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[2011] ZAECPEHC 12
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Botha v Minister of Safety and Security and Others, January v Minister of Safety Security and Others (575/09, 576/09) [2011] ZAECPEHC 12; 2012 (1) SACR 305 (ECP) (2 April 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case No.: 575/09
576/09
Date
heard: 11 – 24 November 2010
Date
delivered: 1 April 2011
“
REPORTABLE”
In the matters between:
ELWYN
DANIEL BOTHA
Plaintiff/Excipient
and
THE
MINISTER OF SAFETY AND SECURITY N.O.
First Defendant
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT N.O.
Second Defendant
THE PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA N.O.
Third Defendant
THE
NATIONAL PROSECUTING AUTHORITY OF SOUTH AFRICA
Fourth
Defendant
AND
MORNE
YANNICK JANUARY
Plaintiff/Excipient
and
THE
MINISTER OF SAFETY AND SECURITY N.O.
First Defendant
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT N.O.
Second Defendant
THE PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA N.O.
Third Defendant
THE
NATIONAL PROSECUTING AUTHORITY OF SOUTH AFRICA
Fourth
Defendant
J U D G M E N T
TSHIKI, J
:
SUMMARY
Both
plaintiffs have sued the defendants for unlawful arrest and
detention. The subject of this exception taken by the first defendant
against the plaintiffs’ particulars of claim is that they lack
averments necessary to sustain a claim or that they are vague
and
embarrassing. Defendants have contended that our common law does not
include a duty on the police official investigating the
case to
inform the relevant prosecutor that there were no grounds or
justification for the plaintiffs’ continued detention
and
indeed no objective facts reasonably linking the plaintiffs to the
murder charge against them. It is their further contention
that there
is no legal duty on the investigator outside of placing a fair and
honest statement of the relevant facts before the
prosecutor to make
representations regarding the grounds or justification for the
further detention of the plaintiffs. The Court
held that there is a
Constitutional duty on the police officers and public prosecutor(s)
who are handling the case to ascertain
the reasons for the further
detention of the suspect and the prosecutor has to place such reasons
or lack thereof before Court.
The
Court held that the plaintiffs’ particulars of claim do not
lack averments necessary to sustain a claim and are not vague
and
embarrassing. Exception was dismissed with costs.
INTRODUCTION
Both plaintiffs in case no’s
575/2009 (Botha) and 576/2009 (January) were, on 16 March 2008
arrested without a warrant on
a charge of murder and were detained
in custody until their first appearance in Court on 19 March 2008.
On the latter date they
were both remanded in custody to 18 April
2008 when, on that date, Mr Botha was released on bail and the
charges were withdrawn
against Mr January. They are both suing the
same defendants for delictual damages arising out of their alleged
unlawful arrest
and detention up to 19 March 2008 and further
detention until their release on 18 April 2008. Plaintiffs’
initial arrest
and detention was effected by a policeman and their
further detention from 19 March to 18 April 2008, having been
applied for
by the prosecutor, was authorised by the Magistrate
before whom they appeared in Court.
The allegations made by the
plaintiffs in the above two matters are almost identical and are
directed against the same defendants.
The exception by the first
defendant to the plaintiffs’ particulars of claim in each case
is based on the same grounds.
Therefore, I have been requested by
the parties to prepare one judgment in respect of the two matters
and I agree that there
would be no prejudice to anyone if I prepare
and write one judgment in respect of the two applications. In any
event, it would
be convenient and cost effective for the parties if
I do so.
B) EXCEPTIONS
The controversy between the
plaintiffs and the first and fourth defendants arise, and the
exceptions relate, to the plaintiffs’
allegations regarding
the second detention from 19 March 2008 to 18 April 2008. With
regards to the second detention, plaintiffs
seek to hold the first
and fourth defendants jointly and severally liable.
It is the plaintiffs’
contention in the particulars of claim that the arresting officer
and/or any other unknown policeman
involved in the purported
investigation against the plaintiff knew, alternatively, ought to
have known that no reasonable objective
grounds or justification
existed for their subsequent and continued detention. They could
easily have ascertained by the taking
of simple investigative steps
that no such grounds or justification existed but failed to take any
such steps. They, therefore,
failed in their duty to inform the
relevant prosecutors dealing with the matter that there were no
grounds or justification and
that indeed no objective facts
reasonably linking the plaintiffs to the alleged murder.
