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[2011] ZAECPEHC 20
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Khwela and Others v Minister of Safety and Security (1322/09) [2011] ZAECPEHC 20 (10 May 2011)
15
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH) CASE NO: 3122/09
In the matter between:
JAPHET PROFESS KHWELA
…........................................................
FIRST
PLAINTIFF
OCTAVIA NTOBINAZO
KHWELA
….............................................
SECOND
PLAINTIFF
SIHLE KHWELA
…...........................................................................
THIRD
PLAINTIFFF
And
THE MINISTER OF SAFETY
AND SECURITY
…......................................
DEFENDANT
JUDGMENT
ANDREWS, AJ
[1] In this matter the
first plaintiff (“the plaintiff”) claimed damages for
unlawful, alternatively malicious arrest
and detention, and malicious
prosecution arising on or about 4 September 2007. The defendant
admitted the arrest and detention
but denied that they were unlawful.
The claims of the second and third plaintiffs were withdrawn on the
date of hearing.
[2] The defendant pleaded
that the institution of these proceedings was not in compliance with
section 3(4) of Act 40 of 2002. On
31 September 2010 this Court
granted the following order:
that the non-compliance
by the applicants with section 3 of Act 40 of 2002 be condoned in
terms of section 3(4) of such Act; and
the applicants be
granted leave in terms of section 3(4) of Act 40 of 2002 to proceed
with the civil action for damages against
respondent;
No order as to costs was
made.
The arrest was without a
warrant. The defendant pleaded that the plaintiff was lawfully
arrested by South African Police Services
(“SAPS”)
members in terms of the provisions of Section 40(1)(b) of the
Criminal Procedure Act 51 of 1977 (“the
CPA”), upon
reasonable suspicion that he had committed an offence of theft
referred to in Schedule 1 of the Act.
[3] The plaintiff pleaded
that he was unlawfully arrested and thereafter unlawfully detained
until he appeared in the Magistrates
Court at Port Elizabeth on 6
September 2007, when he was released on bail. Further that the SAPS
members knew or should have known
that there were no reasonable
grounds for the detention, and that the arrest and detention were
affected by them
animo iniuriandi.
As result of this unlawful
conduct he was unlawfully, deprived of his liberty and suffered
contumelia in the form of anxiety, damage
to his good name,
embarrassment and insult to his dignity.
[4] The plaintiff pleaded
that if the jurisdictional facts for a warrantless arrest were found
to be present, the members of the
SAPS who effected the arrest
nevertheless failed to exercise their discretion to arrest properly
and lawfully. The defendant denied
this claim and pleaded that the
plaintiff was suspected of committing a serious offence which
warranted his arrest, after the allegations
against him were
explained, and that he declined to give his explanation for the
events upon being invited by the arresting officer
to do so.
[5] The plaintiff also
claimed that as a consequence of the arrest the SAPS members set in
motion a malicious prosecution. The defendant
denied these
allegations, pleading that the law was set in motion by Thebalethu
Landu who laid a charge of theft against the plaintiff.
It was also
pleaded that in the event of a finding that the SAPS had set the law
in motion, then they had reasonable and probable
cause to do so,
based on being in possession of evidence under oath by an eye witness
that plaintiff had committed the offence
of theft of a truck.
Arrest without warrant
[6] As was held in
Duncan
v the Minister of Law and Order
1
the jurisdictional facts
for a lawful arrest under section 40(1)(b) are:
the arrestor must be a
peace officer;
the arrestor must
entertain a suspicion;
the suspicion must be
that the suspect committed an offence referred to in schedule 1;
the suspicion must rest
on reasonable grounds.
The defendant bears the
onus of justifying the arrest (
Minister
of Law and Order v Hurley
2
).
[7] It is common cause
that the plaintiff was employed at the time of his arrest by Rand
Civils as the driver of a truck which was
stolen on the night of 3
September 2007. He was arrested on suspicion of having committed
theft of property valued at approximately
R500 000, ie a
schedule 1 offence, by Warrant Officer Vermaak, a member of the SAPS,
on 4
th
September at his workplace, after being pointed out
by a security guard working for the employer, Thembalethu Landu.
