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[2011] ZAGPPHC 144
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Maartens v Minister of Safety and Security and Others (16355/94, 22112/03) [2011] ZAGPPHC 144 (27 May 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(TRANSVAAL PROVINCIAL
DIVISION)
CASE NO: 16355/94
CASE No: 22112/03
DATE:27/05/2011
In
the matter between:
DR.
M. D. MAAR
TENS
.............................................................................................
PLAINTIFF
And
MINISTER
OF SAFETY AND
SECURITY
........................................................
1
st
DEFENDANT
COMMISSIONER
OF SOUTH AFRICAN POLICE
..........................................
2
nd
DEFENDANT
MINISTER
OF
JUSTICE
.................................................................................
3
RD
DEFENDANT
DIRECTOR
OF PUBLIC
PROSECUTIONS
.....................................................
4
th
DEFENDANT
LIEUTENANT
...................................................................................................
5
th
DEFENDANT
JACO
JOHANNES GIDEON NEL
N.O.
...........................................................
6
th
DEFENDANT
MR.
P.J.P VAN
STADEN
..................................................................................
7
th
DEFENDANT
JUDGMENT
MAVUNDLA.
J.,
[1]
The plaintiff has instituted an action against the defendants
claiming payment of an amount of R1 245 000, 00 in respect of
alleged
damages he suffered as the result of alleged unlawful arrest and
detention.
[2]
In his particulars of claim the plaintiff has alleged that on 8
February 1994 he was unlawfully and wrongfully arrested by the
third
defendant, who acted in the course and scope of his employment with
the first defendant. He further alleges that the arrest
took place
notwithstanding the fact that before he could hand himself at
Potchefstroom, he had given written indication that he
did not want
to make any statement. He further alleged that the members of the
first defendant had well aware of the fact that
there were no charges
against him and that he was going to exercise his right of silence
acted unlawfully in locking him up on
17 February 2000.
[3]
The plaintiff had issued summons against the defendants under two
separate actions under case number 22112/2003 and 16355/1994.
These
cases were per agreement between the parties consolidated per order
of Bertelsman J on 28 March 2007. The costs of that consolidation
order were made costs in the cause.
[4]
The matter was set down for hearing on 18 April 2007. It was agreed
between the parties that the matter be postponed sine die
and that
only costs be argued. The issue essentially was who was to be bear
the costs of the postponement.
[5]
With regard to the first case the claim is in respect of unlawful
arrest and detention. In respect of the second case it is
in respect
of unlawful arrest and detention and unlawful prosecution between
1994 to 2000. The matter was set down for hearing
on 25 April 2005.
The matter was postponed and costs were reserved.
[6]
It is common cause that during the pre-trial held on 24 August 2005
the plaintiff indicated that he intended to amend his particulars
of
claim to change the date of the 18 February to 18 August in paragraph
17 of particulars of claim. It is also common cause that
the
defendants, two days before the trial had raised 8 points in limine.
The consequence of the intended amendment and the points
in limine
resulted in the matter having to be postponed.
[7]
It is well so, that a point in limine may be raised at any stage
during the trial. Equally so, a party can amend his particulars
of
claim at any time before judgment is given, and such can be granted
provided there is no prejudice to the other party that cannot
be
cured by a costs order. There is no reason why the defendants did not
raise the points in limine well in advance so as to allow
the
plaintiff to be better prepared for the trial. Equally so, there is
no reason why the plaintiff did not amend its particulars
of claim
well in advance so as to enable the defendants to be better prepared
for the trial. In so far as the postponement of the
25 April 2005 is
concerned, I am of the view that both parties are equally to blame. I
am also of the view that it is fair in the
circumstances that each
party should bear its own costs occasioned by the postponement of the
25 April 2004.
[8]
It is common cause that the plaintiff amended his particulars of
claim on 4 November 2005 as already indicated herein above.
On 20
April 2006 the matter was set down for hearing on 18 April 2007. On
14 March 2007 the defendants filed a notice of intention
to amend its
plea by raising a special plea that the plaintiff has not complied
with the provisions of section
32, Act 7
of 1958, or Police Service
Act, Act 68 of 1995 and or Act 40 of 2002.
[9]
On the 2 April 2007 the first second and fifth defendants filed yet
another notice of intention to amend their plea to further
plead
that:
(a)
In the event the court finds that Act of
South African Police
Service, Act 68 of 1995
are applicable on the plaintiff's claim
against the first, second and fifth defendants, the plaintiff was
obliged to comply with
the provisions of
s57
of Act 68 of 1995; (b)
The plaintiff has failed to comply with the provisions of s57 of Act
68 of 1995 in that the plaintiff has
failed to:
(I)
serve a notice upon the first, second and third
defendants;
(ii)
institute an action within a year of his discharge
against the
first, second and fifth defendants;
(iii) allege in his
particulars of claim that he has
complied with the provisions of
s57 of the Act;
(iv) institute an action
within a year of his discharge on 18 August 2000 and his claim has
consequentially prescribed.
[10]
In my view, there is no reason at all why the defendants did not
effect the amendments indicated in the last two previous paragraphs
much earlier. The plaintiffs were entitled to prepare adequately for
the trial. The belated amendments of the defendants' plea
must, in my
view, have prejudiced the plaintiff in preparing for trial. However,
the plaintiff is not entitled to the costs of
the matter having had
to be postponed on the 18 August 2005.
[11]
There had been consolidation of matters under case number 16355/94
and case no: 22112/03, which were to be tried jointly. The
plaintiff
had not as yet furnished his response to the seventh defendant's
request for further particulars for trial. He also had
not as yet
discovered his financial statements, nor filed expert notices to
substantiate his damages claim.
[12]
In my view, it would serve no purpose to try to engage in arithmetic
gymnastic to determine the degrees of blame of the respective
parties
for the matter not having been trial ready and who must pay the other
party's portion of costs occasioned by the postponement.
I am of the
view that it is fair in the circumstances of this case that each
party should pay its own costs occasioned by the postponement.
[13]
In the premises, I make the following order:
1.
That each party to pay its own costs occasioned by the postponement
of 25 April 2005 and 18 April 2007.
NJ MAVUNDLA
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT :
27/05/2011
APPLICANTS
ATT : VAN HUYSSTEN & KRIEL INC
APPLICANTS
ADV : MR. J.S. STONE
RESPONDENTS'ATT
: STATE ATTORNEY
RESPONDENTS'
ADV : MR. A. PIETERSE