THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 685/2018
Reportable
In the matter between:
WITZENBERG MUNICIPALITY

APPELLANT
and
MURRAY JOHN MARTIN BRIDGMAN NO

FIRST RESPONDENT
JACK JACOBUS NICOLAAS LOUW

SECOND RESPONDENT
ELSABE CORNELIA ELIZABETH LOUW

THIRD RESPONDENT

Neutral Citation:
Witzenberg Municipality v Bridgman NO & others (685/2018) [2019]
ZASCA 186 (3 December 2019).
Coram:
Navsa, Mbha, Zondi and Van der Merwe JJA and Hughes AJA
Heard:

15 November 2019
Delivered:

3 December 2019
Summary:
Application for reconsideration in terms of s 17(2)(f) of the Superior Courts
Act 10 of 2013 of a refusal of petition decided in terms of s 17(2)(d) of that Act – whether
petition correctly refused – whether reasonable prospects that another court could come
to a different conclusion concerning the negligence of Municipality that operated a resort
at which a resident was raped – whether Municipality ought to have guarded against the
harm that eventuated – whether foreseeable.
Appeal against quantum of award of damages – amount awarded greater than amount
sought – whether amount awarded excessive.

______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Donen AJ sitting
as court of first instance): reported sub nom Bridgman NO v Witzenberg Municipality (J L
& another intervening) 2017 (3) SA 435 (WCC).
1 The application for a reconsideration of the refusal of the application for leave to appeal
is dismissed with costs, including the costs of two counsel where so employed.
2 The appeal against the quantum of the award of damages succeeds to the extent
reflected in the substituted order that appears hereafter.
3 Paragraph 226.1 of the order of the court below is set aside and substituted as follows:
‘The Municipality shall pay damages to the plaintiff in the sum of R630 780, together with
interest thereon from date of judgment.’
4 In respect of the appeal against the quantum of damages no order is made as to costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Navsa JA (Mbha, Zondi and Van der Merwe JJA and Hughes AJA concurring):
[1] This is a reconsideration of a refusal of an application for leave to appeal, referred
to this court in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 (the Act), coupled
with an appeal against the quantum of an award of damages. As will become apparent,
the two are related. The underlying facts in relation to both constitute a terrible tale of
woe, yet demonstrate human resilience. The history of the person at the centre of the
litigation, up until the traumatic event on which the litigation was based, is telescoped in
the paragraphs that follow. For reasons that will become clear, she will be referred to
throughout only as Miss L. The necessary further details leading up to the present appeal
will be dealt with thereafter.

[2] Miss L was born in Bulgaria. Her date of birth is uncertain. It appears that
immediately after her birth her mother gave her up for adoption. Miss L was initially placed
in a children’s home and thereafter transferred to a state-run institution for disabled

children. This was on account of her slow cognitive and neurological development. When
she was approximately five months old she was diagnosed with spastic hemiparesis in
her lower limbs and also suffered from other chronic illnesses. There was little, if any,
hope of significant progress in the development of her human potential. The officials at
the institution did not expect her to live. Then a ray of hope presented itself in the form of
a South African couple, Mr and Mrs L, who were Christian missionaries stationed in Sofia,
Bulgaria’s capital city. They first met her in 1998, visited her regularly and saw in her the
capacity for development. She was later admitted to the State University hospital in Sofia.
At that stage she was in a badly neglected condition, passive and apathetic. Her head
was shaven and her impermanent teeth were all decayed. She had no spontaneity of
movement, could not communicate verbally and could not crawl, roll or perform any
significant movements.

[3] In 1999 Mr and Mrs L were granted permission to transport Miss L to South Africa
on a hospital permit for a year. Here they arranged for her to see a range of professionals.
Mr and Mrs L arranged for the removal of her decayed teeth. She underwent
physiotherapy and attended numerous occupational therapy sessions. Miss L was also
given speech therapy. After months of treatment she began to walk when held by the
hand. She started showing signs of meaningful verbal communication and was able to
draw shapes and colour-in. Miss L returned to Sofia and Mr and Mrs L were given
instructions on how to assist her there to promote her further development.