Consequently, plaintiffs contend that
the police failed to take any
steps whatsoever to ensure that the plaintiffs were released from
detention as soon as possible.
As against the second and/or fourth
defendants’ employees, plaintiffs contend that the
prosecutor(s) who dealt with the
case and had control over the
relevant police docket and who dealt with the plaintiffs from time
to time during their court appearances:
failed in his/her/their duty to
acquaint himself/herself/themselves with the contents of the
relevant police investigation docket
from which it would have been
obvious that there were no reasonable grounds or justification for
the continued detention of the
plaintiffs;
failed in his/her/their duty to
timeously withdraw the charges against the plaintiffs;
failed in his/her/their duty to
inform any presiding officer expeditiously that there were no
objective facts reasonably linking
the plaintiff to the alleged
crime of murder;
in any event failed in his/her/their
duty to ascertain independently that no reasonable grounds or
justification existed for the
continued detention of the plaintiff;
failed to take steps to ensure that
the plaintiffs were released from detention as soon as possible.
In response to the above allegations
in the particulars of claim and in the exceptions, defendants submit
that it is the prosecutor
who is solely responsible for objecting to
the release of an awaiting trial prisoner and to make
representations for his further
detention to the presiding officer;
and there is no legal duty on the investigating officer, outside of
placing a fair and honest
statement of the relevant facts before the
prosecutor, to make representations to the latter regarding the
grounds or justification
for the continued detention of an awaiting
trial prisoner once that prisoner has appeared before Court.
Therefore, says the first
defendant, the decision on whether to
further detain the accused or to oppose bail is that of the
prosecutor, and the decision
to grant or refuse bail rests upon the
exercise of a discretion by the presiding officer.
First defendant therefore contends
that the plaintiffs do not make allegations in their particulars of
claim which are sufficient
to establish a causal link between the
conduct of the investigating officer and the plaintiffs’
continued detention as
awaiting trial prisoners. In the premises,
plaintiffs have failed to allege facts sufficient to sustain a cause
of action, alternatively,
have drafted particulars of claim which
are vague and embarrassing. Therefore, the defendants are unable to
fully or properly
deal therewith or plead thereto or to appreciate
the nature of the plaintiff’s claim in that regard.
During the argument of the exception
Mr G.G. Goosen SC
with
Mr P.N. Kroon
and
Ms A
Rawjee
appeared for the defendants (excipients) and
Mr C.J.
Mouton SC
with
L.D. Ah Shene
appeared for the plaintiffs
(respondents).
C) MERITS OF THE EXCEPTIONS
An exception is a
pleading in which a party states his objection to the contents of a
pleading of the opposite party on the grounds
that the contents are
vague and embarrassing or lack averments which are necessary to
sustain the specific cause of action, or
the specific defence relied
upon.
1
The true object of
an exception is either, if possible, to settle the case, or at least
part of it, in a cheap and easy fashion,
or to protect oneself
against an embarrassment which is so serious as to merit the costs
even of an exception.
2
When an exception
is considered for decision by the court the facts alleged in the
pleadings are taken as correct and that principle
does not extend to
facts which on the face of them are manifestly false and so divorced
from reality that they cannot possibly
be proved.
3
In paragraphs 12 – 14 of the
particulars of claim both plaintiffs have pleaded similarly as
follows:
“
12.
Subsequent to his first appearance before a magistrate on 19 March
2008, the plaintiff was further wrongfully and unlawfully
detained at
the instance of employees of all the defendants until he was released
on bail on 18 April 2008, when he was released
from detention.
