the conclusion of the adduction of evidence at the trial the defendants conceded liability and thus all the claims of the plaintiff both in her representative and personal capacities bar the claim in respect of the plaintiff’s loss of income and/or earning capacity. This is an issue to which I shall return later in this judgment.

[8] It bears mentioning at this juncture that it was common cause between counsel on both sides that the regulatory framework within which applications for service firearms by members of the South African Police Service (“SAPS”), whether on or off duty, were, at all times material to these proceedings, made and considered by the Police authorities as also the factors that had to be taken cognizance of when consideration is given to such applications is comprehensively set out in a document titled “Provincial Order 2 of 1998” issued by Acting Provincial Commissioner N.J. Slabber on 27 June 1998.

[9] The defendants, in their plea, denied that they were negligent in any of the respects alleged in the plaintiff’s amended particulars of claim or at all. In the alternative the defendants pleaded that even if it were established that the first defendant’s servants were negligent in one, some or all of the respects alleged by the plaintiff such negligence was not the proximate or direct cause of the plaintiff’s damages. The defendants also pleaded in the further alternative that there was justification for them in issuing the deceased with a service firearm both on and off duty. However, in view of the fact that the defendants, after the adduction of evidence, conceded that the plaintiff did in fact establish that members of SAPS were negligent in issuing the deceased with a service firearm and that such negligence was the proximate or direct cause of the plaintiff’s damages it is unnecessary to consider this aspect of the case further.

[10] I consider it timely at this juncture to record that at the commencement of the trial a joint application was made on behalf of the parties from the Bar for a separation of the issue of liability from the issue of quantum it being the joint view of counsel that this was a proper case to order separation of issues in terms of Rule 33(4) of the Uniform Rules. Counsel were ad idem that it would be appropriate to exercise my discretion by directing that the issue of liability should be determined first at the trial with the issue of liability to stand over for determination at a later stage, if necessary. Being satisfied that it would, inter alia, be cost effective and convenient to this Court to separate the issues I made an order accordingly.

[11] I should also mention that the joint application for a separation of issues to which reference is made in the preceding paragraph hereof was made pursuant to the agreement reached between the parties at their first pre-trial conference in terms of Rule 37 of the Uniform Rules convened on 10 October 2005. In paragraphs 5 and 6 of the pre-trial minute the following agreement between the parties is recorded, viz:

“5. The issues which falls to be determined are :

5.1 whether the second defendant committed an omission in the manner and to the extent set out in paragraph 6 of the plaintiff’s amended particulars of claim;

5.2 whether the second defendant owed the plaintiff a legal duty as alleged in paragraph 7 of the amended particulars of claim;

3. whether the defendants are liable to the plaintiff in damages as a result of the assault on the plaintiff; and

4. the quantum of damages.

6. The parties agree that the issue referred to in subparagraphs 5.1 to 5.3 above fall to be dealt with separately from that of quantum and that they will jointly seek an order in terms of rule 33(4) at the commencement of the hearing of this matter.”

[12] The ensuing trial was consequently conducted and proceeded with in accordance with the terms encapsulated in paragraphs 5 and 6 of the pre-trial minute as set forth in para [11] hereof. The significance and relevance of my recordal of this fact at this point shall become more apparent later in this judgment when I deal with the arguments advanced by counsel in relation to the sole outstanding issue that requires my adjudication in these proceedings to which reference has been made in para [7] above.

[13] I should record, perhaps at the risk of stating the obvious, that given the fact that the defendants have since conceded liability whatever material dispute there might have been between the evidence tendered on behalf of the plaintiff on the one hand and that of the defendants on the other is of no real consequence. The changed circumstances dictate that this Court must accept the plaintiff’s evidence as correct. Indeed this is what was foreshadowed in the defendants’ heads of argument, a fact that was subsequently confirmed by Mr Mbenenge SC (assisted by Mr Zilwa) when he presented his oral argument on behalf of the defendants.

[14] The trite proposition in relation to a claim for loss of earning capacity that under the lex Aquilia the wrongdoer must make good the difference between the value of the claimant’s estate after the commission of the delict and the value it would have had if the delict had not been committed and the capacity to earn money is regarded as part of a person’s estate with the result that the loss or impairment of that capacity constitutes loss if such loss diminishes the claimant’s estate is settled in our law as to require no supportive citation of authority. This much was accepted by the defendants.