[4] Mr and Mrs L and Miss L visited South Africa annually and the adults saw to it that
she attended further therapy sessions here. Her development continued and she showed
remarkable progress due, in large part, to the efforts of an early childhood intervention
specialist. Mr and Mrs L formally adopted Miss L in 2001. Before the event that led to the
litigation culminating in these proceedings, Miss L had developed to such an extent that
she was able to play on her own and with other children in the street and parks. She had
developed into a good football player and was beginning to read. Her adoptive parents
had received professional advice that they should promote her independence which, in
turn, they were informed, would build her confidence. It is common cause that Miss L is

mildly intellectually impaired. At the time of the incident in question she had reading and
numeracy skills at about Grade one level and the cognitive level of a seven to eight year
old child.

[5] On 16 January 2009 Miss L, her adoptive parents and their biological daughter
Miss Z, registered and were admitted as residential guests at the Pine Forest Resort,
Ceres (the resort). Miss L was approximately 18 years old at the time. The resort is owned
and controlled by the Witzenberg Municipality (the Municipality), the applicant in the
application for reconsideration and also the appellant in the appeal against quantum. The
Municipality was established in terms of s 12 of the Municipal Structures Act 117 of 1998.
Its area of jurisdiction comprises the small towns of Wolseley, Ceres, Tulbach, Prince
Alfred’s Hamlet and Op die Berg, in the Western Cape Province. Mr and Mrs L had visited
and had been guests at the resort a number of times over the years preceding this last
visit.

[6] On 20 January 2009, which proved to be a fateful day, Miss L asked her adoptive
parents whether she could go out and play on her own in the playground close to their
unit at the resort. She was given permission to do so. This was in line with the advice they
had received that they should encourage her independence. Whilst at the playground she
was forcefully and physically led away by three minors who had gained access to the
resort, aged 15, 14 and 11, respectively, up an external staircase leading to the entrance
of a squash court within the resort, down an internal staircase to the floor of a squash
court where she was brutally sexually assaulted and raped. The squash court formed part
of a recreational hall. It is close to the play area which is equipped with swings, a
trampoline and other equipment. It is also close to a fenced-off swimming pool. One of
the boys apparently kept a lookout while the other two were actively involved in the sexual
assault on her. The attack and its effect on Miss L must be seen against her history,
including her past sensory deprivation by not being held and nurtured as a small child
and her intellectual and emotional impairments. The two boys who actively participated
in the rape were convicted and sentenced accordingly.

[7] Sometime after the attack, a curator ad litem, the first respondent in the present
case, appointed by the Western Cape High Court on 20 December 2011, instituted an
action in that court against the Municipality, claiming damages on Miss L’s behalf  flowing
from the attack on her, on the basis of the negligence of its employees and / or officials.
The following are the relevant parts of the particulars of claim:
‘The sexual assault and rape of [Miss L] was caused by the lack of ordinary care and diligence of
the Defendant and its servants who acted in the course and scope of their employment with the
former and who were negligent in one or more of the following respects:
(a) they failed to employ a competent, reliable and trustworthy security firm at the Resort;
(b) in breach of the Resort’s General Information and Rules referred to in paragraph 5 above, [P]
and [O] were admitted as day visitors to the Resort without advance reservation;
(c) in breach of the Defendant’s General rules for its Resorts and Swimming Pools referred to
paragraph 6 above, [P] and [O] as day visitors were not restricted to the Resort’s allocated area,
which excluded the Resort’s squash courts;
(d) in breach of the Defendant’s By-Law referred to in paragraph 7 above, [P] and [O] were
admitted to the Resort without admission tickets;
(e) in scheduling a meeting at 4 pm on 20th January, 2009 at the City Hall, Ceres which all the
Defendant’s servants at the Resort, with one exception, had to attend;
(f) accordingly after 4 pm on 20th January, 2009 leaving the Resort effectively under the control
of an inadequate, incompetent, unreliable and non-trustworthy security firm, which inter alia failed:
to patrol the Resort; and monitor the movements of [P] and [O] adequately or at all.’
The references to P and O are to two of the three minors who were involved in the attack
on Miss L.

[8] The Municipality defended the action. First, it denied that it owed Miss L a legal
duty to take steps, other than those that were in place at the resort at the time. Second,
in the event that the court held that it ought to have taken certain steps to protect visitors
to the resort, it denied that the failure to take such steps caused the attack and led to the
injuries consequently sustained by Miss L. In addition, the Municipality issued a third party
notice, in terms of which it sought to lay the basis for a claim for a contribution or
indemnification by Mr and Mrs L. The Municipality averred that in the event of judgment
being granted in favour of the first respondent, in his representative capacity, and in the

