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[2010] ZAWCHC 654
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Mpemvana v Minister of Safety and Security and Another (4390/2007) [2010] ZAWCHC 654 (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
iniuhandi
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 htm.
(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 plaintiffs 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 plaintiff's continued detention and claimed
that a
magistrate had considered the evidence at the conclusion of the
plaintiffs 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
sl
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 plaintiff's 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
s
'
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 -
(a) Who commits or attempts to
commit any offence in his presence
(b)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 plaintiff's 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 right
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
plaintiff's 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.
(c) Owed a duty of care with
reference to being granted bai.l
(d) 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 plaintiff's 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.
SALDANHA J