[15] It was then argued on behalf of the defendants that what then remained to be determined following the closure of both the plaintiff’s and the defendants’ cases was whether the plaintiff had proved that her physical disability has diminished her estate leaving her only with the onus of quantifying the extent of such loss.

[16] Before I proceed to consider the respective contentions of the parties I deem it necessary to sketch briefly the salient features of the plaintiff’s evidence to the extent necessary for present purposes.

[17] The plaintiff is a qualified teacher by profession and holds the degree of Bachelor of Arts in Education and a Certificate in Counseling the Young and the Old obtained respectively at Walter Sisulu University and University of South Africa. She was unemployed on the fateful night when she was shot at and injured by the deceased. She told the Court that she was carrying on business of what she described as “a spaza shop” operated from a separate structure at their common home. The Court observed that her voice was hoarse when she testified and she attributed this condition to the gunshot wound to her neck. She told the Court that on 23 January 2003 she was shot at by the deceased to whom she had been married since 1990 in the bathroom of their common home. The bullet fired by the deceased struck her on the neck injuring her throat which injury also affected her laryinx and voice box. From her marriage with the deceased four minor children were born, namely :

1. Nangamso, a boy born on 17 March 1990;

2. Zona, a girl born on 14 November 1991;

3. Asiphe, a girl born on 7 July 1994; and

4. Sibabalwe, a girl born on 3 February 1998.

The deceased was a member of the SAPS who was at the time of his death stationed at Ngqeleni, attached to the Detective Unit and serving under the overall command of the second defendant who was at all material times the Station Commissioner. Although she enjoyed a happy marriage relationship with the deceased initially their relationship, however, began to deteriorate steadily over the years to a point where their marriage reached a state of disintegration. She attributed the ills of their marriage relationship to the deceased who neglected his responsibilities towards the minor children born of the marriage when he failed to maintain them. Again the deceased associated on unduly intimate terms with other women one of whom was also a member of the SAPS stationed at Ngqeleni. Whenever she confronted the deceased about her extra-marital relationships he would respond with rage and assault her. There was no meaningful communication between them as a married couple. The deceased at some point left the common home and went to cohabit with his co-employee with whom he had a love relationship. On one occasion she and Superintendent Somtunzi were held hostage in the main bedroom of their common home during the dead of night by the deceased who was wielding his service firearm because the deceased was accusing them of meddling in his love relationship with his co-employee. They were rescued from that situation by, amongst others, the second defendant. After having been spoken to by his superiors it appeared, albeit for a short while, that normality had been restored in their marriage when the deceased returned to the common home. This uneasy reconciliation was, however, short-lived when the deceased went back to his old extra-marital escapades. When she turned to her mother-in-law in the expectation that she would make the deceased see the folly of the destructive path that he was embarking on this too, far from bringing the deceased closer to her, had the opposite effect of widening the rift that existed between them. Plaintiff was, however, not dissuaded in her resolve to make the marriage work. She turned to her in-laws on the suggestion of her mother-in-law. A family meeting was then convened between the deceased, plaintiff and Messrs Pumelele and Bonginkosi Madyibi. The deceased was rebuked for his unbecoming conduct whereafter he apologized for his misdearneanours. This truce again was short-lived. The situation took a turn for the worst when the deceased developed a habit of bringing women with whom he had extra-marital relationships to the common home in plaintiff’s presence. The deceased would assault her at the slightest provocation and such assaults continued unabated throughout. In August 2002 the deceased set the spaza shop on fire and attempted to kill her and commit suicide when he locked all the exit doors in the house whilst both of them were inside, released highly inflammable gas from a gas cylinder and then lit a match. They were again rescued from certain death by the second defendant who was with, amongst others, Inspector Kutwana. The deceased became more violent and abusive as days went by. Appeals by plaintiff to the second defendant, her in-laws and the Area Commissioner’s office in Mthatha did not bring any respite to the plaintiff in her perilous situation as no effective action was taken against the deceased despite undertakings by those in authority that this would be done. On 23 January 2003 the deceased arrived back at the common home. He forced the plaintiff into the bathroom pointing her with his service firearm. Once the plaintiff was in the bathroom he lifted her and put her in the bath, cocked his firearm and with the muzzle of the firearm thrust against her neck he fired a shot at point-blank range. She then lost consciousness momentarily and on regaining it realized that the deceased had committed suicide by shooting himself. She called for help and when help came she was taken to hospital by members of the SAPS who had responded to her clarion call. She remained in hospital for a month undergoing treatment.