event of it being ordered to pay damages it would be entitled to claim a contribution from
Mr and Mrs L on the basis that they as her adoptive parents, aware of her mental
disability, were themselves negligent in several respects, namely:
‘The Third Parties, as [Miss L’s] adoptive parents, . . . therefore had a duty of care towards
[Miss L]. The alleged damages were caused by the lack of ordinary care and diligence of the Third
Parties, who at all relevant times were and / or should have been acutely aware of [Miss L’s]
severe mental disability and who were negligent and / or breached their said duty of care in one
or more of the following respects, in that the Third Parties:
Failed to properly supervise [Miss L] while playing alone in the resort;
Failed to exercise reasonable care and / or take adequate steps to prevent ham to [Miss L] when
they could and / or should have done so;
Failed to adequately monitor the movements of [Miss L] at all relevant times prior to, during and
subsequent the alleged assault;
Allowed [Miss L] to stray from their control and / or area of supervision whilst being acutely aware
of her mental disability and consequential vulnerability and / or exploitability;
Failed to avoid the incident where by the exercise of reasonable care and measures, they
could and should have done so.
As a result of the aforesaid facts and circumstances the Third Parties owed to [Miss L] a duty of
care to prevent a foreseeable harm as suffered by her and to take reasonable steps to prevent
inter alia the assault from occurring and / or were negligent in one or more of the respects as
listed in paragraph 9.2.1 – 9.2.5.
In the light of the aforementioned, the Third Parties should be jointly and severally liable with the
Defendant to the Plaintiff, if successful.’

[9] Mr and Mrs L opposed the relief sought against them and denied that they were
negligent as alleged by the Municipality and consequently that they were legally obliged
to make any contribution at all. The matter proceeded to trial with evidence adduced by
all the parties. The court heard, inter alia, the evidence of Mrs L, experts who treated
Miss L before the event in question and who saw her thereafter, and security consultants
who testified in support of the respondents’ case and in support of the Municipality.

[10] The further material parts of the evidence adduced and the relevant common
cause facts are set out hereafter. Very soon after the attack on Miss L, the Mayor and the

Municipality’s manager arrived at the resort. The Mayor expressed his regret at what had
occurred and stated that he was aware of prior security lapses at the resort and that he
was busy with a program that was directed at keeping the youth in Ceres from
participating in criminal conduct.

[11] Ceres Alarms, the security services provider at the resort at the time of the incident
in question, had been appointed on an emergency basis after a predecessor’s contract
had been summarily terminated for poor performance. Ceres Alarms had been appointed
in the absence of a thorough security assessment by the Municipality. The Municipality’s
own internal communications show that there had been an ongoing concern by its officials
about the lack of adequate security at many of its facilities, including the resort. There
had been reported incidents of break-ins at the resort and an incident involving a
complaint of assault after an argument, apparently between two residents. The
Municipality’s own documents show a concern by officials of the threat of some greater
harm than that which had already been experienced. Furthermore, at the time of the
incident the entire municipal staff at the resort, 18 out of 19 staff members, had left the
resort to attend a staff meeting. The remaining member of staff was a cashier. The staff
that attended the meeting away from the resort included, amongst others, the swimming
pool manager and other supervisory staff.

[12] The number of security guards employed by Ceres Alarms in attendance at the
resort at the time of the incident was limited to two, in the face of the Municipality’s own
stated technical requirements that at least four guards were required, with at least two
needed to patrol the grounds within the resort on an hourly basis. Statements made by
employees of Ceres Alarms were referred to, in which they appreciated that four guards
were necessary as part of a security detail at the resort and they themselves were puzzled
that they had been left with half that number.

[13] Moreover, the evidence on behalf of the first respondent that squash courts were
locations of choice for wrongdoing was uncontested. A lock or supervised access to the
squash court was obviously what was called for. That was lacking. No evidence was

tendered on behalf of the Municipality that there were budgetary constraints in relation to
any one of the aspects set out in this and the preceding paragraph. It is necessary to
record that the following appears at the foot of a printed document containing the resort’s
‘general information and rules’:
‘Please take note that the resort gates will close at 23:00 and reopen at 07:00 to ensure the safety
and good order in the resort. Security staff will concentrate on patrolling . . . .’

[14] In relation to the damages sustained by Miss L, her history set out above, and the
evidence adduced at the trial, described in this and the paragraphs that follow, are
material. Mrs L testified that when she approached the squash court in search of Miss L,
after she had noticed that she was no longer in the playground, she heard her crying,
pleading with the boys to stop. She saw the boys flee after being alerted of her presence.
Soon thereafter, Miss L came towards Mrs L, pulling up her panties, repeatedly saying
the words: ‘It’s very bad’. Her underwear and pants were blood-stained. She was later
seen by a doctor who examined her. DNA linked to one of the boys who was part of the
assault on her was discovered on her body. Curiously and infuriatingly for Mr and Mrs L,
and insensitively, the Municipality waited until the trial had been conducted for a few days
before an admission was made that Miss L had been raped.