The further detention
of the plaintiff from 19 March 2008 until 18 April 2008 was
wrongful and unlawful in that :
the said Inspector van
Zyl and/or other unknown policemen involved in the purported
investigation of the matter against the
plaintiff:
knew; alternatively,
ought to have known; that no reasonable or objective grounds or
justification existed for either the
arrest of the plaintiff or
his subsequent and continued detention;
could have easily
ascertained by the taking of simple investigative steps that no
such grounds or justification existed,
but failed to take any
such steps;
failed in his/their
duty to inform the relevant public prosecutor/s dealing with the
matter that there were no such grounds
or justification and
indeed no objective facts reasonably linking the plaintiff to the
alleged crime of murder;
failed to take any
steps whatsoever to ensure the plaintiff was released from
detention as soon as possible;
the prosecutor or
prosecutors, whose identities are unknown to the plaintiff, who had
control over the relevant police docket
and who dealt with the
plaintiff from time to time during his several Court appearances
until he was released on bail on 18
April 2008 :
failed in
his/her/their duty to acquaint himself/herself/ themselves with
the contents of the relevant police investigation
docket from
which it would have been obvious that there were no reasonable
grounds or justification for the continued detention
of the
plaintiff;
failed in
his/her/their duty to timeously withdraw the charge against the
plaintiff;
failed in
his/her/their duty to inform any of the presiding magistrates
expeditiously that there were no objective facts
reasonably
linking the plaintiff to the alleged crime of murder;
in any event failed
in his/her/their duty to ascertain independently that no
reasonable grounds or justification existed
for the continued
detention of the plaintiff;
failed to take any
steps to ensure that the plaintiff was released from detention as
soon as possible.
At all times material
hereto the said Inspector van Zyl and/or the other policemen
referred to above were employees of the first
defendant acting in
the course and scope of their employment as members of the
aforesaid Service; further or alternatively,
as employees of the
Government of the Republic of South Africa.
At all times material
hereto the aforesaid prosecutor/s was/were employees of the second
defendant; further or alternatively,
of the fourth defendant;
further alternatively, of the third defendant, acting in the course
and scope of their employment
as such.”
In the present case the exception is
based on the fact that the pleading concerned lacks averments which
are necessary to sustain
an action. I say so because it is the
contention of the first defendant that “
the Plaintiff(s)
has failed to allege facts sufficient to sustain a cause of action,.
. .”.
The plaintiffs here have pleaded
inter alia
that
the said Inspector Van Zyl and/or other unknown policemen who were
involved in the purported investigation of the matter
against the
plaintiffs:
“
(i)
knew, alternatively, ought to have known that no reasonable or
objective grounds or justification existed for either the arrest
of
the plaintiff or his subsequent and continued detention;
. . .
Failed in his/her duty
to inform the relevant public prosecutor(s) dealing with the matter
that there were no grounds or justification
and indeed no objective
facts reasonably linking the plaintiffs to the alleged crime of
murder. And failed to take any steps
whatsoever to ensure that the
plaintiffs were released from detention as soon as possible.”
The contention by
the first defendant is that there are no facts pleaded which justify
the conclusion that the first defendant’s
employee(s) failed
to take steps as alleged by the plaintiffs with a view to prevent
the further detention of the plaintiffs.
The argument by first
defendant and or defendants fails to take into account that the
defendants’ employees in this instance
had a constitutional
obligation not to perform any act which infringes upon the
fundamental rights protecting plaintiffs and
which are entrenched in
the Constitution.
4
The most pertinent
right in this case being section 12 which provides:
“
12.
Freedom and Security of the person
(1) 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;
(b)
not to be
detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.“
It is needless to
emphasize that the Constitution
5
further provides
that everyone has inherent dignity and the right to have their
dignity respected and protected.
Much as the
Constitutional provisions referred to above are apposite and
important herein, the provisions of section 39 of the
Constitution
6
are also germane
to the present discussion. The section provides:
“
39
Interpretation of Bill of Rights
(1) When interpreting the
Bill of Rights, a court, tribunal or forum-
(a)
must promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b)
must consider
international law; and
(c)
may consider
foreign law.
(2) When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights.
(3) The Bill of Rights
does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law,
customary law or legislation,
to the extent that they are consistent with the Bill.”
It has become
common knowledge that during the pre-constitutional era the
appropriate test for determining the wrongfulness of
omissions in
delictual actions for damages in our law was settled.