[18] The aforegoing is then a summary of the sorry tale and chilling account related by the plaintiff about her married life which demonstrates that plaintiff was, over the years, subjected to sustained physical and emotional abuse at the hands of the deceased. So much then for the plaintiff’s evidence.

[19] It was argued on behalf of the defendants that the plaintiff’s claim for loss of earning capacity is founded on the premise that as a consequence of the injuries that she sustained when she was shot at by the deceased “she was not able to speak and/or communicate clearly and as such, is not employable as a teacher” as alleged in paras 13 and 14 of the plaintiff’s particulars of claim. In all fairness to the plaintiff I must pause here to say that this premise was elaborated upon by plaintiff when she testified. Plaintiff told this Court that whilst her voice became somewhat hoarse / slurred as a result of the injuries she sustained her major disability was the discomfort that she experiences when she talks for a considerable length of time because her throat runs dry to a point where she chokes if she forces herself to talk.

[20] In amplification of their contention defendants’ counsel stressed the following and I take the liberty to quote verbatrim from their heads of argument.

19.

“We submit that the mere fact that the plaintiff’s speech was affected in the shooting does not necessarily render her unemployable as a teacher. The teaching profession entails much more than just standing in front of a class and teaching students. This Honourable Court should take judicial notice of the fact that there are other administrative duties in the teaching profession that do not necessarily entail speaking.

20.

We venture to say there are administrative functionaries who earn more than teachers.

21.

We accordingly submitted that, on the facts of this case, the plaintiff has not proved physical disability which brings about a reduction in her earning capacity. In our respectful submission there is no loss to quantify.”

[21] For the aforegoing submissions Mr Mbenenge heavily relied on Rudman v Road Accident Fund 2003 (2) SA 243 (SCA) in which Jones AJA (as he then was) writing for a unanimous Court had this to say at 241H-I to 242 A

“The fallacy in Mr Eksteen’s criticism is that it assumes that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be made. A physical disability which impacts upon capacity to earn does not necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity indeed gives rise to pecuniary loss.”

[22] I regret that I am unable to uphold the contentions advanced on behalf of the defendants. In my view counsel’s reliance on the Rudman’s case, supra is misplaced and amounts to no more than an attempt to snatch a passage from a judgment of the Supreme Court of Appeal out of context which offers no support that is tenable for the proposition advanced.

[23] It is my judgment, that the Rudman’s case supra upon which Mr Mbenenge pinned his faith in support of his contention is materially distinguishable on its peculiar facts from the situation obtaining in casu. My principal reason for reaching this conclusion is twofold. In the first place Rudman’s case had to do with the issue of quantum after the issue of liability had ceased to be in dispute between the parties which is not what is before me at this stage. In the second place I find it surprising, if not mind boggling, that defendants thought they could take the point that the plaintiff has not placed evidence before this Court to prove that her physical disability has diminished her estate. In my view such an attempt is, with respect, misguided as it flies in the face of the agreement between the parties encapsulated in paras 5 and 6 of the pre-trial minute to which reference has already been made in para [11] of this judgment. As a matter of common sense and simple logic it seems to me that it was premature of the defendants to call in aid at this stage of the proceedings the authority of the Rudman’s case, supra.

[24] On the contrary I accept the argument urged upon this Court by Mr Dukada to the effect that the question of whether the plaintiff is employable or not or whether she has any residual earning capacity is a matter that can only be appropriately dealt with, as he put it, at the stage of quantum as contemplated in para 5.4 of the pre-trial minute. Plaintiff will, at that stage and not before, be required to present proof that the loss or reduction in her earning capacity indeed gives rise to pecuniary loss.

