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[2010] ZAWCHC 624
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Mpemvana v Minister of Safety and Security and Others (4390/2007) [2010] ZAWCHC 624 (10 December 2010)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 4390/2007
In
the matter between:
MZIMKHULU
HILTON MPEMVANA
…...........................................................
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
…...............................
First
Defendant
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
…............................................................................
Second
Defendant
JUDGMENT
DELIVERED: FRIDAY 10 DECEMBER 2010
SALDANHA,
J
[1.]
The plaintiff, Mr. Mzimkulu Hilton Mpemvana instituted an action for
damages against the defendants arising out of his arrest
and
detention on a charge of armed robbery of which he was acquitted.
[2.]
The court with the consent of the parties separated the issue of the
merits from that of the quantum. The only issues for determination
at
this stage is whether the initial arrest and detention of the
plaintiff at the instance of employees of the first defendant
and
subsequent detention allegedly at the instance of the employees of
both defendants was indeed unlawful and wrongful as claimed
by the
plaintiff.
[3.]
In the amended particulars of claim the plaintiff claimed that on the
16
th
April
2004 and at Plettenberg Bay members of the South African Police
Services unlawfully and wrongfully arrested the plaintiff
without a
warrant of arrest and thereafter unlawfully and intentionally
detained or caused the plaintiff to be detained at the
holding cells
of the South African Police Services, Plettenberg Bay and thereafter
at the Knysna Prison until the 1
st
September
2006. In particular the plaintiff claimed that;
(i)
The
members of the first defendant, knew alternatively should have
known
that no reasonable grounds existed for the arrest and
subsequent detention of
the plaintiff.
(ii)
That
the arrest of the plaintiff was effected
animo
iniuriandi
by
the
members of the first defendant.
[4.]
The plaintiff claimed that both the investigating officer and the
state prosecutor at the appearance of the plaintiff in court
on the
charge of armed robbery recommended that he be denied bail
notwithstanding their having considered the police docket, knew
or
ought to have known that;
(i)
Their
existed no
prima
facie
case
against the plaintiff.
(ii)
That
their opposition to bail was not in accordance with law or
in
accordance with justice and that the plaintiff ought to have
been released on bail
and that the charges ought to have been
withdrawn against him. Further that
the state prosecutor and the
members of the first defendant failed to inform the
presiding
magistrate of facts relevant to the states case against the plaintiff
and that relating to the bail application.
[5.]
The plaintiff initially appeared on various occasions in the
Plettenberg Bay magistrates court where he unsuccessfully applied
to
be released on bail. He subsequently appeared in the regional court
at Knysna and stood trial on a charge of armed robbery.
[6.]
The plaintiff claimed that at each of the remands and during the bail
application the defendant owed a duty of care to him
to;
(i)
Assess
the strength of the states case against the plaintiff and
to
determine whether there existed a
prima
facie
case
against him.
(ii)
To
ensure that the charges and proceedings against the plaintiff
were
dealt with timeously and in accordance with law and in
accordance with the
dictates of justice;
(iii)
To
ensure that the plaintiff was not detained in custody or that
his
detention was extended where there was no
prima
facie
case
against him;
(iv)
To
ensure that the plaintiff was granted bail in the circumstances where
it
was in the interests of justice and in accordance with law that
he be released on
bail subject to whatever reasonable conditions
the court may have imposed;
(v)
To
place before the court during each of the remands and when
determining the issue of bail all relevant information including
information with regard to the strength and weaknesses of the states
case and any information favourable to the plaintiff with regard
to
his eligibility to be released on bail.
[7.]
The plaintiff further claimed that the extension of his detention in
custody on the 16
th
April
2004 till the 1
st
September
2006 was as a result as the wrongful, unlawful and or negligent
conduct of members of the first and second defendants.
[8.]
As a consequences of such conduct on the part of the defendants the
plaintiff claimed that he had suffered damages in the amount
of R982
8110. The plaintiff further claimed that the members of the first and
second defendant were at all relevant times acting
within the course
and scope of their employment.
[9.]
The plaintiff claimed that he had complied with the statutory
provisions of Act 40 of 2002 alternatively that he was entitled
to
condonation in terms of section 3 of the Act.
[10.]
