Edmund Soyizela Mdzinwa had two jobs.
During the week, he was a waiter at a well-known casino. At weekends, he worked as a DJ. Then, in September 2011, a rubber bullet fired by a police officer struck him in the eye.
Fourteen years later, the police are still facing the consequences.
The Western Cape High Court has upheld an award of R1.967 million to Mdzinwa for past and future loss of earnings, dismissing an appeal by the Minister of Police.
The minister had wanted the amount reduced, arguing that the trial court had been too generous when calculating Mdzinwa’s future loss of income.
But the three-judge appeal court disagreed.
At the time of the shooting, Mdzinwa was one of the casino’s top-performing waiters. He worked in the Privé VIP section, where high rollers were among his customers, and could earn between R800 and R2,500 per shift.
He also worked as a DJ. On Fridays, Saturdays and Sundays, he performed at events.
However, the shooting changed both careers. The rubber bullet caused such severe damage to his right eye that he eventually lost it and was fitted with an ocular prosthesis.
But it was not only the missing eye that affected his ability to earn a living.
His psychologist diagnosed him with post-traumatic stress disorder, mild depression and adjustment disorder. Evidence before the court showed that he became increasingly self-conscious about his appearance, anxious, irritable and easily upset.
At the casino, his behaviour changed. Mdzinwa argued with customers. He became moody and emotional, was sometimes late and took long bathroom breaks because he was worried about discharge from the prosthetic eye.
His employer tried to accommodate him. He was moved out of the VIP section and into a lounge area, where he mainly served elderly customers.
The tips, however, were considerably lower.
He eventually resigned in December 2019, about eight years after the shooting.
His DJ career also fell away. The minister argued that losing an eye did not, in itself, prevent Mdzinwa from working as a DJ.
The court’s response was, in effect, that this missed the point.
The psychological consequences of the shooting had changed a man who had once been comfortable working in loud, crowded environments and entertaining people.
His psychologist found that his psychological functioning had been significantly diminished.
The Minister of Police did not call a psychologist to provide a different opinion.
The court did not, however, simply accept everything Mdzinwa said at face value.
The trial judge found that he had exaggerated some parts of his evidence and that there was an element of malingering, although the minister had not pleaded malingering.
However, the appeal court found that much of his account was supported by other evidence, including testimony from colleagues and family members, as well as assessments by industrial psychologists.
Therefore, the award of damages stood, but the court had to decide on the quantum. The court had to calculate not what Mdzinwa had earned, but what he might have earned if the shooting had never happened.
His projected future earnings, prior to the injury, were calculated at R3.33 million.
The trial court applied a 15% contingency to the uninjured scenario and a 45% contingency to the injured scenario. The difference produced a net future loss of R999,210.
The minister argued that the difference should have been 20 percentage points rather than 30.
The appeal court was not persuaded.
Loss of future earnings, it noted, is necessarily uncertain. Trial courts have considerable discretion when making these calculations, and there was no basis for an appeal court to interfere with this one.
The R1.967m award therefore stands.
wendy.jdc@nationalmg.co.za