[25] It remains now to address the issue of costs. By way of prelude it bears mentioning that two fundamental principles need to be stated rather than left unsaid. The first one is that the basic

rule is to the effect that an award of costs is at the discretion of the court with due regard to all the circumstances of the particular case. In Kruger Bros & Wasserman v Ruskin 1918 AD 63 at 69 Innes CJ put it thus :

“The rule of our law is that all costs – unless expressly otherwise enacted – are in the discretion of the Judge. His discretion must be judicially exercised, but it cannot be challenged, taken alone apart from the main order, without his permission.”

Since the pronouncement of this authoritative statement there has been a long line of cases all singing a harmonious chorus affirming this dictum. (See in this regard : Graham v Odendaal 1972 (2) SA 611 (A) 616; Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A); Claude Neon Lights (SA) Ltd v Peroglou 1977 (1) SA 575 (C); Christies Fish Supplies (Pty) Ltd v Ornelas Fishing Co (Pty) Ltd 1978 (3) SA 431 (C); Lornadawn Investments

(Pty) Ltd v Minister van Landbou 1980 (2) SA 1 (A); Bowman v Howe 1980 (2) SA 226 (W); Steynberg v Labuschagne [1998] (3) All SA 384 (O) 390; Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) 1055 F-G; Levben Products (Pvt) Ltd v Alexander Films (SA) (Pty) Ltd 1957 (4) SA 225 (SR) 227; Vassen v Cape Town Council 1918 CPD 360.)

[26] In the second place it is worth noting that even the general rule that has evolved over the years which is firmly entrenched in our law that costs follow the event takes cognisance of this overriding principle. (See in this regard: Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 at 484; Gcanga v A A Mutual Insurance Association Ltd 1979 (3) SA 32 (ECD) at 330; Griffiths v Mutual & Federal Insurance Company Ltd [1993] ZASCA 121; 1994 (1) SA 535 (AD).)

[27] In passing it has to be mentioned that the court’s discretion must be exercised judicially upon a consideration of all the facts of each case in order to do justice to both parties. It is as well to bear in mind that wide though the court’s discretion on costs is, it is nevertheless not an unfettered one. (See in this regard : Gelb v Hawkins 1960 (3) SA 687 (A) 694; Norwich Union Fire Insurance Society Ltd v Tutt 1960 (4) SA 851 (A) 854; Ward v Sulzer 1973 (3) SA 701 (A) 706. Grobler v Boikhutsong Business Undertaking (Pty) Ltd 1987 (2) SA 547 (BT) 581 F-J. Marks v Estate Gluckman 1946 AD 289 314 – 315; Van der Ploeg v Vivier 1966 (3) SA 218 (SWA) 222; Jordan v New Zealand Insurance Co. Ltd 1968 (2) SA 238 (E) 245; Bruwer v Smit 1971 (4) SA 164 (C); BST Kombuise (Edms) Bpk v Abrama 1978 (4) SA 182 (T); Tsosane v Minister of Prisons 1982 (3) SA 1075 (C) 1076; Joubert t/a Wilcon v Beacham 1996 (1) SA 500 (C) 502 C-D. Merber v Merber 1948 (1) SA 446 (A) 453; Bruwer v Smit 1971 (4) SA 164 (C). Barron v Cantor 1912 CPD 295 297. Moller v Erasmus 1959 (2) SA 465 (T) 467. And compare : JW Jagger & Co Ltd v Van Graan 1942 CPD 195 198; Smit v Maqabe 1985 (3) SA 974 (T) 977D-E. f Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (4) SA 799 (W) 804H -805A 806E-F.)

[28] Three interrelated issues arise when it comes to a consideration of the question of costs in this case. In the first place counsel for the plaintiff has asks for costs on the scale as between attorney and client. In the second place there were costs that were wasted during the course of the trial because the plaintiff’s witnesses were not available in Court to testify. Their non-availability compelled the Court to adjourn much earlier than it would ordinarily have done so. In the third place costs were wasted during the course of the plaintiff’s testimony because plaintiff could not continue with her testimony as she experienced discomfort in her throat which discomfort was directly attributable to the throat injury that she sustained as a result of having been shot at and injured by the deceased. In the fourth place there are costs of the unsuccessful application for an adjournment by the plaintiff brought about by reason of the fact that the plaintiff’s camp considered, it would appear, for tactical reasons that it would not be advisable to call the plaintiff to testify before one of her witnesses, namely Inspector Kutwana, testified. I hasten to deal with each of these issues in the same order in which I have set them out above.

