Minister of Police v Dlwathi

Steve Dlwathi, a practising advocate of the Johannesburg Bar in his sixth year of practice, was unlawfully assaulted by members of the South African Police Service (SAPS) in the presence of friends on 24 June 2005. The assault was perpetrated by police officers acting within the course and scope of their employment. As a result of the assault, Mr Dlwathi sustained multiple physical injuries including: damage to the tympanic membrane of his left ear with resultant hearing loss requiring a hearing aid; blunt force trauma to the head and jaw resulting in facial and dental injuries with multiple loss and damage to teeth and temporo-mandibular joints; blunt force trauma to the face resulting in lacerations and bleeding; and soft tissue injury to the cervical spine. He also suffered psychiatric and psychological sequelae including major clinical depression (chronic with poor prognosis), loss of self-confidence, memory and concentration difficulties, withdrawal from hobbies and social activities, increased irritability, anxiety, and post-traumatic stress symptoms. Mr Dlwathi testified that his practice suffered as briefs dwindled, eventually causing him to close his practice and resign from the Johannesburg Bar in 2009. He subsequently took employment with the Department of Justice as a senior State advocate. The Minister of Police conceded merits and liability, and the trial proceeded only on quantum of damages.

• Whether the trial court erred in awarding general damages of R675,000 for pain, suffering, disfigurement and loss of amenities of life
• Whether the trial court misdirected itself by introducing a punitive element in assessing general damages
• What constitutes fair and adequate compensation for general damages in comparable cases
• The appropriate standard for appellate interference with awards of general damages

The appeal was upheld in part. Paragraph 1 of the trial court's order was set aside and substituted with an order that the defendant pay the plaintiff R200,000 for general damages (reduced from R675,000). The appellant was ordered to pay the respondent's costs of appeal. The trial court's punitive costs order on an attorney and own client scale against the Minister was not disturbed.

The binding legal principles established are: (1) General damages are awarded for bodily injury including injury to personality, with the object being to compensate loss, not punish the wrongdoer. Introducing a punitive element to deter unlawful conduct in assessing general damages constitutes a misdirection. (2) An appellate court will interfere with an award for general damages where there is a striking disparity between what the trial court awarded and what the appellate court considers ought to have been awarded, or where there has been an irregularity or misdirection. A misdirection may be inferred from a grossly excessive award. (3) In assessing general damages with reference to awards in previous cases, the facts must be looked at as a whole and cases must be broadly similar in all material respects to be truly comparable. Previous awards serve as useful guides but have no higher value than that. (4) Fair and adequate compensation is the objective in assessing appropriate general damages awards.

The Court made several important obiter observations: (1) The Court expressed concern about the manner in which the trial was conducted by the Minister's legal representatives, noting numerous ill-considered concessions and agreements that resulted in contested issues becoming common cause. (2) Particularly, the concession that Mr Dlwathi suffered from depression was criticized as having been incorrectly made, as the evidence on this aspect was not strong and appeared to be based largely on the plaintiff's own narrative without adequate corroboration, which appeared doubtful or exaggerated. (3) The Court noted that Dr Grinker's psychiatric conclusions appeared to be based largely on Mr Dlwathi's own narrative of symptoms without corroboration. (4) The Court observed that the concessions caused the trial judge 'some exasperation, quite understandably so.' (5) The Court commented on the lack of clarity regarding computation of past and future loss of earnings due to part of the record not being transcribed. (6) The Court noted the 'unseemly and unprofessional conduct' of the Minister's legal team, including failure to provide expert witnesses with relevant information and reports, causing delays and adversely affecting the calling of witnesses and duration of trial. (7) While these matters did not affect the costs order on appeal (which favored the respondent due to the limited success of the Minister), the Court found no grounds to interfere with the trial court's punitive costs order against the Minister.

This case is significant in South African law for several reasons: (1) It clarifies that general damages must be compensatory, not punitive, and that introducing a punitive element to deter unlawful police conduct constitutes a misdirection. (2) It confirms the principle that appellate courts will interfere with general damages awards where there is a striking disparity, irregularity, or misdirection, which may be inferred from a grossly excessive award. (3) It provides guidance on the appropriate use of comparable cases in assessing general damages, emphasizing that cases must be 'broadly similar in all material respects' and that awards have value only as guides, not as binding precedents. (4) It distinguishes between cases involving actual brain injuries and those involving psychiatric/psychological sequelae from traumatic events without organic brain damage. (5) It demonstrates the serious consequences of poor litigation conduct and ill-considered concessions by legal representatives, upholding punitive costs orders in such circumstances. (6) It reaffirms the objective of general damages awards as being to fairly and adequately compensate injured parties for pain, suffering, disfigurement and loss of amenities of life.