7
The issue then was
one of reasonableness, determined with reference to the legal
perceptions or convictions of the community as
assessed by the
court. Conclusions as to the existence of a legal duty in cases for
which there is no precedent entail policy
decisions and value
judgments which “
shape
and, at times, refashion the common law must also reflect the
wishes, often unspoken, and the perceptions, often dimly discerned,
of the people”
.
8
The current
situation, under the Constitution, in determining whether there was
a legal duty on the police officers to act, “…
[is]
weighing and the striking of a balance between the interests of
parties and the conflicting interests of the community.
This is a
proportionality exercise with liability depending upon the interplay
of various factors. Proportionality is consistent
with the Bill of
Rights, but that exercise must now be carried out in accordance with
the spirit, purport and objects of the
Bill of Rights, and the
relevant factors must be weighed in the context of a Constitutional
state founded on dignity, equality
and freedom and in which
government has positive duties to promote and uphold such values”.
9
The government
does so through its organs and through legislation particularly the
Constitution whose provisions are interpreted,
applied and
ultimately enforced through the Courts.
It follows from
the Constitutional provisions above that there is a duty on the
state and all its organs not to perform any act
that infringes the
above rights. This will obviously apply to the conduct of the
policemen in the case in issue. In
Carmichele
v Minister of Safety and Security
10
Ackermann
et
Goldstone JJ
stated as follows at 959 para [49] – [55]:
“
[49]
Fears expressed about the chilling effect such delictual liability
might have on the proper exercise of duties by public servants
are
sufficiently met by the proportionality exercise which must be
carried out and also by the requirements of foreseeability and
proximity. This exercise in appropriate cases will establish limits
to the delictual liability of public officials.
. . .
[54] Our Constitution is
not merely a formal document regulating public power. It also
embodies, like the German Constitution, an
objective, normative value
system. . . The influence of the fundamental constitutional values on
the common law is mandated by
s 39(2) of the Constitution. It is
within the matrix of this objective normative value system that the
common law must be developed.
[55] This requires
not only a proper appreciation of the Constitution and its objective,
normative value system, but also a proper
understanding of the common
law. We have previously cautioned against overzealous judicial
reform. The proper development of the
common law under s 39(2)
requires close and sensitive interaction between, on the one hand,
the High Courts and the Supreme Court
of Appeal which have particular
expertise and experience in this area of the law and, on the other
hand, this Court. Not only must
the common law be developed in a way
which meets the s 39(2) objectives, but it must be done in a way most
appropriate for the
development of the common law within its own
paradigm.”
Any member of the
police service should exercise his or her powers in accordance with
section 13 of the South African Police Service
Act
11
(the SAPS Act)
which provides:
“
13
Members
(1) Subject to the
Constitution and with due regard to the fundamental rights of every
person, a member may exercise such powers
and shall perform such
duties and functions as are by law conferred on or assigned to a
police official.
(2) Where a member
becomes aware that a prescribed offence has been committed, he or she
shall inform his or her commanding officer
thereof as soon as
possible.
(3)
(a)
A
member who is obliged to perform an official duty, shall, with due
regard to his or her powers, duties and functions, perform
such duty
in a manner that is reasonable in the circumstances.”
What is meant by
section 13 of the SAPS Act above is that all police officers must
act in accordance with the requirements of
the Constitution and in
doing so must have regard to, particularly, the fundamental rights
of every person they are dealing with
in the course of their
duties.
12
In
Fose
v Minister of Safety and Security
above
at paragraph [60] Ackermann J (writing for the majority opinion)
stated:
“
[60]
Notwithstanding these differences, it seems to me that there is no
reason in principle why 'appropriate relief' should not
include an
award of damages, where such an award is necessary to protect and
enforce chap 3 rights. Such awards are made to compensate
persons who
have suffered loss as a result of the breach of a statutory right if,
on a proper construction of the statute in question,
it was the
Legislature's intention that such damages should be payable, and it
would be strange if damages could not be claimed
for, at least, loss
occasioned by the breach of a right vested in the claimant by the
supreme law. . . ”
I am mindful of the fact that we are
not dealing with the merits of the main case but with the merits of
the exception raised
by the first defendant. It is the clear
contention of the plaintiffs that in suing the defendants they rely
on,
inter alia
, the provisions of the Constitution as
contained in Chapter 2 of the Bill of Rights and even if this is not
specifically stated
in the pleadings, it can clearly be inferred
from the nature and wording of the particulars of claim.