Landu had
deposed to an affidavit an hour before the arrest where he
stated that he could identify the suspect. The plaintiff was held in
detention at Zwartkops Police Station until his release on warning on
the morning of 6
th
September, 48 hours after his arrest.
The defendant admitted that the arrest and detention were effected by
members of SAPS acting
in the course and scope of their employment.
On the 6
th
September a note in the investigation diary at
Zwartkops, Mount Road, by the public prosecutor inquired how Landu
knew the plaintiff
on the 4
th
but did not recognise him at
the crime scene. The investigating officer, Gerhard Weyers asked
Landu the same question, as was reflected
in his affidavit dated 13
September 2007. Charges were eventually withdrawn against the
plaintiff
Reasonable suspicion.
[8] The first issue to be
decided is whether Vermaak formed a reasonable suspicion that the
plaintiff had committed a Schedule 1
offence. The defendant bore the
onus of proving reasonableness. As stated on
Mabona
v Minister of Law and Order and others
3
the test is an objective
one:
“
Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there were
good and
sufficient grounds for suspecting that the plaintiffs were guilty of
the conspiracy to commit robbery or possession of
stolen property
knowing it to have been stolen? It seems to me that in evaluating
this information a reasonable man would bear
in mind that the section
authorizes drastic police action. It authorizes an arrest on the
strength of a suspicion and without the
need to swear out a warrant,
i.e. something which otherwise would be an invasion of private rights
and personal liberty. The reasonable
man will therefore analyze and
assess the quality of information at his disposal critically, and
will not accept it lightly without
checking it where it can be
checked. It is only after an examination of this kind that he will
allow himself to entertain the suspicion
which will justify an
arrest. This is not to say that the information at his disposal must
be of sufficiently high quality and
cogency to engender in him a
conviction that the suspect is in fact guilty. The section requires
suspicion but not certainty. However
the suspicion must be based on
solid grounds. Otherwise it will be flighty or arbitrary and not a
reasonable suspicion.”
[9] Vermaak stated that
he formed the suspicion necessary for a lawful arrest on the basis of
a sworn statement of an eye witness,
Landu and that he had no reason
to doubt Landu, a security guard stationed at the Rand Civils
premises at the time. Landu deposed
that he had witnessed the theft
and could identify the suspects. His statement did not contain any
information which identified
the plaintiff and therefore I conclude
that the suspicion could only have been formed after the plaintiff
had been pointed out
by Landu.
[10]
The
plaintiff’s counsel argued that according to Standing Order G
341,
section
2(1) an arrestor must really believe or suspect something based on
facts which are certain, and that a reasonable person
would have held
the same belief or suspicion. Reference was made to the case of
Gellman
v Minister of Safety and Security
4
which states that there
is a need for corroboration of the evidence of a single witness. It
was submitted that Vermaak did not take
extra steps to check the
testimony of Landu in order to satisfy himself that the suspicion was
well grounded and that he was entitled
to arrest the plaintiff.
According to Landu’s affidavit, on the evening of the 3
rd
September he was present
at the crime scene at the time of the theft, and he called his
employer and the police who both arrived
at the scene. The affidavit
was drawn up the next day at the police station. In this regard it
merely stated “I will recognise
the driver who drove the
truck.” Landu did not state that he could identify any specific
person, or the fact that he recognised
a suspect as being someone who
worked at Rand Civils. Sergeant Weyers, a few days after the arrest,
concluded that it was strange
that Landu could identify the suspect
on the 4
th
but was not so sure on
the night of the theft. It was submitted on behalf of the plaintiff
that Vermaak was in a rush on the morning
of the 4
th
September, and the arrest
was based on his own personal convenience rather than a reasonable
suspicion that the plaintiff had committed
an offence. Less invasive
options than arrest should have been considered by the members of the
police.
Counsel
for the defendant argued that there was no evidence of any reason for
Vermaak to doubt that Landu could identify the suspect
on 4
th
Septermber.
