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[2014] ZAGPJHC 397
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Oxley v Geberit Southern Africa (05023/14) [2014] ZAGPJHC 397 (8 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION)
CASE
NO: 05023/14
DATE:
08 AUGUST 2014
In the matter between:
LINDY
OXLEY
..........................................................
Plaintiff
And
GEBERIT SOUTHERN AFRICA
........................
Defendant
JUDGMENT
FRANCIS J
Introduction
1. The plaintiff instituted an action for damages for
R3 054 682.50 against the defendant Geberit Southern Africa
for
wrongful and malicious prosecution. It is alleged in the
particulars of claim that the plaintiff was arrested at her place
of
her employment in the presence of several co-employees, without a
warrant on a charge of theft by members of the South African
Police.
She was thereafter formally charged with such offence and prosecuted
in the Wynberg Regional Court. She remained
in custody on 6 May
2013 and on 7 May 2013 she was released on bail. On 4 October
2013 the prosecution against her was terminated
when the matter was
struck from the criminal court roll in the Wynberg Regional Court.
The background facts
2. The plaintiff pleaded that her arrest
occurred after employees of the defendant wrongfully and maliciously
set the law in motion
by laying a false charge, wrongfully 2.
and negligently, instigating and setting the law in
motion by laying such charge against the plaintiff, giving false
information,
alternatively, unreliable information, implicating the
plaintiff in the commission of the alleged offence.
Alternatively,
such employee/s initiated and instigated the said
charge without reasonable and/or probable cause. At all
material times,
the said employee/s were employed by the defendant,
and were acting within the course and scope of his/her/their
employment with
the defendant.
3. The defendant has delivered exceptions to
the plaintiff’s particulars of claim in terms of rule 23(1) of
the Uniform Court
Rules (the Rules) on the basis that they are vague
and embarrassing. In the fourth exception, the defendant pleads
that the
particulars of
claim lack the
necessary averments to sustain a cause of action based on malicious
prosecution in that she has failed to plead
that she was either acquitted or that
a
nolle prosequi
certificate was issued.
4. The exceptions were set down for a hearing on 31
July 2014. The plaintiff caused a notice to amend to be filed
which dealt
with some of the complaints raised in the exception.
The defendant is only persisting with two exceptions.
The relevant principles
5. It is a basic principle that particulars of claim
should be so phrased that a defendant may reasonably and fairly be
required
to plead thereto. This must be seen against the
background of the abolition of requests for further particulars of
pleading
and the further requirement that the object of pleadings is
to enable each side to come to trial
3.
prepared to meet the case of the other and not be
taken by surprise. Pleadings must therefore be lucid and
logical and in
an intelligible form; and the cause of action or
defence must appear clearly from the factual allegations made.
6. The whole purpose of pleadings is to bring clearly
to the notice of the Court and the parties to an action the issues
upon which
reliance is to be placed and this fundamental principle
can only be achieved when each party states his case with precision.
7. A party may except to a pleading on the grounds
that it is vague and embarrassing. Where an exception to a
pleading is
brought on the ground that it is vague and embarrassing,
it involves a two-fold consideration, the first being whether the
pleading
lacks particularity to the extent that it is vague and the
second whether the vagueness causes embarrassment of such a nature
that
one is prejudiced. This prejudice lies in the excipient’s
inability properly to prepare to meet the opponent’s
case.
8. Where a pleading lacks particularity, it is either
meaningless or capable of more than one meaning or can be read in any
one
of a number of ways. Where a court upholds an exception
which alleges that the pleading is vague and embarrassing, leave to
amend is generally granted to the party which produced the excipiable
pleading.
9.
The approach to be adopted where a matter involves a complaint that a
pleading
is vague or embarrassing and hence is excipiable or is in
non-compliance with rule 18(4)
4.
was identified in
Jowell v Bramwell – Jones
& Others
1998(1) SA 836 (W) at 905 H – I as follows:
9.1
the question must firstly be asked whether the exception goes to the
heart of the claim,
and
9.2
if so, whether it is vague and embarrassing to the extent that the
defendant does not know
the claim he has to meet, and
9.3
should he find that an exception on any ground fails, to then
ascertain in the second place
whether the particulars identified by
the defendant are strictly necessary in order to plead and, if so,
whether the material facts
are unequivocally set out.
10. The purpose of an exception that a pleading does
not disclose a cause of action is to dispose of the case, as pleaded,
in whole
or in part. In order to disclose a cause of action, a
pleading must set out every fact (material fact) which it would be
necessary for the party to prove, if traversed, in order to support
his right to judgment of the court. A pleading which fails
to
meet this standard is therefore excipiable. The excipient has the
duty to persuade the court that upon every interpretation
which the
pleading can reasonable bear, no cause of action is disclosed.
The first exception
11. The plaintiff has pleaded the following in
paragraph 9 and 10 of her particulars of claim:
“
9. As a result of the
aforementioned wrongful and unlawful conduct the Plaintiff has
suffered damages in the following amounts:-
9.1
R54 682.50 being the costs reasonably expended by the Plaintiff
in defending
5.
herself
against the aforesaid charge;
9.2
R270 000.00 being loss of income to date;
9.3
R750 000.00 being loss of employment prospects;
9.4
R1 980 000.00 being damages for contumelia, deprivation of
freedom, and discomfort
suffered by the plaintiff as result of her
arrest and detention, and prosecution as aforementioned.
R 3054
682.50 TOTAL
10.
On the 25
th
of November 2013, the Plaintiff made written
demand to the Defendant claiming such damages. A copy of such
letter dated 25
th
November 2013 is annexed marked annexure
“B”.”