Each of the defendants had filed separate pleas. The first defendant
denied that the plaintiff had been unlawfully and wrongfully
arrested
or that he had unlawfully been detained. The first defendant claimed
that the plaintiff's arrest was based on him having
been found in the
immediate vicinity of another person who had been positively
identified by members of the public as having hired
a motor vehicle
which had been used earlier the day in the commission of a robbery
and that he and the other suspect had also been
found to be in
unlawful possession of unlicensed firearms.
[11.]
The second defendant for her part pleaded that officials in her
employ were in possession of sufficient and reasonable evidence
and
had concluded that the state had a
prima
facie
case
of a crime(s) committed by the plaintiff for which the plaintiff
should be charged and tried in a court of law. The second
defendant
further denied that she had wrongfully and unlawfully or negligently
caused the plaintiffs continued detention and claimed
that a
magistrate had considered the evidence at the conclusion of the
plaintiff's bail application and exercised his/her discretion
judicially in refusing the grant of bail which decision resulted in
the continued detention of the plaintiff.
[12.]
At the commencement of the proceedings both the first and second
defendants accepted that they bore the onus of proving the
lawfulness
of the plaintiffs arrest and initial detention. They lead the
evidence of three witnesses. The plaintiff for his part
chose not to
testify and neither was any other witnesses called by the plaintiff.
[13.]
The arrest and detention of the plaintiff on the charge of robbery
with aggravating circumstances (read together with the
provisions of
Act 51(2) of Act 105 of 1997) arose out of an incident on the 16
th
of
April 2004 in which the plaintiff was charged with an alleged
accomplice Mr. Sabelo Sidney Mboto (Mboto) for having robbed a
farm
stall known as Thyme and Again near the N2 national road, Keerbos,
Plettenberg Bay and where a Ms Tanya Bezuidenhout was held
up and
robbed with a firearm. It was alleged that they had stolen an amount
of R722.20 from Bezuidenhout.
The
background
[14.]
The investigating officer in the criminal case, a Inspector Marthinus
Johannes Theunissen and a Warrant Officer Nomdo testified
with regard
to the events that lead up to the arrest and detention of the
plaintiff and his co-accused, Mboto and their subsequent
prosecution
on the charge of armed robbery and a separate charge of the unlawful
possession of a firearm by Mboto. Briefly; on
the 16
th
April
2004 while on patrol duty Nomdo received a report over the radio
about an armed robbery which had taken place at the Thyme
and Again
stall. The report referred to a maroon Cressida and the last three
digits of the number plate of the vehicle which was
alleged to have
been used during the robbery. Descriptions of two of the suspects
involved in the robbery were also given. One
was described as having
worn a long sleeved grey shirt and wearing "tekkies" with
the name "Dickies" on the
back. He also had a black bag
strapped over his shoulder. A description of the other suspect was
given as having a yellow t-shirt
and a maroon jacket and that he had
a distinctive hair style with a bush of hair in the middle while
clean-shaven on either side.
The race of both suspects was also
given. Nomdo claimed that he had seen the vehicle previously in and
around the Qwanoqwaba township.
He subsequently found it parked in a
yard and immediately called for reinforcements over the radio. At the
house, he together with
several other policemen found five persons
whom Nomdo described as
"Nigerians."
They were searched and after the police conducted a search of the
premises they questioned them about the
use of the vehicle earlier
the day. One of the "Nigerians" named George informed them
that he had loaned the vehicle
to Mboto earlier that day. George
together with the others accompanied Nomdo to the Plettenberg Bay
police station where they were
again questioned. There Nomdo met
police officer Theunissen and George agreed to accompany them to the
place where Mboto's girlfriend
lived. There, the door was answered by
Mboto and Theunissen claimed that he immediately recognized Mboto as
one of the suspects
from the description given to the police of the
persons who had been involved in the armed robbery at the Thyme and
Again stall.
As Theunissen entered the premises he noticed Mboto
shifted his hand to the front of his pants where Theunissen observed
a firearm
had been stuck into. He immediately grabbed the firearm
from Mboto and alerted Nomdo about it. Nomdo moved around Theunissen
and
approached the plaintiff who was seated on a bed in the room. The
plaintiff immediately stood up from the bed and Nomdo noticed
a black
bag near to where the plaintiff had sat. He also noticed that the
plaintiff had worn a long sleeved grey shirt and "tekkies"
with the inscription "Dickies." He searched the black bag
and found a firearm in it for which the plaintiff was unable
to
produce a license. The plaintiff and Mboto were arrested for the
possession of unlicensed firearms and their suspected involvement
in
the armed robbery at the Thyme and Again stall. Theunissen claimed
that he had warned the plaintiff of his right to silence
and his
right to legal representation in terms of the Constitution and they
were thereafter taken into custody at the Plettenberg
Bay Police
station.