[11] It is not clear from
Landu’s affidavit when precisely he became able to identify the
suspect.
Vermaak’s
evidence was that since Landu was prepared to state under oath that
he could identify the suspect and to physically
point him out, he
felt that there was no reason to doubt him or probe the veracity of
this assertion. In my opinion it would be
unreasonable to expect a
police officer to interrogate an informant who is prepared to state
under oath that he can identify a
suspect in a Schedule 1 offence,
and who is willing to point him out, unless there is a significant
improbability or uncertainty
in his statement. The plaintiffs counsel
submitted that this was the position in the present matter.
[12] With hindsight,
Vermaak could have enquired from Landu when and how he had come to be
able to identify the suspect, on the
morning of the 4
th
September. But since
Landu had stated under oath that he could do so, I do not think it
was improper of Vermaak to accept this assurance.
Under cross
examination he stated that it was possible that Landu could have seen
the suspect earlier that morning. The probabilities
of such a meeting
taking place were explored in the cross examination of Vermaak but
not completely excluded in the process.
[13]
The
information at the disposal of Vermaak at this point was not yet the
full basis of the suspicion. The suspect still had to be
pointed out.
Vermaak testified that he checked with Landu whether the plaintiff
was the correct suspect after he had been pointed
out.
At this initial stage
Vermaak had therefore laid the basis for a reasonable suspicion on
which to base the arrest.
The exercise of
discretion to arrest.
[14] As stated in
The
Minister of Safety and Security v T J Sekhoto
5
once the jurisdictional
facts for an arrest are present, the discretion whether to arrest
arises. The officer is not obliged to
arrest. The exercise of
discretion to arrest must be lawfully exercised. Any discretion that
must be exercised must be in good
faith, rationally and not
arbitrarily.
6
The exercise of
discretion must also be objectively rational and rationally related
to the purpose for which the power was given.
7
Once the jurisdictional
facts for the arrest are established it is for the plaintiff to prove
that the discretion was exercised
in an improper manner.
8
The police official has
the duty to investigate exculpatory explanations by the suspect, if
the plaintiff has pleaded that other
less invasive means should be
used in order to bring the suspect to court.
9
[15] The plaintiff
pleaded that the members of the defendant failed to properly or
lawfully exercise their discretion to arrest
the plaintiff, on
inter
alia
the following grounds: They failed to apply their minds in
considering whether or not to effect the arrest in that they failed
to consider all information before them. They failed to establish and
provide sufficient reasons for the exercise of the discretion
to
arrest. They acted arbitrarily and capriciously in exercising the
discretion whether or not to arrest. The defendant denied
these
claims and put the plaintiff to the proof thereof. It justified the
arrest on the grounds of the reasonable suspicion coupled
with the
plaintiff’s failure to answer questions after he had been
pointed out by the eye witness, and the allegations had
been
explained to him. Vermaak’s evidence was that the need to do
further investigation at the SAPS cells arose as a result
of the fact
that the plaintiff would not answer his questions. According to
Vermaak’s evidence, had the plaintiff given an
alibi this would
have been investigated. Vermaak clearly did not consider arrest to be
an automatic next step which would have
taken place after
identification of the plaintiff, even though he might not have
distrusted Landu’s version.
[16] In his evidence in
chief, Vermaak testified that the plaintiff was pointed out to him at
Rand Cilvils by Landu, and was then
brought over to him by an
employee of the company. He asked the plaintiff his name and was told
it was Mr Khwela. He then informed
the plaintiff that Landu had laid
a charge of theft and that he had been identified as one of the
suspects. He then asked the plaintiff
if he could tell him something
about the incident to which the plaintiff replied that he had nothing
to tell him. He asked him
whether he was on the premises of Rand
Civils the previous night, but the plaintiff did not say anything. If
he had said something
he would have followed it up. Then he stated
that if plaintiff had nothing to tell him that he would have to
arrest him. Before
arresting him he asked Landu if the plaintiff had
been correctly identified. Under cross examination he repeated the
interchange:
“
Nadat ek
myself voorgestel het, het ek aan hom verduidelik wat ek daar kom
doen het oor die diefstal. Ek het toe vir hom gevra of
hy enigiets
vir my kan se ten opsigte van die diefstal, die bewering wat teen hom
gemaak is. Hy het toe vir my gese dat hy niks
vir my te se nie. ”
“
So your
exact question was did he know anything about the theft?- - -
Answer:
That’s correct.
