HIGH COURT OF SWAZILAND
Case No. 693/95
MAPHALALA - J
the Plaintiff MR. Z. MAGAGULA
the Defendants IN ABSENTIA
is a long-suffering matter which has come before me for default
judgement. The plaintiff issued his summons on the 10th April 1994,
being represented by the late attorney D. Lukhele. The defendants
duly filed their notice of intention to defend on the 20th April
1995, being represented by attorney Dominic Mngomezulu who has since
died. The defendants requested for further particulars on the 20th
April 1995, and they subsequently filed their plea on the 25th July
years later on the 1st March 2002, the plaintiff now represented by
the offices of Zonke Magagula & Company filed a notice of
application in terms of Rule 16 for an order striking off defendants'
plea on the grounds that defendants have failed to comply with the
court order granted on the 8th February 2002; that judgment was
entered in favour of plaintiff in terms of the summons; and costs of
the application. The order of the 8th February 2002 was for
compelling the defendants to make discovery within seven (7) days
from date of grant of the order.
application in terms of Rule 16 appeared before my Brother Masuku J
on the 15th March 2002, where he granted prayer 1 and 2 viz, striking
off defendants' plea on the grounds that defendants have failed to
comply with the court order granted on the 8th February 2002 and in
respect to prayer 2 ordered that viva voce evidence be led to prove
the quatum of damages.
this action is based on an illiquid claim I heard the evidence of the
plaintiff on the 5th June 2002 and submissions by his attorney. I
reserved judgement today the 20th June 2002. Following is the
to the summons the plaintiff and the defendants are residents of
Kashoba, Lubombo district. The 1st defendant is Chief Sibengwane
Ndzimandze. The other defendants are all adult Swazi males under the
chiefdom of the 1st defendant.
plaintiff alleges in his particulars of claim that on or about the
15th April 1994, the first defendant wrongfully and unlawfully
instigated, incited, procured and counselled the other defendants to
assault and/or kill him. The 2nd, 3rd, 4th, 5th, 6th, 7th
defendants, acting on the said instigation, incitement and/or
counsel, wrongfully and maliciously assaulted him on or about the
15th April 1994.
a result of the said assault, the plaintiff has suffered and
continues to suffer the following damages:
775-00 a year being the net income he used to get from letting his
400-00 a year being the net income he used to get from the sale of
bales of cotton;
200-00 a year being hospital and medical expenses; and
000-00 being permanent disabilities, pain and suffering.
plaintiff prays for judgement against the defendants for:
of the sum of E24, 775-00 a year as loss of income from tractor hire;
of the sum of E22, 400-00 a year as a loss of income from cotton;
of the sum of E7, 200-00 a year as hospital and medical expenses;
of the sum of E50, 000-00 as general damages;
on (a), (b), (c) and (d) from date of service of summons to date of
of suit, and;
or alternative relief.
plaintiff has filed an affidavit in proof of damages and has also
gave viva voce evidence before me. He deposed that on or about the
15th April 1994, the first defendant wrongfully and unlawfully
instigated, incited and procured the other defendants to assault him.
The 2nd, 3rd, 4th, 5th, 6th, 7th and 8th defendants acting on the
said instigation, incitement wrongfully and maliciously assaulted
him. He had not provoked the 1st defendant nor any of the other
defendants and that he never consented to being assaulted. He was
assaulted with sticks and knobkerries all over the body and was
severely injured at the back of his head. These injuries are detailed
in annexure "SD1" being a copy of Dr Rebi George's report
who examined and treated him at the Good Shepherd Hospital.
the assault he was hospitalised at the Good Shepherd Hospital in
Siteki for a month and after being discharged from the hospital he
remained an out-patient and had to consult the doctor twice a week.
deposed further that as a result of the assault he now suffers from
severe epileptic fits which attack him at any time and as such he is
unable to engage in any gainful employment or to cultivate his
fields. Before the defendants assaulted him, he was engaged in both
subsistence and small-scale commercial farming, growing maize for his
family and cotton which he sold to Clark Cotton. He is now unable to
grow either maize or cotton. He also owned a tractor which he used to
plough his fields and to hire out to his neighbours' for a fee. From
the sale of cotton he earned approximately E22, 400-00 per year
before deducting expenses. From the lease of the tractor he . earned
approximately E24, 775-00 per year. Since the assault, to date, he
has spent approximately E50, 000-00 in hospital expenses.
a result of defendants' unlawful conduct, he has suffered damages in
the sum of E147, 575-00.
the evidence of the plaintiff it has been proved that the defendants
unlawfully assaulted the plaintiff on the day in question. What
remains for the court to determine is the quatum of damages.
appears to me from the evidence that the plaintiff has clearly proved
(a), (b), (c) of the particulars of claim, viz E24, 775-00 for loss
of income from tractor hire; E22, 400-00 for loss of income from
cotton and E50, 400-00 as hospital and medical expenses. I must say
though that there is a discrepancy between the figure given under (c)
in the particulars of claim and (iii) in the affidavit in proof of
damages. This head is for hospital and medical expenses. In the
summons the sum sought is E7, 200-00 whilst in the affidavit the sum
claimed is E50, 400-00. The plaintiff himself in his viva voce
testimony claims a sum of E50, 400-00 under this head. Mr. Magagula
further contended in his submissions that the summons were issued in
1995 whereas the plaintiff has expended more than the E7, 200-00 from
1995 to date. I accept this figure as there is, however, no reason to
reject the Plaintiff's unchallenged evidence that his past medical
expenses amount to the sum of E50, 400-00.
remains problematic is the measure of damages under pain and
suffering, loss of amenities of life for the sum of E50, 000-00. In
such cases, all the circumstances of
case indicating the magnitude of the individual Plaintiff's suffering
- the intensity and the duration of his pain, the degree of
deprivation of life's pleasures and amenities, must be taken into
account in determining the measure of damages under pain and
suffering. Schreiner JA in Sigournay vs Gillbanks 1960 (2) S.A. 552
at 572 pointed out that no one can say how much a particular injury
is worth. Yet the essential arbitrariness of an award is tempered by
two objective consideration that act as a framework for assessment.
collective judicial consciousness of a particular country harbours a
notion of scale of compensation appropriate to the socio economic
status of that country; and
this scale, justice requires that like injuries receive like
compensation. This implies that regard should had to previous awards
in similar cases (with due allowance for the declining value of
money) to maintain continuity.
casu, the plaintiff suffered a grave assault as described by the
doctor who examined and treated him in his report dated 28' June
1994, which reads in part as follows, I quote:
Shadrack Dlamini was admitted at Good Shepherd Hospital, Siteki on
the 14th April 1994, after being alleged to have been assaulted.
admission he was found to have right- sided hemiplegia with a
depressed fracture on the left temporal bone and injury to left ear.
He was operated on the same day to relieve the compursion on the
brain due to the depressed fracture of the skull and for suturing of
the injury to the ear. Later his condition improved considerably
leaving right sided hemiparesis, which is likely to be permanent..."
a result of the assault he now suffers from epileptic fits and cannot
fend for his family's need as before. It is my considered view, that
the plaintiff has proved pain and suffering and I would hold that the
appropriate measure of damages which would assuage his hurt would be
the result, I make the following awards:
defendants are ordered to pay a sum of E127, 575-00 jointly and
severally, the one paying the others to be absolved made up as
of the sum of E24, 775-00 as loss of income from tractor hire;
of the sum of E22,400-00 as loss of income from cotton;
of E30, 000-00 as general damages;
of E50, 400-00 as hospital and medical expenses.
Interest at the rate of 9% per annum a tempore morae.