ATTORNEY AND CLIENT COSTS :

[29] Counsel for the plaintiff argued that a special costs order against the defendants should be made as a mark of this Court’s disapproval of the manner in which the defendants conducted their defence both during the pleadings stage and at the trial. The foundation for this submission was the contention that the second defendant was mala fide in that at various pleadings stages he denied the existence of certain documents at the Police Station under his control when in fact he knew that such documents were in existence. It was stressed that in so doing the second defendant attempted to suppress damning evidence against the defendants with full knowledge that if such evidence came to the fore it would present an insurmountable hurdle against the defendants. It was also contended that the conduct of the defendants in general and that of the second defendant in particular was vexatious in the extreme in that the defendants sought to defend a case that was in fact indefensible and thereby trifled with the Court.

[30] Before I decide on this issue I think a word or two had better be said on the principles that are of application when it comes to a request to award costs on a punitive scale. It is trite that ordinarily an award of costs on an attorney and client scale is not lightly made and such costs will be awarded only on rare or exceptional occasions. Whilst on this topic I consider the remarks made by Van der Spuy AJ in Ramakulukusha v Commander, Venda National Force 1989 (2) SA 813 (V) at 854 E – 855 (I) to be apposite. The learned Judge expressed himself in these terms :

“But this brings me to the principle sometimes adopted, namely that if a defendant conducts a dishonest defence, or adheres to a defence which was eventually proved to have been without a foundation, the Court may on that ground award attorney and client costs against the unsuccessful person who adhere to such a dishonest defence. I do not consider that the principle of adhering to a defence, which eventually proves to be untrue, should be applied without qualification when awarding attorney and client costs. It seems that, to award attorney and client costs, I have to find that the defendant adopted dishonest tactics in the course of the action or vexatious and frivolous attitude towards plaintiff, or showed malicious intent to draw out the matter deliberately so that plaintiff would be mulcted by his own costs and would not be able to continue the matter. I cannot in the total conspectus of this case discern such an abuse of the Court proceedings that an award for attorney and client costs is justified. It seems to me bad in law to argue that, because there are additional costs occasioned to a litigant which he may not recover on a party bill of costs, these should be catered for by way of special order.”

I wholeheartedly respectfully agree with this approach.

[31] The principle that I have been able to extract from other decisions of our Courts that I have had recourse to, notably Brits v Van Heerden 2001 (3) SA 275 (C) at 286 E-G is that our Courts have awarded costs on the punitive scale in order to penalise dishonest, improper, fraudulent, reprehensible, or blameworthy conduct or where the party sought to be mulcted with punitive costs was actuated by malice or is otherwise guilty of grave misconduct so as to raise the ire of the Court in which event a punitive costs order would be imperatively called for.

[32] Whilst it may be so that the second defendant was not entirely without fault it must, however, be said that whatever fault one is able to put at the door of the second defendant cannot, from what I could make out from his demeanour when he testified, be said to have been prompted by his desire to mislead this Court and/or calculated to suppress the truth. Having observed him testify I must confess that he did not strike me as a particularly intelligent and/or crafty person. By way of example, if one is needed, there is evidence before this Court that on one of the occasions when he responded to the plaintiff’s clarion call and went to the common home of the parties he saw the official firearm issued to the deceased in an unattended motor vehicle parked in the yard lying exposed on the vehicle’s front seat, clearly visible to all passers-by in the dead of night, but left it there when one would have expected a prudent officer in his position to remove it to a place of safety. In retrospect the second defendant readily conceded during his testimony when questioned by the Court that his failure to seize the firearm and/or take disciplinary action against the deceased in such circumstances was both a grievous error of judgment and serious dereliction of duty on his part. To conclude on this issue it bears mentioning that it is my firm view that if any adverse comment against the second defendant is called for it is that not only was his thinking shown to have been somewhat muddled but also that he was guilty of gross ineptitude. It is therefore my well considered view that there is no basis for making the special order for costs sought by the plaintiff.