[15.]
The plaintiff however was according to Theunissen and Nomdo
inexplicably not formally charged and prosecuted for the unlawful
possession of the firearm that was found in the black bag.
[16.]
An identification parade was held on the 12 May 2004 at which the
plaintiff was not identified by any of the eye witnesses.
On the 13
th
May
2004 the plaintiff unsuccessfully applied for bail and remained in
custody until his acquittal on the charge of armed robbery
on the 1
st
September
2006. The plaintiff had been in custody for a period of about 857
days.
The
application for bail.
[17.]
It was common course that the charge of robbery on which the
plaintiff was arrested fell under Schedule 6 of the Criminal
Procedure Act (CPA). Section 60(11) of the CPA provides;
"Notwithstanding
any provision of this act, where an accused is charged
with
an offence referred to -
(a)
In
schedule 6 the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the
law,
unless the accused having been given a reasonable opportunity to do
so adduces evidence satisfies the court that exceptional
circumstances exist which in the interest of justice permit his or
her release.
[18.]
These provisions were found to be constitutional notwithstanding the
shift of
onus
onto
an accused in having to satisfy a court that exceptional
circumstances existed for his/her release on bail.
(See
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schittekat
1992(2) SACR 51 (CC)).
[19.]
Theunissen testified that in preparing for the plaintiffs application
for bail he investigated the personal circumstances
of the plaintiff.
The plaintiff had initially informed him during the arrest at Mboto's
house that he had also lived at the same
residence with Mboto. The
plaintiff however had subsequently said to him that he lived at a
different address at Sididi Street
in Kwanobuhle. He also gave the
Sididi address as his work address. The plaintiff informed him that
he was originally from the
Eastern Cape, Uitenhage and that at the
time of his arrest he had only lived for about a year in Plettenberg.
He claimed that he
was divorced and had two children. The plaintiff
had also claimed that the day prior to the incident (and his arrest)
he had been
in Uitenhage and that he had spent the night with an
unknown woman at an unknown address. On the morning of the incident
he had
got a lift to Plettenberg Bay and was dropped off at the Thyme
and Again stall and from there Mboto had given him a lift to the
Quanoquaba township. Theunissen claimed that Mboto had given him a
contrary explanation as Mboto had claimed that he together with
the
plaintiff and three other unknown persons had gone to the Thyme and
Again stall after he (Mboto) had run an errand in the town.
At the
Thyme and Again road stall Mboto claimed to have looked for a
particular magazine which they did not have and he returned
to the
vehicle. At the vehicle one of the three unknown men got into the car
and told him to drive back to the township. He had
not known that the
three unknown men had been involved in a robbery at the Thyme and
Again stall.
[20.]
Theunissen claimed that he initially sought to oppose the application
for bail by the plaintiff but after the failure of the
witnesses to
identify the plaintiff at the identification parade he recommended to
the prosecutor and in his testimony in the bail
application that the
plaintiff be released on an amount of bail of R1000.00 on condition
that he reported regularly at a police
station. He claimed that he
had also informed the court that the plaintiff may have been linked
to another robbery which had occurred
in May 2003 as the plaintiffs
nickname "Zim" was associated with that of a perpetrator in
that incident.
[21.]
The magistrate refused to release the plaintiff on bail. Theunissen
conceded that part of the considerations the court would
have taken
into account was the possible involvement of the plaintiff in the May
2003 incident.
[22.]
The plaintiff did not appeal the decision of the magistrate and
neither did he during the course of the trial renew his application
for bail. The plaintiff was also subsequently charged with the 2003
robbery and on the 23 November 2003 obtained a discharge in
terms of
section 174 of the CPA. The plaintiff however did not renew his
application for bail thereafter on the Thyme and Again
charge.
The
2003 robbery
[23.]
Nomdo who was the initial investigating officer in the matter claimed
that the only information that the police had about
the perpetrator
was that obtained from informers and that the perpetrator was
allegedly known by the name 'Zim'. One of the witnesses
had
subsequently identified the plaintiff from a photograph shown to him
as one of the suspects in the matter. No identification
parade was
held by either Nomdo or Theunissen who had subsequently taken over
the investigation of the matter. It appeared that
at the trial none
of the witnesses were found which resulted in a collapse of the
states case against the plaintiff and he successfully
obtained a
discharge in terms of section 174.