I assume that the first defendant’s
complaint is primarily based,
inter alia
, on the absence of a
specific allegation by plaintiffs in their particulars of claim
that
the docket did not contain any information which on the objective
facts would justify the plaintiffs’ further detention
at least
up to and until 18 April 2008 when they were released
. In my
view, there was no need for the plaintiffs to include those
specifics for this information is covered by paragraphs 13
–
15 of the plaintiffs’ particulars of claim.
In order to
succeed an excipient has the duty to persuade the court that upon
every interpretation which the pleading in question
can reasonably
bear, no cause of action or defence (as the case may be) is
disclosed; failing this the exception ought not to
be upheld.
13
A further reason
justifying the exclusion is that this is a matter of evidence. In
McKelvey
v Cowan NO
14
it was held as
follows:
“
It
is a first principle in matters of exception that, if evidence can be
led which can disclose a cause of action alleged in the
pleading,
that particular pleading is not excipiable. A pleading is only
excipiable on the basis that no possible evidence led
on the
pleadings can disclose a cause of action.”
This would therefore be a matter to be
ventilated by evidence during the trial of the case. Whether or not
the plaintiffs can prove
all the allegations complained of by the
excipients is not a matter for this Court to decide now.
The above is
correctly so because in order to disclose a cause of action, the
plaintiff’s pleading must set out every material
fact which it
would be necessary for the plaintiff to prove, if traversed, in
order to support his or her right to judgment of
the Court. “It
does not comprise every piece of evidence which is necessary to
prove each fact, but every fact which is
necessary to be proved.”
15
In the present case it can be implied
from the plaintiffs allegations in the particulars of claim that
first defendant’s
employees failed to make use of the
information in the docket or lack thereof to prevent further
detention of the plaintiffs
and can be inferred from the pleadings
that the plaintiffs’ contention is that the docket did not
contain any information
which would justify the further detention of
the plaintiffs beyond 19 March 2008. The necessary facts complained
of by the first
defendant have been pleaded by the plaintiffs in the
manner stated in paragraphs 4 and 5 above. It is clear from the
contents
of paragraph 5 above, which is exactly the contentions of
the plaintiffs in their particulars of claim, that the docket could
not have contained the information which could justify the further
detention of the plaintiffs beyond 19 March 2008. In other
words,
the policemen could simply have ascertained from the docket or any
other source whether there are any facts or information
which could
have legally justified the further detention of the plaintiffs. The
same holds true about the fourth defendant’s
employee, the
public prosecutor, that he should have made the necessary enquiry
with a view to establish the legal justification
for the further
detention of the plaintiffs beyond 19 March 2008.
Mr Goosen
for the first
defendant has argued, as it is also alleged in the notice of
exception, that the cause of action sought to be framed
by the
plaintiffs’ allegations unjustly poses a further additional
legal duty on the first defendant’s employees
(the
investigators) to assess and evaluate the grounds for the continued
detention of the plaintiffs and to inform the public
prosecutor of
the existence of such justification. It is trite law that on the
correct interpretation of sections 8, 10 and 12
of the Constitution,
referred to
supra
, before any person can be detained by a
police officer exercising public power in terms of a statute or
common law, the police
officer must assess and evaluate the presence
of the grounds or justification for the continued detention. In the
present case,
the onus being on the first and fourth defendants to
justify the further incarceration of the plaintiffs beyond 19 March
2008,
they have an evidential burden to show the legality and
justification of the plaintiffs’ further incarceration for the
period in question. In my view, the information they seek from the
plaintiffs by way of the exception should be elicited by them
by way
of evidence at the trial.
In terms of
section 39(2) of the Constitution Act
16
where the common
law deviates from the spirit, purport and objects of the Bill of
Rights the Courts have an obligation to develop
it by removing that
deviation.