NON-AVAILABILITY OF PLAINTIFF’S WITNESS:

[33] During the course of the trial the Court could not sit for part of the day set for the continuation of the trial. The main reason for this situation was that the witness that the plaintiff sought to call to give evidence on her behalf was not then in attendance. It is now contended on behalf of the plaintiff that whatever costs that were wasted as a consequence of this are not substantial as to justify my making a special costs order therefor. On the other hand it is contended on behalf of the defendant that I should mulct the plaintiff with the costs that became wasted as a result of the time that was lost. Having reflected on the matter I have to say that I am persuaded (borrowing the expression used by Kroon J in an unreported judgment of this Court) “that it would be appropriate for the plaintiff’s culpability in the matter to be reflected by an order for costs in favour of the defendants” in respect of the Court time lost as result of the plaintiff’s unpreparedness to continue with her case until the end of the day set for it.

WASTED COSTS INCURRED IN CONSEQUENCE OF PLAINTIFF’S TEMPORARY INDISPOSITION

[34] Earlier on in this judgment I adverted to the fact that at two stages during the trial the Court was not able to sit for part of two days because the plaintiff who was at that stage in the witness stand giving her evidence complained that she was experiencing some discomfort in her throat that made it extremely difficult for her to continue her testimony as her voice was directly affected. The issue that now arises is what should become of the costs that became wasted as a consequence of this. Mr Dukada submitted that I should award those costs in favour of the plaintiff despite the fact that the non-sitting of the Court was attributable to the plaintiff. On the other hand Mr Mbenenge argued that I should award such wasted costs in favour of the defendants. In support of his submission Mr Mbenenge called in aid the case of Hlongwane v Roux Van Gass NNO 1948 (1) SA 62 (WLD) in which a successful litigant was ordered to pay the wasted costs at the end of the case occasioned by an earlier adjournment due to that litigant’s own illness. In elaboration it was stressed that there was no admissible evidence presented before this Court by the plaintiff to substantiate her claim that her inability to continue with her testimony was attributable to the injury to her throat.

[35] I regret that I find myself unable to accept the contentions advanced on behalf of the defendants despite the fact that I am aware of instances where a litigant who was responsible for an adjournment on account of ill-health being ordered to pay wasted costs occasioned by the postponement. (See in this regard : Hanson, Tomkin and Finkelstein v D.B.N. Investments (Pty) Ltd 1951 (3) SA 769 (NPD); Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmSC) ).

[36] My disinclination to uphold the defendants’ contentions on the peculiar circumstances of this case is informed by two cardinal considerations. In the first place it is common cause that the plaintiff sustained a bullet wound on her neck fired by the deceased. It is also not in dispute that plaintiff’s neck gunshot wound injured her throat. Indeed despite the fact that plaintiff was subjected to a grueling and taxing cross-examination when she testified it became common cause when liability was conceded that this Court should accept the plaintiff’s version and that her credibility would not be in issue. It therefore can hardly now lie in the mouth of the defendants to contend that there is “no admissible medical evidence” as to the sequelae of the injury to the plaintiff’s throat. It also bears mentioning perhaps at the risk of repetition that it is not in dispute that plaintiff’s disability in so far as it relates to her voice is entirely attributable to or a direct consequence of the gunshot wound that the plaintiff sustained at the hands of the deceased in the circumstances testified to by her during her testimony. That injury is the very basis upon which the plaintiff’s claims in respect of general damages and loss of earning capacity are founded.

[37] In the course of writing this judgment I came across the case of Van Staden v Union and South-West-Africa Insurance Co. Ltd 1972 (1) SA 758 (ECD) at 760 D in which the wasted costs which were incurred during the trial were reserved by agreement between the parties when the adjournment was at the instance of the plaintiff who, due to illness, was unable to attend Court having suddenly and unexpectedly developed a venous thrombosis which necessitated that he should remain in bed. At the conclusion of the trial the plaintiff was successful in his claim and the need to determine liability in respect of the wasted costs occasioned by the postponement arose. The trial Court in the exercise of its discretion held that despite the fact that the matter had been adjourned at the instance of the plaintiff it would not be fair to saddle the plaintiff with the wasted costs when the postponement, so the trial Court held, was caused by the fault of neither party. The trial Court both on principle and equity was driven to the conclusion that the defendants should bear the wasted costs because it was the unsuccessful defendant who, by persisting in his defence, made it necessary for the plaintiff to litigate in the first place and during the course of that litigation the plaintiff was obliged, through no default or fault on his part, to incur the costs of a postponement. Very much the same situation obtained in this case during the course of the trial. I too, for substantially the same considerations that prompted the Court to decide the issue of the wasted costs in the Van Staden’s case, supra in favour of the successful litigant, hold that the defendants should bear the wasted costs under this head. I digress to say that it would be an affront to my sense of justice in the peculiar circumstances of this case to order otherwise.

