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2021
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[2021] ZAGPJHC 732
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Dzwedzi v The Minister of Police (A3070/2020) [2021] ZAGPJHC 732 (25 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
Number:
A3070/2020
REPORTABLE:
OF
INTEREST TO OTHER JUDGES:
REVISED:
In the matter between:
TSHILIDZI JANE DZWEDZI
Appellant
And
THE
MINISTER OF
POLICE
Respondent
JUDGMENT
LAMONT
J
1.
The appellant instituted action against the
respondent claiming payment of damages for wrongful arrest and
detention. The respondent
filed a plea which was a bare denial. The
appellant excepted to the respondent’s plea. On 1 June 2019 the
court are quo upheld
the exception and struck out the respondent’s
defence. The order which was made reads “The exception is
upheld with
costs; the Defendants Plea is striked out”. In due
course the matter was set down for trial. At the hearing both the
appellant
and respondent were represented. The magistrate who heard
the trial stated “this is a matter that has been set down for
trial…
The exception that was raised by the plaintiff was
upheld and the defendant’s plea was struck out, resulting in
the only
matter in issue still remaining, the issue of quantum.”
The respondents’ representative accepted that the trial was
to
proceed only on quantum and that was indeed the only issue which was
heard at the trial. The respondent had failed in the interim
to
deliver any plea.
2.
It appears that the parties and the
magistrate all agreed that the effect of the striking out of the
respondent’s defence
was that the issue on the merits was
decided in favour of the appellant and that the only remaining issue
on quantum was still
to be decided. The trial proceeded on that
basis. It was submitted by the appellant that if a defence is struck
out the respondent
is not entitled to appear at the trial and
cross-examine the plaintiffs’ witnesses. The appellant referred
to authority dealing
with that issue. That issue is not germane to
the present proceedings where the pleading was struck out i.e. the
respondent could
if it wished file an amended plea. The legal
position is that the striking out of the plea does not result in
judgment in favour
of the plaintiff on the issue. See: Ocean Echo
Properties 327 CC v Old Mutual Life Assurance Company (South Africa)
Limited (288/2017)
[2018] ZASCA 09
(01 March 2018) “ [8]
Preliminarily, it is necessary to observe that it is unclear upon
what basis Le Grange J dealt with
the case in the manner he did.
Having upheld the exception and struck out the plea he proceeded to
enter judgment for Old Mutual,
instead of granting leave to the
appellants, if so advised, to amend their plea. The upholding of an
exception disposes of the
pleading against which the exception was
taken, not the action or defence. An unsuccessful pleader is given
the opportunity to
amend the plea, even when the plea has been set
aside because it does not disclose a defence. The rationale for this
seems to be
that although the defence contained in the pleading may
be bad the pleading as such continues to exist. Ordinarily therefore
the
court should grant leave to amend and not dispose of the matter.
Leave to amend is not a matter of an indulgence; it is a matter
of
course unless there is a good reason that the pleading cannot be
amended.”
3.
Whatever the legal position was the
parties decided that the trial to proceed only on the issue of
quantum and it proceeded on that
basis. During the evidence given on
behalf of the appellant at the trial it appeared that the appellant
on the basis of her own
evidence may not have had facts which
established the probabilities of the merits in her favour. The
evidence she gave may have
established the probabilities of the
merits in favour of the respondent. Crisply put her evidence was that
she had taken an item
from a shop without paying for it and was in
the process of leaving the shop when she was arrested; was
subsequently detained and
taken to court. There were some submissions
made that the arresting officer was required to assess her evidence,
namely that she
had made a mistake in failing to pay, and on that
basis not arrest her or detain her. It is not for the arresting
officer to evaluate
the evidence. The objective evidence established
a taking without consent and removal of an item from the shop. At the
hearing
it may be that the appellant accepted some form of guilt
because it appears that she was told in court that she must do
community
service. This would appear to be some form of punishment
for something. It appears that she may have been part of a diversion
program.
The appellant would only have undertaken a diversion program
if she accepted her guilt as it is only then that the diversion is
available.
4.
Be that as it may the respondent failed to
file any plea and these issues were not raised at the trial. In my
view it is too late
to raise these issues now the trial having been
concluded in the presence of both the appellant and the respondent
who agreed to
the procedure.
5.
The appellant at the time of arrest was 40
years of age was married with 3 children. The family was disappointed
and traumatized
when they heard about her arrest. She had a presence
in the community where she resided and where she had lived for some
twenty
years. She was embarrassed when she was arrested. She was
detained in a cell which was dirty and cold. She slept on the ground
on a mattress with five or six other people and had to bath with cold
water. The cell had one toilet in it and she was compelled
to use the
facility in front of everyone. The plaintiff felt insignificant and
not important. There was no toilet paper, she had
no toiletries to
bath with and was only able to use cold water. She was only fed tea
and bread and was not given an alternative
meal to meat to which she
was allergic. She was released in court after two days (over the
weekend) in detention. The appellant
suffered humiliation discomfort
and her liberty was restrained for the period of detention. The
assessment of awards of general
damages with reference to awards made
in previous cases is difficult. The facts of the particular case need
to be looked at as
a whole and few cases are directly comparable. The
other cases are a useful guide to what other courts have considered
to be appropriate
but have no higher value than that. See Minister of
Safety and Security v Seymore
2006 (6) SA 320
(SCA). Numerous cases
were cited setting out the different value of the awards which had
been made. In my view an appropriate award
is the amount submitted by
the appellant at the trial to be appropriate namely R 60,000.00
6.
I would make the following order:-
1
The appeal is upheld
2
The respondent is to pay the costs of the appeal
3
The order made by the magistrate is set aside
4
The following is substituted therefor:
“
There will
be judgment in favour of the plaintiff.
The defendant is directed to pay the
plaintiff R60000
The defendant is directed to pay the
costs of suit”
_______________________
CG
Lamont
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
I
Agree.
______________________
D
P deVilliers
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
HEARD
ON:
24 MAY 2021
JUDGMENT
DELIVERED ON:
25 MAY 2021
APPEARANCES:
COUNSEL
FOR THE APPELLANT:
ADVOCATE L SWART
INSTRUCTED
BY:
JJ GELDENHUYS ATTORNEYS
NO
APPEARANCE FOR THE RESPONDENT