And he said “I have nothing
to say?- - - Answer: Yes, he’s got nothing to say to me.
What else then?- - -Answer: Then I
said to Mr Khwela if he is not going to speak to me or tell me
anything I will have to arrest
him.”
Vermaak stated that the
plaintiff would not talk to him, he did not know why.
This
necessitated taking the plaintiff to the cells for further
investigation.
[17] Plaintiff’s
version of the events was that after he was pointed out, and called
over to where the police were standing,
Vermaak asked him where he
had put the truck after stealing it. He became shocked by being asked
such a question and told him that
he did not know where it was.
Vermaak then told him that someone saw him stealing the truck and
therefore he must say where he
hid it. He gave the same reply, that
he did not know where the truck was when he arrived at work. Vermaak
then told him that since
he had been seen taking the truck he was
arresting him. He asked where he had been the previous evening at
20H30 to which the plaintiff
replied, at home. Vermaak’s
response was to show disbelief, whereafter he arrested him. His view
was that the information
on which the police based the arrest was
insufficient. They simply believed Landu and never investigated where
he was at the time
of the theft.
[18] Counsel for the
plaintiff argued that Vermaak’s conclusion that the plaintiff
failed to co-operate with the police was
unfounded. He had supplied
his
name, address and whereabouts the
previous evening to the police. He was asked broad questions about
the disappearance of the truck
and his statement that he had nothing
to tell Vermaak did not signal a refusal to co-operate with the
Police. No other questions
were asked of plaintiff.
[19] The defendant’s
counsel argued that there was a glaring improbability in the
plaintiff’s version in that he testified
that he never met or
saw his accuser, yet Landu who accompanied the police pointed him
out. Also, that the plaintiff’s evidence
did not concur with
his counsel’s submission that no further questions were asked.
It was argued that the test is whether
the police officer duly and
honestly applied his mind even though he might have made a mistake ie
the actions must be objectively
rational, in good faith and not
arbitrary.
[20] It appears that the
plaintiff’s counsel’s submission that no further
questions were asked of the plaintiff after
the initial interchange
is correct. There is disagreement between the parties as to whether
the interchange culminated in the plaintiff
advising the police that
he was at home the previous night during the time of the theft or
not. The probabilities as to the respective
versions will be
discussed below.
Analysis
[21] Vermaak’s
evidence does not differ much from the plaintiff’s evidence as
to how he initially responded to being
confronted with the
allegations that he was implicated in the theft. In evaluating
Vermaak’s version, that plaintiff refused
to speak to him, the
following facts are relevant. Vermaak stated that the plaintiff had
given him his name and address. The plaintiff
responded to being
asked if he had anything to say about the theft, by saying he had
nothing to tell him.
Other conduct by the
plaintiff indicates that he was willing to speak to Vermaak. The
following information reveals Vermaak’s
uncertainty regarding
his version, that the plaintiff refused to speak to him.
“
You
did not ask Mr Khwela where he lived…..Answer: No
May
I please ask you to read …. Answer: I’m sorry before I
turn this page, he said he stayed I think it was Motherwell,
Buthelezi Street or something like that.
So
he did tell you where he lived…. Answer: He did.
Did
you ask him or did he just tell you? … Answer: No I think I
asked him, I’m not sure if I asked him or Capt Neethling
asked
him at that stage, but he did give his address.
He
did give his address. But after that you said he was unco operative….
Answer: Ja well, he did not want to speak to me.
He did not want to
say anything to me.
