Sharon Hofisi Legal Letters
To anyone who understands the thought and spirit of the Constitution, on which constitutional rights such as personal liberty, dignity and security are based, nothing is more significant than the way in which these rights are framed and have come to stand for what so many people would simply call “the benefits of individual sovereignty”.
Our national courts are obliged in terms of the Constitution to ensure that justice is effectively and promptly accessed by all citizens. Lady Justice may be presented as blind but at all material times she is depicted as having very sophisticated listening devices.
When someone’s person is injured by private persons or public office functionaries, he or she can approach the national courts to seek redress. The courts can exercise their jurisdiction in the matter and may decide to award the injured party what are known as damages – which can either be general or special.
Need it be mentioned that damages have to be quantified on an estimative basis. The court determining the matter can exercise its jurisdiction but usually follows certain criteria on the quantification of damages. By jurisdiction it is simply means the power vested in a court by law to adjudicate upon, determine and dispose of a matter (Pistorius, 1993: 1).
An individual may be injured in an accident that involves a vehicle or some other forms of machinery. Alternatively, injuries may be occasioned by the commission of an assault on the person of the complainant.
In contractual breaches, the injured party is compensated, not for the loss incurred but for the possible gains from the contract had it been that the parties had properly fulfilled their contractual obligations.
There is still to be seen instances where our courts award damages for constitutional breaches other than those where the injured parties claim damages for unlawful arrest, or malicious prosecution using the right to liberty and dignity as protected by the Constitution.
Although a plethora of cases exists in South Africa where citizens institute claims for constitutional breaches (Fose v Minister of Safety and Security, Minister of Police v Mboweni, etc.), the Goussard case illustrates instances where courts may resort to meanings and intention of the legislature to invoke the doctrine of constitutional avoidance.
In 2012, in the case involving Peter Goussard and Impala Platinum Limited, the applicant sued for constitutional damages arising from a breach of contract.
The claim was dismissed on the basis that the applicant could not avoid dispute resolution mechanisms provided for in the Labour Relations Act (LRA) of 1995 by alleging a violation of a constitutional right in the Bill of Rights.
The Johannesburg Labour Court found that a labour dispute in terms of the LRA should not be labelled a violation of constitutional rights simply because the issues raised could also support the conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.
In some instances, Zimbabwean courts have also refused to exercise their jurisdiction in certain matters. In Makoni v The Cold Chain (Pvt) Limited, t/a Sea Harvest, HH197/15, Chigumba J, dealing with the question of currency nominalism also dealt with the issue on whether courts are courts of law or of justice.
Because courts apply the law in the interests of fairness and justice, the learned judge made a finding that in a case where “accident damages” were assessed and awarded as special damages and general damages, under the law of delict, the court could not “convert” a 2008 judgment made in Zimbabwe currency, to United States dollars. There was no factual or legal basis that was laid before the court to engage in that exercise.
The court may also act in the interests of justice in damages cases by refusing to grant punitive costs against the losing party. Again the Makoni case cited above is instructive. Justice Chigumba simply dismissed the application but chose not to exercise her discretion to grant punitive costs.
Under general damages, victims of assault are obliged to itemise general damages claimed and particularise any claim what is called contumelia. They must lead evidence on it as was laid down in the M’pangabuwe case, HH-11-91.
In that case, a middle-aged hospital employee was severely assaulted with pipes, ropes and hands by members of the CID (sometimes one needs to state whether open hands or clenched fists were used). The assaults took place on four occasions over a week- end.
The assault aggravated his existing hearing problems and he sustained facial and foot injuries. The itemised claims saw him being awarded: (i) $1 500 for pain and suffering at the time and for the permanent injury to his foot; (ii) $4 000 for aggravation of his hearing disability and continuing pain and infection in his ear; (iii) $1 500 for contumelia for the humiliation, discomfort and the considerable fear that caused a respectable man to admit a crime he had not committed.
For accident damages, injured parties need to know that jurisdiction of a court under the common law also includes the public power of deciding cases, both civil and criminal. Traffic offences are usually first decided in criminal courts. The injured party may then approach a civil court to sue the offending party for damages.
One reason for the need to understand the importance of an award of damages is steeped in the need to develop the constitutional jurisprudence on entrenched rights.
That is why I have to give scoping viewpoints on some cases that have been decided by our courts of law to provide guidelines on the assessment of damages. For starters, an understanding of the broad principles governing the assessment of damages for personal injury cannot escape scrutiny.
In the case of Minister of Defence and Another v Jackson 1990 (2) ZLR (1) SC, seven salient points are noticeable. These points are still relevant today by way of judicial precedent. Firstly, damages are not a penalty but compensation. Put simply, both the prosecutor, acting on behalf of the complainant, and the complainant must be alive to this fact.