12. The defendant contended that the damages referred
to in paragraph 10 of the particulars of claim are those damages
referred
to in paragraph 9 of the Plaintiff’s Particulars of
Claim. It is clear from paragraph 4 of Annexure “B”
of the particulars of claim that the plaintiff made demand on the
defendant in the amounts of R56 682.50 being the costs
reasonably expended by the plaintiff in defending herself against the
criminal proceedings; and R3 500 000.00 being damages
for
contumelia,
deprivation of freedom and discomfort suffered by
the plaintiff. No demand and/or an incorrect demand was made
for the amounts
as pleaded by plaintiff in paragraph 9.2 and 9.3 of
the particulars of claim. Moreover, paragraph 4.2 of Annexure
“B”
is a demand by the plaintiff for payment from the
defendant in the amount of R3 500 000.00 in respect of
contumelia
, deprivation of freedom and discomfort
suffered by the plaintiff, albeit that the
plaintiff claims R1 980 000.00 in paragraph
9.4 of the particulars of claim. It was
contended that the plaintiff pleads contradictory allegations.
13. The complaint in the first exception is that the
amounts claimed in the letter of
6.
demand is different to the amount claimed in the
particulars of claim. This exception is baseless. The
letter of demand
is not a pleading but is a letter informing the
defendant that the plaintiff will be instituting legal proceedings
and what amount
will be claimed. It is not a statutory notice
that must be given. The plaintiff is not bound to the amount
claimed
in the letter of demand. There is nothing vague or
embarrassing in the plaintiff’s particulars of claim on the
amount
claimed. This ground of exception stands to be
dismissed.
The second exception
14. The plaintiff pleads the following in paragraph 6
of his particulars of claim:
“
On or about the 4
th
day of October 2013, the prosecution against the Plaintiff in the
Wynberg Regional Court, was terminated when the said matter was
struck from the
criminal court’s roll.”
15. The defendant pleads that in order to succeed in
a claim for malicious prosecution, the plaintiff must
inter alia
allege and prove that the proceedings were terminated in her
favour. The aforementioned pleading is bad in law, in that the
striking
of a matter from the criminal court’s roll is not, in
and of itself, a termination of the matter in favour of the
plaintiff.
In order for the matter to be terminated in favour
of the plaintiff, the plaintiff is required to allege and prove that
she has
either been acquitted of the charge or she has received a
nolle prosequi
certificate. In the absence of the
aforegoing, the prosecution against the plaintiff has not been
fianlised, as same may be
replaced on the roll at any time by
effecting, either and arrest (warrant) or by issuing of a summons to
appear at court.
The plaintiff particulars of claim do not
contain averments essential to sustain a cause of action in delict
for malicious prosecution
in that the plaintiff has failed to plead
that she was either acquitted or that
7.
a certificate was issued in terms of a
nolle
prosequi.
It was contended that the particulars of claim do
not disclose a cause of action on the grounds that a striking off of
the criminal
charges is not akin to either an acquittal or a refusal
to prosecute. The question then for determination if whether the
pleadings
as they stand disclosed a cause of action.
16. The plaintiff’s claim against the defendant
is for malicious prosecution. It is trite that to succeed with
a claim
for malicious prosecution, a claimant must allege and prove
that:
16.1 the
defendants set the law in motion – they instigated or
instituted the proceedings;
16.2 the
defendants acted without reasonable and probable cause;
16.3 the
defendants acted with ‘malice’ (or
animo iniuriandi)
and
16.4 the
prosecution has failed
In this regard see
Minister of
Justice and Constitutional Development vs Moleko
2009 (2) SACR
585
(SCA).
17. The following was stated in
Thompson &
Another v Minister of Police & Another
1971 (1) SA 371
ECD at
375 A – C:
“
In an action based on malicious
prosecution it has been held that no action will lie until the
criminal proceedings have terminated
un favour of the plaintiff.
This is so because of the essential requisites of the action is proof
of a want of reasonable
and probable cause on the part of the
defendant, and while a prosecution is actual pending its result
cannot be allowed to the
prejudged by the civil action (Lemue v
Zwartbooi, supra at p 407). The action therefore only arises
after the criminal proceedings
against the plaintiff have terminated
in his favour or where the Attorney-General has declined to
prosecute. To my mind the
same principles must apply to an
action based on malicious arrest and detention where a prosecution
ensues on such arrest, as happened
in the present case. The
proceedings from arrest to acquittal
8.
must be regarded as continuous, and no
action personal injury done to the accused person will arise until
the prosecution has been
determined by his discharge. (Bacon v
Nettleton,
1906 T.H. 138
at pp 142-3).
18. The criminal proceedings that were
instituted against the plaintiff in the criminal courts were not
terminated in her favour.
All that happened was that the matter
was struck from the roll. This is not akin to an acquittal or
the termination of the
matter against her. The particulars of
claim therefore do not disclose a cause of action. This
exception is in the
circumstances upheld.
19.
There is no reason why costs should not follow the result.
20. In the
circumstances I make the following order:
20.1
The first exception filed by the defendant is dismissed.
20.2
The second exception filed by the defendant is upheld.
20.3
The plaintiff is to pay the costs of the application.
FRANCIS J
HIGH COURT JUDGE
FOR PLAINTIFF : L PILLAY INSTRUCTED BY
SHAFIQUE SARLIE
& ISMAIL INC
FOR DEFENDNT : V VERGANO INSTRUCTED BY
SCHINDLERS
ATTORNEYS
DATE OF HEARING : 31 JULY 2014
DATE OF JUDGMENT : 8 AUGUST 2014