[22] It is unlikely that
the plaintiff would have refused to speak to Vermaak but given
information Neethling when both were present
together at the time of
the arrest. There is no indication in Vermaak’s evidence that
Neethling questioned the plaintiff
at the scene. Thus the evidence
suggests that the plaintiff was forthcoming to Vermaak with
information. It also suggests a certain
awkwardness on the part of
Vermaak in admitting that the plaintiff had given him this
information, possibly unsolicited, when his
version was that the
plaintiff adamantly refused to speak to him.
Plaintiff’’s
evidence in my view does not indicate a refusal to speak to Vermaak
or a refusal to answer questions, and
it appears that Vermaak
wrongly, and over hastily concluded so. The plaintiff’s
response is in fact consistent with having
an alibi, which was his
position at all material times.
It is improbable that the
Plaintiff would have supplied his address readily, possibly without
even being asked by Vermaak, and would
then have refused to answer a
question where he could have exculpated himself, by indicating that
he had an alibi, that he was
at home at that address the previous
evening. I found the plaintiff to be a credible and confident witness
and discrepancies in
his testimony were minor in nature and not
relevant to the facts surrounding his arrest. It is more probable
that Vermaak refused
to believe the alibi, which was the plaintiff’s
version. As it happens, later on the day of the arrest the police
interviewed
the plaintiff’s minor son at home and he testified
that they were told that the plaintiff was at home the previous
evening.
[23] Numerous persons
were present when Vermaak questioned the Plaintiff. He testified that
he was accompanied to the scene by Captain
Neethling and Constable
Plaatjies who remained in the police vehicle. When the plaintiff was
called he came to them, and they were
standing near the vehicle. It
is not clear from the evidence who precisely Vermaak was referring to
in this instance but it seems
safe to assume that Landu who did the
pointing out and Plaatjies who remained in the vehicle were present
during the interchange
between Vermaak and the plaintiff. Neethling,
a worker from Rand Civils who pointed the plaintiff out and a head of
Rand Civils
were also mentioned by him as having been on the scene at
the time. However no witnesses were called to testify to corroborate
Vermaak’s version. He also appeared to give somewhat
contradictory evidence when describing the plaintiff’s conduct.
He stated that the plaintiff refused to talk to him and refused to
get into the police van when asked to, but one more than one
occasion
in his evidence pointed out that the plaintiff was not uncooperative.
Vermaak was on patrol that morning attending to
complaints, and at
the time of the arrest already had an outstanding complaint waiting
for him to attend to. He was not the investigating
officer in the
truck theft case. He had been told about it by his shift commander on
arrival at work that morning about it and
was asked to “go and
look as to whether we can find this man at the premises and arrest
him.” He may well have believed
that his instruction was to
arrest the suspect, and for that reason ignored the alibi, although I
do not need to find a motive.
I conclude that the plaintiff’s
version is more probable and is inherently probable, namely that
Vermaak unreasonably disbelieved
him and went ahead and arrested him
without checking his alibi. In exercising the discretion to arrest,
Vermaak as arresting officer
and member of Defendant therefore failed
to duly and honestly apply his mind to the fact that the plaintiff
may have had an alibi
ie failed to consider all information before
him, and thus failed to establish and provide sufficient reasons for
the exercise
of the discretion to arrest. Vermaak thus acted
arbitrarily and capriciously in exercising the discretion whether or
not to arrest.
[24] The plaintiff argued
that if reasonable grounds existed for the arrest, Vermaak should
have applied his mind as to whether
a less invasive option should
have been exercised. This argument falls away in light of the
conclusion in the previous paragraph.
[25] As to the possible
improbability regarding plaintiff’s evidence, that he never saw
his accuser at the pointing out, the
plaintiff’s evidence was
as follows: He testified that he observed security guards speaking to
the police and pointing at
him. He thought they were doing so because
they were going to ask him something, because his truck was lost or
missing. His evidence
did not go as far as to indicate that he was
made aware at that time that one of these persons, Landu, was the
person who had identified
him as a suspect. He disputed that Vermaak
asked Landu questions about him in his presence. He did not know
Landu nor could he
point him out. The improbability is therefore not
established.