17
It is also trite
law that in a case where the Minister of Safety and Security (as
defendant) is being sued for unlawful arrest
and detention and does
not deny the arrest and detention, the onus to justify the
lawfulness of the detention rests on the defendant
and the burden of
proof shifts to the defendant on the basis of the provisions of the
section 12(1) of the Constitution which
provisions are described in
para 11 of this judgment.
18
These provisions,
therefore, place an obligation on police officials who are bestowed
with duties to arrest and detain persons
charged with and/or
suspected of the commission of criminal offences, to establish
before detaining the person, the justification
and lawfulness of
such arrest and detention.
This, in my view,
includes any further detention for as long as the facts which
justify the detention are within the knowledge
of the police
official. Such police official has a legal duty to inform the public
prosecutor of the existence of information
which would justify the
further detention. Where there are no facts which justify the
further detention of a person, this should
be placed by the
investigator before the prosecutor of the case and the law casts an
obligation on the police official to do
so. In
MVU
v Minister of Safety and Security
19
Willis J held as
follows: “It seems to me that, if a police officer must apply
his or her mind to the circumstances relating
to a person’s
detention, this includes applying his or her mind to the question of
whether detention is necessary at all”.
It goes without saying
that the police officer’s duty to apply his or her mind to the
circumstances relating to a person’s
detention includes
applying his or her mind to the question whether the detention is
necessary at all.
20
This information,
which must have been established by the police officer, will enable
the public prosecutor and eventually the
magistrate to have an
informed decision whether or not there is any legal justification
for the further detention of the person.
The above view was echoed
by Froneman J in
Tobani
v Minister of Correctional Services NO
21
at 323 as follows:
“
What
I have said thus far about the issue of the unlawfulness of
plaintiffs' detention is based squarely on the principle of
constitutional
legality. This is a clear case of a public power being
exercised by part of the executive administration of the State,
namely,
in this case, the defendant and the servants in the
Department of Correctional Services.
In
these circumstances I think it is correct to approach the matter at
the outset from the viewpoint of legality. That is what I
understand
is called for in terms of the Constitutional Court's decision in the
Pharmaceutical
Manufacturers'
case
above, and it appears to me that the pre-constitutional common law
would have made the same demand, albeit perhaps couched
in different
terms.
In the
Pharmaceutical
Manufacturers'
case
Chaskalson P, writing for the full court, emphasised that the
exercise of all public power must comply with the Constitution
which
is the supreme law, and the doctrine of legality which is part of
that law (at para [20]) . . .”
It follows from
what I have stated above that our Constitutional provisions referred
to above make it obligatory for police officers
to first establish
the legal justification of the further detention of a person so as
to relate such information to the public
prosecutor and the latter
would then, after applying his mind to the matter, be in an informed
position whether or not to apply
for the further detention of the
person in custody. In my view, and in practice, it is the police
official investigating the
case who should be in a position to and
must inform the prosecutor, about the strength or otherwise of his
or her case. Failure
by the police officer to apply his mind in the
manner suggested
supra
,
could result in the further detention, being contrary to the
Constitutional provisions and liable to be declared to be unlawful.
22
Relative to the
prosecutors, they owe a duty to carry out their public functions
independently and in the interests of the public.
In doing so he or
she is obliged to act in accordance with the requirements of the
Constitution and has to have regard to the
rights of the accused
person. Such rights include the accused’s rights to bail and
not to be detained arbitrarily and without
just cause. Although the
question of bail consideration is pre-eminently a matter for the
judicial officer,
23
the information
furnished to the judicial officer can but come from the prosecutor.
The latter has a duty to place before court
any information relevant
to the exercise of the discretion with regard to the granting or
refusal of bail.
24
Prosecutors also
have a duty to establish facts which justify the further
incarceration of a detained person before he or she
can apply to the
court for the detainee’s further incarceration. One of the
methods expected to be used by the prosecutor
is to establish from
the police official investigating the case, all the facts which
would justify the further detention of the
arrested person. He or
she has to protect the public interest, act with objectivity, take
proper account of the position of the
suspect and the victim and pay
attention to all relevant circumstances, irrespective of whether
they are to the advantage or
disadvantage of the suspect.