The
Thyme and Again robbery prosecution.
[24]
The prosecutor who had conducted the trial in the regional court
Mr
Moegamat Faried
testified
about the various appearances by the plaintiff and Mboto in court.
Stemmet had not been involved in the bail application
which had taken
place in the district court. Stemmet's evidence related specifically
to the record of the plaintiffs appearances
in the matter in which it
appeared that the plaintiff had made approximately 20 appearances in
court. The plaintiff and Mboto had
applied for postponements on six
occasions, the matter was crowded out of the roll on three occasions,
the prosecutor was off sick
on one occasion, the magistrate was
unavailable on two occasions and on one occasion a bomb threat forced
a postponement of the
matter. Stemmet also testified that the
plaintiff had not applied for a discharge in terms of 174 of the CPA
after the state had
closed it's case but could not recall with any
certainty whether the plaintiff himself had testified. The plaintiff
he recalled
had been acquitted. The record of the bail and trial
proceedings could not been found. Stemmet's evidence was not
challenged by
any cross-examination.
[25.]
Nomdo had also testified with regard to certain utterances made by
the legal representative of the plaintiff during the course
of the
trial about his apparent surprise at the acquittal of the accused.
For the purposes of the determination of this matter
I will refrain
from taking into account such testimony given its prejudicial nature.
Issues
for determination
[26.]
In the written heads of argument of
Mr
Mouton
who
appeared on behalf of the plaintiff he submitted that there were five
broad issues for determination namely;
(i)
Whether
the arresting officers Theunissen and Nomdo had entertained
a
reasonable suspicion that the plaintiff had committed the
offence of armed
robbery.
(ii)
If
the court were to find that the plaintiffs arrest was lawful the
question
that arose for determination was whether the plaintiff's
detention from the 19
th
April
(the date of the plaintiffs first court appearance) to the 12
th
of
May (the
date of the identity parade) was lawful.
(iii)
If
such detention was lawful, whether plaintiffs further detention from
the
12
th
of
May (the date upon which the identity parade was held) to the 23
rd
of
November
2005 (the date on which the plaintiff was acquitted on the 2003
robbery charge) was lawful.
(iv)
If the court was to find that such detention was lawful whether the
plaintiffs continued detention from the date of his discharge
of the
2003 robbery charge to the date of his acquittal on the Thyme and
Again robbery the 1
st
September
2006 was lawful.
[27.]
During the course of argument Mr. Mouton conceded and correctly so
that there existed a reasonable basis for the arrest of
the
plaintiff. He euphemistically phrased it in argument as "not
wishing to make heavy weather" of the contention by
the
plaintiff. He conceded further that insofar as the plaintiff had
carried the
onus
in
terms of Section 60 of the CPA in respect of the bail application on
the charge of armed robbery the plaintiff was required to
have proved
exceptional circumstances for the court to have released him on bail.
Mr Mouton however submitted that the defendants
were responsible in
law for the continued detention of the plaintiff after the 23
rd
November
2005 until his acquittal on the 1
st
September
2006. In this regard he argued that there was a 'duty' on the part of
the defendants, in particular the investigating
officer and the
prosecutor to have 'advised' the plaintiff to his right to re-apply
for bail after his acquittal on the 2003 charge
of robbery
alternatively to have brought such acquittal to the attention of the
court for the reconsideration of the plaintiff
release on bail. It
was common cause that neither the prosecutor nor the investigating
officer did so. Moreover it was common cause
that the plaintiff had
been legally represented at his trial in the regional court.
The
arrest of the plaintiff
[28.]
Section 41 (a) of the CPA provides that "a peace officer may
without warrant arrest any person -
Who
commits or attempts to commit any offence in his presence
Who
he reasonably suspects of having committed an offence referred to in
schedule 1 other than the offence of escaping from lawful
custody
[29.]
The first defendant correctly assumed the onus of proving the
lawfulness of the plaintiffs arrest (see
Mhaga
v
Minister
of Safety and Security 2001(2) All SA 3534 Tk.
[30.]
The defendant was required to prove that the arresting officer had
entertained a reasonable suspicion that the plaintiff was
involved in
the commission of a schedule 1 offence.
[31.]