Unlawful detention
[26] The plaintiff
pleaded that after his arrest he was unlawfully, wrongfully,
alternatively maliciously and without probable cause,
detained until
his release on bail on 6 September 2007. This was denied by the
defendant. Plaintiff submitted that if a person
is unlawfully
arrested their detention after the arrest will also be unlawful, and
the right will be retained to institute an action
for damages as a
result of the unlawful arrest and detention. Once the detention by a
police officer is proved the onus shifts
to the defendant to raise a
ground of justification. In this matter since the arrest was found to
be unlawful and arbitrary, I
conclude that the subsequent detention
was also unlawful.
Malicious Prosecution
[27] The requirements of
this delict are fourfold:
the defendant must
institute the proceedings;
the defendant acted
without reasonable and probably cause;
the defendant was
actuated by an improper motive or malice;
the proceedings were
terminated in the plaintiff’s favour.
[28] The defendant
pleaded that in instituting the prosecution against the plaintiff the
law was set in motion by Landu who laid
a charge of theft under oath
with the South African Police Services. Whereafter the members in the
execution of their duties and
in accordance with the provisions of
the
Criminal Procedure Act brought
the plaintiff before court for a
decision by the National Prosecuting Authority as to whether or not
to further the prosecution
against him on a charge of theft. The
issue of whether the defendant’s servants set the law in motion
remained in dispute
at the trial.
[29] The prosecution
would not have been initiated, were it not for the sworn statement
and pointing out of the plaintiff by Landu.
Landu called the police,
and his employer to the scene on the 3
rd
September. On the
morning of 4
th
September he came to the police station,
and made the sworn statement as a result of which a docket was
opened. Members of the
SAPS then accompanied him to the scene to
point out the plaintiff. But for the conduct of Landu no proceedings
would have been
instituted. I conclude that the claim of malicious
prosecution against the defendant must fail.
Quantum of Damages
[30] The factors that
must be taken into account in determining quantum in cases of
unlawful arrest and detention are cited in Visser
and Potgieter
The
Law of Damages
(2
ed 472-5) and include the circumstances in which the deprivation of
liberty took place, the presence or absence of an apology
or
satisfactory explanation from the defendants, the infringement of
personality rights other than physical freedom, the high value
of the
right to physical liberty, that the
action
iniuriarum
has
a punitive function, and awards in previous comparable cases. As
stated by Jones, J in
Olgar
v Minister
of
safety and Security
10
(approved in
Masixole
Nelson Fubesi v Minister of Safety and Security
11
)
“
In
modern South Africa a just award for damages for wrongful arrest and
detention should express the importance of the constitutional
right
to individual freedom, and it should properly take into account the
facts of the case, the personal circumstances of the
victim, and the
nature, extent and degree of the affront to his dignity and his sense
of personal worth. These considerations should
be tempered with
restraint and a proper regard to the value of money, to avoid the
notion of an extravagant distribution of wealth
from that Holmes J
called the “horn of plenty”, at the expense of the
defendant.”
[31] The plaintiff is a
mature gentleman who was arrested in full view of his fellow
employees at the workplace. He testified that
he felt painful,
especially as his fellow employees might have thought that he was
involved in the theft. He found it difficult
to get into the back of
a police van and alleged that he was sworn at by a member of the
defendant. The defendant disputed this.
He was detained for 48 hours.
He claimed that his wife came to see him on the first day of his
detention but he was not permitted
to see her until the second day.
He had to sleep with other detainees in a cell with a filthy toilet
and in conditions that he
did not regard as conducive to living for a
human being. He was afraid as he was not sure if the other inmates
were criminals.
The lights were kept on the whole night. He did not
sleep well, on the flimsy mattress provided, with a blanket that did
not cover
him and was not suitable for a human being to sleep on. His
son testified that after his arrest he became withdrawn where
beforehand
he was talkative. Although the plaintiff did not plead the
specific circumstances that he was exposed to in custody as part of
his claim, the court takes judicial notice of the fact that prison
conditions and police custody would result in a deprivation of
comfort and privacy, and possible exposure to criminals.
