- December 19, 2022
- |Concise Law Reports (CLR), Delict
In this matter, the plaintiff claimed, from the defendants, damages arising from an alleged assault that occurred on 12 January 2021 at Hardap Correctional Facility. The plaintiff claimed that the fourth defendant while acting in the course and scope of his employment with the first defendant, pushed and pulled the cell’s burglar bar door several times on his left leg resulting in injuries.
The plaintiff further claimed that the assault occurred in sight of other unknown correctional officers who stood idle despite being present and on duty. The correctional officers denied him access to medical attention and treatment on 12 and 13 January 2021 for the injuries sustained. He claimed further that due to refusal of medical care, he was subjected to additional pain, suffering, and discomfort, and by 30 March 2022, when the summons was issued, he still had difficulties in walking. He also claimed contumelia on the basis that his right to bodily integrity was violated.
The plaintiff, as a result, claimed damages for pain and suffering in the amount of N$150 000 and for contumelia N$150 000. In the alternative, he claimed constitutional damages in the amount of N$300 000. He also claims interest at the rate of 20% from the date of judgment as well as costs of suit. The defendants denied the claim. They amplified their plea that the plaintiff was unintentionally hit by the cell door of cell 3 when it was being closed. The defendants pleaded further that the plaintiff received medical attention on 12, 14, 17, 20, 21, and 28 January 2021.
SIBEYA J considered the matter and stated that it is settled law that the plaintiff bears the burden to prove his claim on balance of probabilities. In Mouton v Mouton (I 889/2011) [2021] NAHCMD 91 (26 February 2021), Ueitele J said the following regarding the test applicable to delictual claims based on assault:
‘[30] In the unreported judgment of Lubilo and Others v Minister of Safety and Security, (I 1347/2001) [2012] NAHC 144 (delivered on 8 June 2012), this Court remarked that an assault violates a person’s bodily integrity and that every infringement of the bodily integrity of another is prima facie unlawful. Once infringement is proved, the onus moves to the wrongdoer to prove some ground of justification. But before that duty arises, the plaintiff must allege and prove the fact of physical interference. It thus follows that in order to succeed in his claim the plaintiff carries the onus to prove the physical infringement of his body (by the application of force to his body) by the defendant. The onus to show justification for the infringement of the plaintiff’s body is on the defendant (Mabaso v Felix 1981 (3) SA 865 (A)).
The question for determination was whether the plaintiff was assaulted by the fourth defendant or not. The moment it is established that the plaintiff was assaulted by the fourth defendant, then the onus shifts to the defendants to prove justification for the assault. It was held that:
- There was overwhelming evidence that the injuries sustained by the plaintiff were consistent with the attack to the left leg after being hit by a cell burglar door.
- Held further that it was foreseeable that hitting the plaintiff on the leg with a cell burglar door, causes injuries.
- Held further that any bodily interference with or restraint of a man’s person which is not justified in law, or excused by law, or consented to, is a wrong, and for that wrong the person whose body has been interfered with has a right to claim damages as he can prove he has suffered owing to that interference.
- Held further that physical and emotional pain usually emanates from an assault. The assault perpetrated by the fourth defendant on the plaintiff caused the plaintiff physical and emotional pain and trauma.
- Held further that: In the premises of the evidence led in its totality, the particulars of this case, the nature of the injuries sustained and considering the quantum awarded in comparable cases, the plaintiff should be awarded damages in the amount of N$50 000.
As a result, the first and fourth defendants was ordered to pay the plaintiff, jointly and severally the one paying the other to be absolved, the amount of N$50 000.00, with interest. There was no order as to costs.
Haufiku v The Minister of HAISS (HC-MD-CIV-ACT-OTH-2021-03665) [2022] NAHCMD 689 (19 December 2022)