On the basis of the evidence, which was not contradicted by any
testimony of the plaintiff, both Theunissen and Nomdo found
the
plaintiff in the presence of Mboto who had been identified as having
driven the vehicle which had been described as having
been used in
the robbery. It also appeared to be common cause that the clothing
worn by the plaintiff on his arrest accorded with
the description
given by the witness and that the plaintiff was found in the
immediate vicinity of a black bag (which had also
been referred to by
the witness) and in which an unlicensed firearm was found. In the
circumstances although the plaintiff had
not been charged with and
prosecuted for the possession of the unlawful firearm there appeared
to be a reasonable basis for the
arresting officers to have formed a
reasonable suspicion of the plaintiffs involvement in the offences
such as the possession of
an unlawful firearm and the armed robbery
at the Thyme and Again stall.
The
refusal of bail to the plaintiff
[32.]
The plaintiff accepted that he had carried the
onus
of
proving exceptional circumstances in terms of section 60(11) for his
release on bail. The investigating officer Theunissen having
investigated the personal circumstances of the plaintiff and with the
lack of identification of the plaintiff at the identification
parade
recommended the plaintiffs release on bail. However, the presiding
magistrate who was charged with the responsibility of
considering all
of the evidence before him decided not to release the plaintiff on
bail as the plaintiff had failed to prove exceptional
circumstances.
That decision was not taken on appeal and neither does it appear that
the plaintiff thereafter ever renewed his
bail application on the
basis of any of his circumstances having changed.
The
continued detention of the plaintiff after the 23 November 2005.
[33.]
The plaintiff remained in custody after his discharge on the May 2003
charges as he remained on trial on the Thyme and Again
charges. He
was legally represented and nothing precluded him from renewing his
bail application in the light of his discharge
on the 2003 robbery.
Mr. Mouton relied on the decision
Zealand
v Minister of Justice and Constitutional Development 2008(4) SA 458
(CC)
in
support of the contention that the defendants retained a
responsibility to advise the plaintiff of his rights to reapply for
bail or to bring it to the attention of the magistrate. The factual
circumstances of the
Zealand
matter
are different from that of the plaintiff. The principle upheld
though; that section 12(1)(a) of the Constitutional of the
Republic
of South Africa is applicable is correct; the subsection prescribes;
"Everyone
has the hght to freedom and security of the person, which
includes
the right -
(a)
not to be deprived of freedom arbitrarily or without just cause."
[34.]
However inasmuch as the plaintiff is under the constitution entitled
to his
liberty
the provisions of section 60 (11) prescribes that;
"The
court shall order" that the plaintiff be detained in custody
until in accordance with the law and unless the plaintiff
had adduced
evidence which satisfied the court that exceptional circumstances
existed which in the interest of justice permitted
his release. The
onus
of
initiating a bail application before the court remained with the
plaintiff and I am of the view that there exists no basis to
burden
any of the defendants with the responsibility of having to inform or
advise the plaintiff of his right to have re-applied
for bail where
the plaintiff had (a) already been informed of his rights upon his
arrest and (b) where he was legally represented
and where he had
already unsuccessfully applied for bail In any bail application
initiated by plaintiff, the defendants would however
have carried
retained the responsibility of placing all of the relevant
information before the court including the fact that plaintiff
had
been discharged on the 2003 robbery. However the
onus
of
proving exceptional circumstances remained with the plaintiff. The
plaintiffs continued detention was on the evidence not without
just
cause or arbitrary. I am therefore of the view that neither of the
defendants had acted either unlawfully or wrongfully or
that they
were negligent in their failure to have advised or informed the
plaintiff of his right to renew his application for bail
or to have
informed the court in the absence of an application for bail of the
discharge of the plaintiff in the May 2003 robbery
matter.
The
issue of costs
[35.]
During the course of the trial two specific issues arose with regard
to the question of costs. The witness Stemmet had initially
not been
available to testify on account of ill health. The proceedings were
adjourned and the defendants were required to provide
proof that
Stemmet's absence had been occasioned as a result of ill health. At
the subsequent appearance of Stemmet he confirmed
that he had been
ill and was unable to attend court. His absence had been supported by
a medical certificate by his doctor. I am
therefore of the view that
each party should carry their own wasted costs occasioned by the
postponement.
[36.]
The second issue relating to costs arose in respect of the wasted
costs occasioned when counsel for the defendant indicated
on the 8
th
June
2010 that the defendants wished to apply for an amendment in terms of
Rule 28(10) to the defendant's pleas by the inclusion
of a special
plea. The second defendant, in the proposed special plea claimed that
by virtue of plaintiffs notice in terms of section
3(1) Act 40 of
2004 in which he had given notice of his intention to institute a
claim against the defendants on the basis of an
alleged unlawful
arrest, unlawful charge and unlawful prosecution, the plaintiff was
precluded from claiming damages based on any
other delicts not
referred to in the aforementioned notice.