[15] When her adoptive parents arranged for Miss L to see a gynaecologist,
approximately two weeks after the incident, she was still in an obviously traumatised state
and did not want to be touched or have her clothes removed and the examination could
only be conducted under general anaesthetic. The gynaecologist detected three tears in
her vaginal area, with the largest still bleeding.

[16] Clearly influenced by her Christian upbringing, Miss L informed her adoptive
mother that she had experienced the assault on her as one of being ‘crossed’, which in
all probability was a reference to the Crucifixion. This was seen by the court below as an
important feature in assessing the pain and suffering that she had endured. She had
explained to her adoptive mother how she was taken by the arm by the three boys and
pulled away from the trampoline and despite struggling to get away she was taken to the

squash courts with her hands behind her back and a hand over her mouth. The court
below also took into account the sensory neglect Miss L had endured over her formative
years and that she was thus extremely sensitive to touch.

[17] The court below, understandably, admitted the evidence of the reports by Miss L
to others, supported by the objective evidence and the evidence of others, thus avoiding
the trauma for Miss L of reliving her ordeal in court.

[18] Mrs L testified about how Miss L, upon her return to Bulgaria after her ordeal,
showed a marked change. She became afraid of teenage boys and there was regression
in her development. She demonstrated an aversion to playing outside and her home
education program suffered a setback. It is quite clear on the evidence adduced that
Miss L was set back by a year in her cognitive and emotional development because of
the brutal attack on her.

[19] It is also apparent that as a result of the attack on her Miss L suffered from Post-
Traumatic Stress Disorder (PTSD) for an extended period of three years. At the time of
and following upon the attack on her, Miss L suffered acute shock and stress. Thereafter
she re-experienced the traumatic event in the form of recurring intrusive nightmares or
intense emotional or psychological reactions to reminders of the event. She withdrew
socially and had difficulty concentrating. She had difficulty sleeping, showed poor
tolerance of stress and was hyper-vigilant. Miss L regressed in her language skills and
soiled herself for a while. She was generally anxious and reluctant to separate from her
parents. By the time of the trial in the court below, approximately seven years after the
incident, she still had residual symptoms of PTSD. She still displayed distressing
symptoms and still occasionally suffered nightmares and continued to experience
problems in concentration. She had, however, recovered a degree of confidence and was
once again making headway with an assertion of independence. Simply put, she is on the
mend, which is a tribute to her fortitude and demonstrates a triumph of the human spirit.

[20] The judgment of the court below is reported sub nom Bridgman NO v Witzenberg
Municipality (J L & another intervening) 2017 (3) SA 435 (WCC). It is 66 pages long and
comprises 226 paragraphs. For present purposes, I will refer succinctly to the material
parts.

[21] The court below held the Municipality liable for the damages sustained by Miss L.
It rejected the claim for an indemnification or a contribution by Mr and Mrs L. The following
order was made:
‘The Municipality shall pay damages to the plaintiff in the amount of R780 780, together with
interest thereon from date of judgment;
The Municipality shall also pay plaintiff’s costs of suit, including the costs of the rule 21(4)
application which stood over for later determination; such costs to include the costs incurred in
the employment of two counsel.
The Municipality shall also pay the third parties’ costs of suit.’
An application for leave to appeal against the merits was refused by the court below. It
did, however, grant leave in relation to the amount of damages awarded to Miss L. An
application for leave to appeal against the decision of the court below on the merits, in
terms of s 17(2)(b) of the Act, was made to this court. That was refused. The Municipality
then applied in terms of s 17(2)(f) for a reconsideration of that decision, which was
referred to this court for hearing. It is that referral and the appeal against the amount of
damages awarded to Miss L that are presently before us. It is to a consideration of those
two matters that I now turn.