[32] Charges against the
plaintiff were withdrawn, but no apology was tendered for the arrest
and detention. The Plaintiff lost
his job on his return from custody
but a claim in this regard was not pleaded, and will therefore not be
considered. In the light
of the above facts I have no doubt that the
plaintiff suffered anxiety, damage to his good name, embarrassment
and insult to his
dignity as a result of his unlawful arrest and
detention. He was incarcerated with others whom he was afraid of lest
they were
criminals, in squalid conditions for a period of 48 hours.
This caused him discomfort and distress and was obviously a
humiliating
and degrading experience for a 48 year old man.
[33] Taking into account
the factors listed above, as well as awards in comparable cases, I
consider an award of R60 000 for
unlawful arrest and detention
for a period of 48 hours to be reasonable. In considering the
appropriate quantum of damages I have
been guided by recent judgments
in this division as well as others, which involved detentions of
similar duration to that of the
plaintiff. These judgments include
J
M Wardle v The Minister of Safety and Security,
12
R C Norman v The
Minister of Safety and Security,
13
M N Fubesi v The
Minister of Safety and Security
14
,
as well
as
Mvu v
The Minister of Safety and Security,
15
as
Gellman
v The Minister of Safety and Security,
16
and
Stolz
v The Minister of Safety and Security.
17
Postponement
[34] This matter had to
be postponed on 22
nd
September 2009, because two of
defendant’s witnesses did not attend court. They were not
subpoenad. They were aware of the
date of set down but decided not to
attend because of leave commitments. In preparing for this trial
defendant and its attorneys
would have needed to consult with
witnesses and therefore must have known that these witnesses had no
intention of coming to court
on the set down date. Due diligence in
the handling of litigation responsibilities would have included
making sure that witnesses
attend, ascertaining whether they are
likely to attend and if not, informing the plaintiff that the matter
will have to be postponed.
The defendant did not do so and the matter
had to be postponed on the date of hearing due to the non attendance
of two of the defendant’s
witnesses. The plaintiff is as a
result out of pocket due to no fault of his own and therefore it is
appropriate to award costs
of this postponement against the
defendant.
[35] It is ordered
The defendant is to pay
plaintiff the sum of R60 000, with interest at a rate of 15,5 %
per annum from date of this judgment
to date of payment;
The defendant is to pay
the plaintiff’s costs on the High Court scale including the
costs of the postponement on a party
and party scale.
_________________
ANGELA ANDREWS
ACTING JUDGE OF THE
HIGH COURT
DATE HEARD :28 January
2011
DATE DELIVERED :10 May
2011
For the Plaintiff : ADV
DYER
Instructed by : O’BRIEN
INC. ATTORNEYS
2
nd
FLOOR,
UNIVERSITY CHAMBERS
26 BIRD STREET
CENTRAL
PORT ELIZABETH
For the Defendant : ADV
WOLMARANS
Instructed by : MINISTER
OF SAFETY AND SECURITY
C/O STATE ATTORNEY
29 WESTERN ROAD
CENTRAL
PORT ELIZABETH
1
1986
[2] SA 805 [A] at 818G-H
2
1986
(3) SA 568
(a) at 589 E-F
3
1988(2)
SA 654 (SE) 658 E-H
4
2008(1)
SACR 446 (W)
5
(131/10){2010]ZASCA
141 at parag 28
6
Id
parag 38
7
Id
parag 36
8
Id
parag 48
9
Id
parag 52
10
ECD
18 December 2008 (Case no 608/07) unreported para 16,
11
ECD
23 October 2010 (Case no 680/09) para 17
12
ECD
dated 25/6/2010 (Case no CA 27/2010) unreported.
13
ECD
dated 10/09/2010 (Case no CA 71/2009) unreported.
14
ECD
dated 30/09/2010(Case no 608/07) unreported ,
15
2009(2)
SACR 291
16
2008(1)
SACR 446 (W)
17
[2006]
JOL 16612
(SE)