25
The same holds
true in our country especially in view of the principle of legality
recognised in section 1(c) of the Constitution
which describes the
supremacy of the Constitution and the rule of law as one of the
foundational values of the Republic of South
Africa. The doctrine of
legality, which requires that public power should have a source of
law, is applicable whenever public
power is exercised and the public
power must comply with the Constitution which is our country’s
supreme law.
26
In the present case, if the docket
contents did not include information justifying the further
detention of the plaintiffs herein,
the prosecutor would have had a
duty to establish from the investigator the facts which would
justify the further detention of
the plaintiffs. His failure to do
so, and in the event that there were no such facts justifying
further detention of the plaintiffs,
the prosecutor would have acted
unlawfully in applying for further detention of the plaintiffs. This
view is strengthened by
the provisions of section 35(1) of the
Constitution which provides that every one who is arrested for
allegedly committing an
offence has,
inter alia
, the
following rights:
“
(a)
. . .
. . .
that at the first court
appearance after being arrested, to be charged or to be informed of
the reason for the detention to
continue, or to be released; and
to be released from
detention if the interests of justice permit, subject to reasonable
conditions.”
The question about the chilling
effect on how the delictual liability might have on the proper
exercise of duties by public servants
was answered in
Carmichele
supra
at 959 – 960 para 49 and the relevant extract
is quoted
verbatim
in paragraph 18 of this judgment.
The defendants
seek to have been declared exipiable the particulars of claim
mentioned in paragraph 10 of this judgment on the
grounds of lack of
particularity in terms of averments which are necessary to sustain a
cause of action, alternatively, they
are vague and embarrassing such
that the defendants will be unable to fully or properly deal
therewith or to plead thereto or
at least appreciate the nature of
the plaintiffs’ claim. I do not agree, the particulars quoted
above are sufficiently
comprised with the averments which are
necessary to sustain a claim. In my view, defendants will be in a
position to plead to
those particulars and without any
embarrassment. What appears to be lacking in my view is the evidence
in the form of
facta
probantia
which
in any event is not necessary to include in the pleadings at this
stage of the proceedings.
27
Both in his
helpful heads of argument and even during argument in Court,
Mr
Mouton
for
the plaintiffs contended,
inter
alia
,
that owing to the factual allegations by the plaintiffs against the
various defendants, which would assist the Court in considering
whether lack of unlawfulness as well as the existence of and the
breach of the duty of care has been established, would need
facts
which can only be established at the trial after evidence has been
adduced and tested. I do not agree, for my approach
to the issues
involved herein will not deprive the parties of the opportunity of
establishing at the trial, by way of evidence,
the existence or
otherwise of the legal duty and if so whether such duty has been
breached by the defendants. My task at this
stage is to consider
whether or not the plaintiffs particulars of claim with regards to
the further detention of the plaintiffs
from 19 March 2008 to 18
April 2008, are excipiable. My finding is simply that for the
reasons stated
supra
they
are not. I am satisfied that the defendants’ exception cannot
succeed. Both parties are in agreement that there would
be no need
for the award of costs of more than two counsel.
In the result I make the following
order:
The exceptions against the plaintiffs’
particulars of claim in case no. 575/2009 and 576/2009 are hereby
dismissed with costs.
Such costs shall include costs occasioned by
the employment of two counsel.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Appearances
:
For the plaintiff: Adv C.J. Mouton SC
and Adv. L.D. Ah Shene instructed by Swarts Attorneys, Port Elizabeth
For the first defendant: Adv G.G.
Goosen SC , Adv P.N. Kroon and Adv A. Rawjee instructed by the State
Attorney, Port Elizabeth
1
Herbstein
& Van Winsen: The Civil Practice of the High Courts of South
Africa, 5
th
ed, at 630. See also Rule 23(1) of the
Uniform Rules of the Court.
2
Glaser
v Heller
1940 PH F 119 (C) cited in
Kahn v Stuart and Others
1942 CPD 386
at 391.