Secondly, compensation must be assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act that caused him the injury had not been committed. Put simply, although the award of damages is not punitive in nature, the court is obliged to ensure that the award is largely victim-centred.
Thirdly, the quantum of compensation for pain and suffering can be determined only by the broadest general considerations. Here the need for cooperation amongst the important stakeholders in the justice delivery system becomes loudly clear. For instance, the pain can be estimated using medical evidence.
It is important for the complainant, or his relatives, to understand that he has to approach the Zimbabwe Republic Police to lodge a complaint. Particulars of the negligence of the faulty party may be considered together with the medical affidavit on the extent of the injuries on the complainant.
Such expenses like transport, the purchase of chemicals and so on must be clearly laid out in the claims. The prosecutor and the complainant should therefore work in consultation with each other in this regard. Terse medical affidavits are discouraged as they do not provide a cogent basis for the quantification of damages.
Fourthly, the court must heed the effect its decision may have upon the course of awards in the future. Because courts set what at law is called judicial precedent, the awards must not be impulsive and vindictive. The court may consider factors such as the possibility of permanent disability to arrive at a reasonable conclusion.
The importance of this consideration is that previously determined decisions may not necessarily be the determining factor in subsequent cases. Courts still have to be satisfied as to whether they can exercise their discretion in a manner that tilts in favour of high awards. The injured party must also show that the authorities that are relied upon are relevant to his or her claim.
Still, a judge or magistrate is left with the discretion to fairly, and reasonably assess the quantum of damages on a case-by-case basis. The inquiry is not speculative, and must be evidentiary-based so as to inform judges in future cases on how to deal with certain types of injuries.
Interestingly, litigants who sue for damages need to understand that the quantum involves some mathematical calculations, though largely estimated. Although ‘common sense is not “common” as the adage goes, mathematical calculations proceed from a common sense approach.
Important issues have to be laid bare before the court: (i) the income of the faulty part; (ii) the expenses that were incurred by the injured party in terms of transport, medication and other incidentals; (iii) knowledge of the prescribed rate of interest; and (iii) future medical expenses if such information is available.
The injured party must always strive to lay before the court such information as a matter of probable or likely expenses. The anticipated medical expenses may be obtained from the possible actions that are shown on the medical documents.
The case of Muchechetere and Anor v Boka and Another, HH-148-89 is instructive in this regard. In that case a boy under seven years old was the first plaintiff. He had been knocked down by a car; and had a 10 percent external rotation in the right femur and was likely to suffer a permanent disability of 8 percent.
As a result, general damages of a reasonably high amount were awarded – $6 000 to be precise – on the basis of the possibility of permanent disability. Although the boy could, by the time of hearing, run as fast as he used to do before he was injured, the court was guided by the crucial information that was placed before it to the fact that the boy had been in severe pain for 73 days.
Fifthly, the court considers the fall in the value of money, particularly its purchasing power. The courts are still enjoined to make sure that they do not consider this fact with such an adherence to mathematics as this may lead to an unreasonable result.
The basis of a sharp fall in the value has to be justified. This takes us to the sixth point; that no regard is to be had to the subjective value of money to the injured person, since the award cannot vary according to whether he is rich or poor.
Lastly, awards of damages must reflect the state of developments and economic conditions of the country and should tend towards conservatism. However, the Constitution now places an obligation on superior courts of law, the High, Supreme and Constitutional courts, to develop the common law and regulate their own processes, it is argued in this think piece that awards made by English and South African courts can provide an appropriate guide in this regard since Zimbabwe’s common law was shaped by developments in those countries.
Because the common law is virile in its growth, judges in superior courts must be seen to be developing the common law in light of the definitions advanced by Professor Lovemore Madhuku which include English positions, and strictly Zimbabwean common law.
For starters, old English cases as part of the common law provide us with a wealth of information on how judges used to use their common sense in resolving disputes. Zimbabwe was at one time a colony of Great Britain.
Fast track the judicial clock to the years between 1980 and 2013 in Zimbabwe, the year 1891 became relevant and one understands that the Lancaster House Constitution allowed courts to use the law that was in force in South Africa at that time. That law was Roman Dutch with some heavy English influence especially in merchant law.
2013 heralded a new epoch in the history of constitutional rights in Zimbabwe. The Constitution also provides for compensation in the event of constitutional breaches. Litigants must couch their lawsuits in a manner that clearly address claims for constitutional breaches.
Sharon Hofisi is a lawyer. He writes in his own capacity. Feedback; [email protected]