[37.]
The defendants also handed up to the court a proposed Amended Plea in
which it claimed that plaintiffs claim arising out of
allegations
that he was
(a)
Maliciously arrested and detained.
(b)
Maliciously prosecuted.
Owed
a duty of care with reference to being granted bail
Be
dismissed with costs for plaintiffs failure to comply with section
3(1) of Act 40 of 2002 in that the plaintiff had failed
to notify
the defendant in the said notice of his intention to institute
proceedings of the nature alluded to in the above paragraphs
1, 2
and 3.
[38.]
Mr. Mouton objected on behalf of the plaintiff to the belated
application for the amendments and informed the court that neither
he
nor his attorney had been appraised or informed prior to the moving
of the application by the defendant's counsel of their intention
to
seek such amendments. Mr. Mouton further submitted that the plaintiff
had not relied during the course of the trial on the claim
based on a
malicious arrest, detention and the prosecution of the plaintiff by
the defendants.
[39.]
The plaintiff thereafter filed an affidavit by his attorney
Mr
Franscois Albertus Swanepoel
in
support of the plaintiffs opposition to the applications for the
amendment. In the affidavit, Swanepoel raised a point
in
limine
on
the basis that the second defendant sought to withdraw an admission
initially made by it in introducing a special plea, whereas
on the
29
th
of
December 2009 they had pleaded and admitted that the plaintiff had
complied with the provision of section 3(1 )(a) of Act 40
of 2002.
[40.]
Swanepoel further submitted that the defendants had provided no
explanation of the circumstances under which the admission
was made
nor the reasons for it's withdrawal. The plaintiff also claimed that
the proposed amendment of the pleas by the insertion
of the special
plea was vague, embarrassing and susceptible to be excepted upon
various grounds.
[41.]
The plaintiff also submitted that the proposed amendment was without
any basis as the plaintiff in his notice had in fact
claimed damages
for the unlawful arrest detention and further detention up until his
acquittal on the 1
st
September
2006 and for the unlawful prosecution. The plaintiff claimed that the
defendant's application was belated, without substance,
vexatious and
bad in law. The plaintiff prayed that the defendants applications be
dismissed with costs on a scale as between attorney
and client
jointly and severally the one paying the other to be absolved. As a
result of the proposed application for the amendment
the proceedings
of the 8
th
June
2010 had been adjourned to the 9
th
June
2010.
[42.]
During the course of dealing with the application for the amendments
on the 9
th
June
2010 and having considered the response of the plaintiffs counsel the
defendants withdrew the application for the amendments.
[43.]
In the light of the abandonment the court requested defendants
counsel to submit an affidavit from the defendants that it
was in
fact their instructions to move for such amendments as defendants
counsel had indicated that the proposed amendments had
only occurred
to him during the course of formulating his heads of argument in the
matter.
[44.]
The defendants filed an affidavit by a Johan Truter a legal officer
in the employ of the first defendant who confirmed that
the
amendments were moved upon their instructions and the instruction to
their counsel was confirmed in an affidavit by the state
attorney
responsible for dealing with the matter.
[45.]
The aborted amendments resulted in the matter being unnecessarily
delayed by more than a full court day. Besides the wasted
costs,
counsel for the plaintiff and the attorney were further
inconvenienced by having to spend another day in Cape Town as they
were both from out of town.
[46.]
In the light of the belated nature of the amendments and its
abandonment I am of the view that it is appropriate that the
wasted
costs occasioned thereby be borne by the defendants on an attorney
client scale, jointly and severally, the one paying the
other to be
absolved. Mr Mouton submitted that a costs award in favour of the
plaintiff should include that of two counsel. I do
not agree, as the
nature and complexity of the matter certainly did not warrant the
employ of two counsel.
In
the result the following order is made:
The
plaintiffs claim is dismissed with costs, save for the wasted costs
occasioned by;
(i)
The
postponement caused by the ill health of Stemmet - where each
party
is ordered to carry their own costs
(ii)
the
aborted amendment of the 8
th
June
2010 which costs are to be borne
by first and second defendant on
an attorney and client scale jointly and severally
the one paying
the other to be absolved.
SALDHANA,
J