3
Natal
Fresh Produce Growers’ Association and Others v Agroserve
(Pty) Ltd & Others
1990 (4) SA 749
(N) at 755B
4
Sections
7, 8, 10 and 12 of the Constitution of South Africa 1996, which are
more relevant to our discussion. The provisions of
sections 7, 8 and
10 follow:
“
7
Rights
(1) This Bill of Rights
is a cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and
affirms the democratic
values of human dignity, equality and freedom.
(2) The state must
respect, protect, promote and fulfil the rights in the Bill of
Rights.
(3) The rights in the
Bill of Rights are subject to the limitations contained or referred
to in section 36, or elsewhere in the
Bill.
[a108y1996s8] 8
Application
(1) The Bill of Rights
applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
(2) A provision of the
Bill of Rights binds a natural or a juristic person if, and to the
extent that, it is applicable, taking
into account the nature of the
right and the nature of any duty imposed by the right.
(3) When applying a
provision of the Bill of Rights to a natural or juristic person in
terms of subsection (2), a court-
(a)
in order to
give effect to a right in the Bill, must apply, or if necessary
develop, the common law to the extent that legislation
does not give
effect to that right; and
(b)
may develop
rules of the common law to limit the right, provided that the
limitation is in accordance with section 36 (1).
(4) A juristic person is
entitled to the rights in the Bill of Rights to the extent required
by the nature of the rights and the
nature of that juristic person.
. . .
[a108y1996s10] 10
Human dignity
Everyone has inherent
dignity and the right to have their dignity respected and
protected.”
5
Section
10 of the Constitution of South Africa 1996.
6
Section
39 of the Constitution of South Africa 1996.
7
Minister
van Polisie v Ewels
1975
(3) SA 590
(A) at 597A–C,
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995
(1) SA 303
(A) at 317,
Knop
v Johannesburg City Council
1995
(2) SA 1
(A) at 27G–I and
Government
of the Republic of South Africa v Basdeo and Another
1996
(1) SA 355
(A) at 367E–H.
8
See
MM Corbett on Aspects of the Role of Policy in the Evolution of our
Common Law
(1987) SALJ 52
at page 67 – quoted by Hefer JA in
Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at
318F–G.
9
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at 957B–C.
10
See
footnote 9.
11
Act
68 of 1995.
12
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC).
13
Pete’s
Warehousing and Sales CC v Bowsink Investments CC
2000 (3) SA
833
ECD at 839G also at
[2002] 2 All SA 266
(E),
Sun Packaging
(Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A) at 183D–F and
Lewis v Oneanate (Pty) Ltd and Another
[1992] ZASCA 174
;
1992 (4) SA 811
(A) at
817F–G.
14
1980
(4) SA 525
(Z) at 525.
15
McKenzie
v Farmers Co-operative Meat Industries Ltd
1922 AD 16
at 23. See
also
South African National Parks v RAS
2002 (2) SA 537
(C)
at 542 E – G.
16
The
Constitution of South Africa 1996.
17
See
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at
954A.
18
Section
12(1) provides that 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;
(b)
not to be
detained without trial;
(c)
. . .
(d)
. . .
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
19
2009
(6) SA 82
(GSJ) at 90A.
20
Mvu
v Minister of Safety and Security and Another
supra
.
21
[2000]
2 All SA 318
(SE) also quoted by Jones J in
Minister of
Correctional Services v Tobani
2003 (5) SA 126
(ECD) at 135 B –
C.
22
See
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC).
23
Carmichele
v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at 967 para [72],
S v Dlamini; S v Dladla and Others; S v
Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC) at 641 para [11].
24
Carmichele
v Minister of Safety and Security and Another
supra
at
967E–968A
25
United
Nations Guidelines on the Role of Prosecutors -
Adopted by the
8th United Nations Congress on the Prevention of Crime and the
Treatment of Offenders held in Havana, Cuba, from
17 August - 7
September 1990 – quoted in
Carmichele
judgment
supra
at 968D.
26
SWEAT
v Minister of Safety and Security and Others
2009 (6) SA 513
(WCC) at 523 para [29],
AAA Investments (Pty) Ltd v Micro Finance
Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) at 372 para
[68],
[2006] 11 BCLR 1255
at 1281 para [68].
27
Busheiko
v Milburn
1964 (4) SA 648
at 658 A.