[22] Right at the outset of his judgment, Donen AJ recorded that it was the duty of the
State to address the conditions that enable and continue to underlie gender-based
violence. He referred to the constitutional rights to dignity and equality and to International
Law. He also had regard to the United Nation’s Convention on the Rights of People with
Disabilities. In para 4 of the judgment, after recording that Miss L was raped on 20 January
2009 at the resort, which was owned, managed and controlled by the Municipality, part
of the State and therefore bound to respect and promote Miss L’s constitutional rights, he
held as follows in relation to wrongfulness:

‘Because of its constitutional duties, and because it owned, managed and controlled the resort in
the circumstances described further below, the failure on the part of the Municipality to prevent
the rape was unlawful.’1

[23] Donen AJ then went on to consider whether the Municipality owed Miss L a legal
duty to have taken certain steps which would have prevented the attack on her and
whether it negligently failed to do so. The court below had regard to the well-known test
for negligence, formulated in Kruger v Coetzee 1966 (2) SA 428 (A) at 430:
‘(a) a diligens paterfamilias in the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such occurrences; and
(b) the defendant failed to take such steps.
This had been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes
overlooked. Whether a diligens paterfamilias in the position of the person concerned would take
any guarding steps at all and, if so, what steps would be reasonable, must always depend upon
the particular circumstances of each case.’

[24] In essence, the court held that if there had been four guards in total with two guards
doing hourly patrols and if the rest of the staff at the resort had been in place and if there
had been proper access controls in relation to the squash court and more visible and
pronounced access control, the opportunity for wrong-doing would have diminished and
it was more likely than not that the rape would not have occurred. It had occurred because
of the failure of the Municipality to take the steps outlined above. Moreover, in light of
previous experiences, there ought to have been a greater awareness by the security
service and the employees of the possibility of criminal conduct. Harm eventuating, in the
absence of these measures, would have been foreseeable, particularly in the light of prior
criminal conduct experienced at the resort coupled with municipal officials expressing
concerns that criminal behaviour of a kind eclipsing those hitherto perpetrated might
materialise. The court below concluded that the Municipality was negligent and liable to
Miss L for the damages sustained by her.

1 Bridgman NO v Witzenberg Municipality (J L & another intervening) 2017 (3) SA 435 (WCC) at 440E-F.

[25] The submission on behalf of the Municipality, in relation to negligence, that harm
specifically in the form of a rape could not have been foreseen by it, is misconceived. The
precise nature of the harm need not be foreseen. The general nature of serious criminal
conduct with attendant consequences is what ought to have been foreseen. In the present
circumstances it ought to have been foreseen.2

[26] It was submitted on behalf of the Municipality that in holding that it was negligent,
the court below placed too great an emphasis on the fact that it was part of the State. This
submission, too, is fallacious. Even if one were to have considered whether liability based
on negligence should attach to a private resort owner against the circumstances set out
in paras 10-13 above, the same result would have ensued, namely, that the resort owner
would have been held to be negligent. That conclusion becomes even more compelling
if regard is had to the Municipality as part of the State. It was accepted on behalf of the
Municipality that this factor is one to be taken into account. An organ of state is expected
to ‘take reasonable measures to advance the realisation of the rights in the Bill of Rights’
and the availability of resources is an important factor when determining what steps were
available to the organ of state and whether reasonable steps were in fact taken. It is
therefore necessary for the organ of state to present information to the court so that it can
assess the reasonableness of the conduct in proper context. 3 As stated above, no
reliance was placed by the Municipality on budgetary constraints.

[27] It was contended on behalf of the Municipality, in relation to wrongfulness, that
holding it liable would result in limitless liability and would place an intolerable burden on
local authorities. In the circumstances outlined above and considering constitutional
norms, that contention is entirely without substance.

2 See N Neethling and J M Potgieter Law of Delict 7 ed (2015) at 149; Standard Chartered Bank of Canada
v Nedperm Bank Ltd 1994 (4) SA 747 (A) and the other authorities there cited. See also J R Midgley ‘Delict’
15 Lawsa 3 ed at 341 and the authorities there cited.
3 See Lawsa fn 2 at 313.

[28] The court below also held that no fault could be attributed to Miss L’s adoptive
parents in allowing her to play on her own in the play area in the resort. In this regard the
court below, inter alia, considered her right to freedom of movement, her right to dignity
which includes her right to assert her independence and the rights of disabled persons,
recognised in international conventions. I find the attitude of the Municipality in this regard
both baffling and disturbing. As stated in para 13 above, it gave comfort to residents that
the Municipality was serious about security at the resort and that security staff would pay
attention to patrolling the area. In running the resort, the Municipality bore a duty to take
appropriate steps to safeguard to the best of its ability the safety of visitors and residents.
This it did not do. In the circumstances referred to, it was adding insult to injury to attempt
to land Mr and Mrs L with liability.