APPLICATION FOR ADJOURNEMNT

[38] On the 28^th March 2007 the Court was unable to sit for part of the day because the next witness (viz: Inspector Kutwana) whom the plaintiff wished to call before she could herself testify was not available. The plaintiff then intimated through her counsel that she would be seeking an adjournment of the trial to the next day which intimation met with a firm objection from the defendant’s camp. It therefore became necessary for the plaintiff’s camp to make an application for an adjournment which was strenuously opposed by the defendants principally on the basis that the plaintiff failed to make out a case for the adjournment sought. The application was fully argued before me and at the conclusion of argument I dismissed the application but reserved the costs attendant thereupon intimating that I would give a ruling on the issue of costs at the conclusion of trial. By the end of the hearing of the application all concerned accepted that nothing profitable could still be done due to the lateness of the hour.

[39] Here again I am required to decide this issue because counsel were not ad idem as to the question of which party should bear such costs. On his part Mr Dukada argued that regard being had to the fact that the defendants have conceded liability I should order these costs to be costs in the cause because, so went the argument, the concession by the defendants was tantamount to an acceptance by them that the action should never have been defended in the first place. On the other hand Mr Mbenenge countered his opposite number’s contention by arguing that in the light of the applicable trite legal considerations there is no reason why the plaintiff should not be ordered to pay the costs of the unsuccessful application for adjournment and the lost hours that were taken up by such application. This aspect of the case does not, in my view, require any detailed discussion. Suffice it to say that on the view I take of the matter I can conceive of no cogent reason on principle why these costs should not be for plaintiff’s account.

[40] One last word is called for on the issue of costs that have been awarded in favour of the defendants. I consider it to be of utmost importance to qualify the award of such costs in order to assist the Taxing Master when it comes to taxation. The qualification I propose to make will be reflected in the order that will be made infra.

[41] In all the circumstances the following order shall issue :

1. The first defendant is held liable to compensate the plaintiff both in her personal and representative capacities for such damages as the plaintiff may prove to have suffered in respect of the following :

1. pain and suffering, loss of amenities of life, past and future medical and hospital expenses;

2. loss of support;

3. loss of earning capacity.

2. The first defendant shall, subject to paragraphs 3 and 4 hereof, pay all the costs of suit incurred todate of this order.

3. The plaintiff shall pay the costs of the unsuccessful application for adjournment heard on 28 March 2007. For the guidance of the Taxing Master it is recorded that such costs shall be limited to twenty five per centum (i.e 25%) of one day’s costs.

4. The plaintiff shall pay the wasted costs incurred on 26 March 2007 when the Court sat for half the day due to non-availability of plaintiff’s next witness. For the guidance of the Taxing Master it is recorded that such costs shall be limited to fifty per centum (i.e 50%) of one day’s costs.

5. The costs referred to in paragraphs 2, 3 and 4 hereof shall bear interest at the rate of 15,5% per annum calculated from 14 days after allocatur todate of payment thereof.

6. All costs ordered in terms hereof shall include the costs attendant upon the employment of two counsel.

_____________________________________

X. M. PETSE

JUDGE OF THE HIGH COURT

DELIVERED ON : 24 APRIL 2008

PLAINTIFF’S COUNSEL : ADVOCATE N. K. DUKADA SC

(with him ADVOCATE M.N. HINANA)

INSTRUCTED BY : MESSRS V.V. MSINDO & ASSOCIATES

DEFENDANTS’ COUNSEL : ADVOCATE S.M. MBENENGE SC

(with him ADVOCATE P.H.S. ZILWA)

INSTRUCTED BY : THE STATE ATTORNEY, EAST LONDON

---