[29] In light of the findings set out above it follows that our colleagues who considered
the application for leave to appeal in terms of s 17(2)(b) of the Act cannot be faulted for
their conclusion that, on the merits, there were no reasonable prospects that another court
would come to a different conclusion. The application for reconsideration therefore must
fail.

[30] I turn now to deal with the appeal in relation to the quantum of damages, principally
in relation to the question of whether the amount of R750 000 awarded for contumelia,
shock, pain and suffering and loss of amenities of life was excessive. The court below
had regard to the evidence set out in paragraphs 9-15 above. It considered it an
aggravating factor that the Municipality delayed in admitting that the rape had occurred,
raising the necessity of Miss L having to testify in the face of a professional warning that
it would be traumatic for her to do so.

[31] The court below had regard to previous awards approximating the circumstances
of the present case. It had regard to F v Minister of Safety and Security & another 2014
(6) SA 449 (WCC) in which a 13 year old girl was assaulted and raped by a policemen
after he had offered her a lift home in a police vehicle. She had, in addition, been
otherwise severely physically assaulted. As a result of the attack on her she suffered

PTSD and depression. She had been awarded an amount of R300 000 for contumelia
and R200 000 for pain and suffering.

[32] Donen AJ went on to refer to the unreported judgment in Nogqala v Minister of
Safety and Security ECG Case Number: 676/2011, delivered on 18 June 2012, in which
a 22 year old woman was raped by a policeman in an office. She was awarded R225 000
in respect of damages for contumelia and R150 0000 pain and suffering. He also had
regard to M v Minister of Safety and Security 2015 (2) SACR 28 (ECG) where a plaintiff,
aged 25, was unlawfully arrested and detained by two police officials, and assaulted and
raped by a police officer whilst she was in detention. A court awarded R425 000 in respect
of contumelia in 2014. The court below took into account that the present day value of
that award was R451 765.

[33] Before us it was contended on behalf of the Municipality that the amount of
R750 000, awarded globularly by the court below was excessive. This was all the more
apparent, so it was submitted, if one compares it to prior awards. It was pointed out that
during final submissions in the court below, on behalf of the curator ad litem the maximum
sought on behalf of Miss L was a total of R600 000. Before us counsel on behalf of the
curator and Mr and Mrs L admitted that they were surprised when the amount awarded
exceeded the amount sought.

[34] The trauma Miss L was subjected to, was horrific. She continues to endure the
consequences of the brutal attack on her. The degree of pain, suffering, anxiety and loss
of confidence she experienced was severe. Prior awards are useful but one will seldom,
if ever, find a case on all fours with the one under consideration. However, the amount
awarded is rather high. This is all the more so since it was not sought. In the light of all
the circumstances the amount sought, namely, R600 000 appears to be fair and just. That
being said we were concerned, in the event of a finding in favour of the Municipality on
this aspect, that the curator should not be burdened with an adverse costs order.
Fortunately the Municipality was prevailed upon, to consider, particularly in light of their
prior conduct in the litigation to forego a costs order. The parties ultimately agreed that

there should be no order as to costs in respect of the appeal against the quantum of
damages in the event of a finding in favour of the Municipality. A final aspect requires
brief attention. The submission concerning the costs of the therapy sessions for Miss L’s
adoptive parents, namely that they should not have been awarded since they were not
litigants in their own name, also falls to be rejected. The therapy sessions will not only
benefit them but will ultimately have a beneficial impact on Miss L. The total amount
awarded by the court below and the amount in the substituted order set out hereafter,
includes the cost of those sessions.

[35] The following order is made:
1 The application for a reconsideration of the refusal of the application for leave to appeal
is dismissed with costs, including the costs of two counsel where so employed.
2 The appeal against the quantum of the award of damages succeeds to the extent
reflected in the substituted order that appears hereafter.
3 Paragraph 226.1 of the order of the court below is set aside and substituted as follows:
‘The Municipality shall pay damages to the plaintiff in the sum of R630 780, together with
interest thereon from date of judgment.’
4 In respect of the appeal against the quantum of damages no order is made as to costs.'

____________________
MS NAVSA
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

A De Villiers (with him L Wade)

Instructed by:

Regan Brown Inc, Cape Town

Lovius Block Attorneys, Bloemfontein
FOR RESPONDENTS:
J B Whitehead SC (with him S e Câmara)

Instructed by

Joubert van Vuuren Inc, Ceres

Symington & De Kok Inc, Bloemfontein