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[2013] ZAECPEHC 23
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Sikhunana v Minister of Safety and Security (669/04) [2013] ZAECPEHC 23 (18 February 2013)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, PORT ELIZABETH)
CASE NO: 669/04
IN THE MATTER BETWEEN:
PHAKAMILE SIKHUNANA
...........................................................................
PLAINTIFF
AND
THE MINISTER OF SAFETY AND SECURITY
......................................
DEFENDANT
Coram: Lowe J
Date Heard: 12 February 2013
Date Delivered: 18 February 2013
Nature
of matter:
Delict - claim for damages – arising from
wrongful and unlawful detention and the preferring of criminal
charges; special
pleas first, whether the order of court, sanitised
what might otherwise be found in due course to have been a wrongful
and unlawful
arrest without warrant – second special
prescription
Order:
The first and second special pleas raised by defendant are to be
decided separately in terms of rule 33 (4) these being separated
from
the remainder of the cause of action accordingly; the first special
plea succeeds, plaintiffs claim in respect of his detention
for the
period 1 September 2000 to the date of his release being dismissed;
The defendant’s second special plea succeeds,
plaintiffs claim
in respect of his arrest and detention prior to 12 March 2001 being
dismissed; and plaintiff is to pay defendants
cost of suit relevant
to the first and second plea.
JUDGMENT
LOWE, J:
INTRODUCTION
[1] The plaintiff in this matter issued summons out of the above
honourable court based upon what was alleged to be a wrongful
and
unlawful detention at the instance of the SAPS he being thereafter
held at St Albans prison from the plaintiffs arrest on 31
August 2000
until his release on 12 March 2003.
[2] The precise nature of the cause of action is somewhat difficult
to discern from the pleadings but the balance of the particulars
of
claim would appear to have been aimed not directly at unlawful arrest
but at wrongful and unlawful detention and the preferring
of criminal
charges, as a result of what is alleged to have been the policeman’s
unlawful and wrongful conduct. The exact
nature of which is not set
out or specified.
[3] Summons was issue in March 2004 and served on 12 March 2004 on
the defendant.
[4] In due course the defendant filed its plea containing two special
pleas and a plea over on the merits.
[5] The arrest complained of was an arrest without warrant the
defendant pleading over that the arrest was lawful in terms of the
provisions of
section 40
(1) (b) of the
Criminal Procedure Act 51 of
1977
.
[6] The first special plea alleged that plaintiff claimed that the
arrest was wrongful and unlawful, averred that plaintiff brought
an
application for bail on 1 September 2000, the magistrate dismissing
same and thereafter the plaintiff appearing from time to
time before
the magistrate, on each occasion being further remanded on a lawful
warrant of detention issued by the magistrate by
due process of law.
[7] It is thus contended that plaintiffs detention from 1 September
2000 (he having being arrested on 31 August 2000) to date of
his
final release was lawful and in terms of a magistrates warrant. The
prayer sought dismissal of the claim for all but the first
day the
lawfulness of which would depend on whether the arrest itself was
lawful.
[8] The second special plea raises prescription relevant to the
period from the date of plaintiffs arrest on 31 August 2000 to
12
March 2001. It is alleged that the cause of action arose on the date
of arrest (being a claim for damages) constituting a debt
as
envisaged in section 10 of the Prescription Act 68 of 1969 (“the
Prescription Act&rdquo
;) and that the claim prior to 12 March 2001
thus became unenforceable. Defendant sought an order accordingly and
in effect by way
of the two special pleas sought dismissal of the
entire claim. Effectively the first special plea dealt with the
period from 1
September 2000, and the second special plea with the
period 31 August 2000 to 12 March 2001.
[9] Put otherwise if the first special plea is successful this would
require plaintiffs claim to be dismissed save for the first
day of
his arrest. If the second special plea is successful the claim for
the first day of arrest would have prescribed even if
the arrest was
an unlawful arrest.
[10] When the matter came before me, plaintiff and defendants legal
teams had agreed that all I would be asked to do would be to
adjudicate the first and second special pleas which should be
separated for hearing in terms of
rule 33
(4), applying for an order
to that effect.
[11] Being satisfied that this was appropriate in the circumstances
such an order issues herewith.
[12] Plaintiff and defendants counsel informed me from the bar that
by agreement the matter was to be determined on the pleadings,
as
read with the
rule 37
minute and the handwritten statements in volume
two of the bundle before me, as also the entire criminal record
admitted by agreement,
neither party intending to adduce any
evidence.
[13] In argument however neither counsel referred to volume two of
the bundle and the record, save to say that the facts which
were
common cause appeared therefrom.
[14] It was common cause that:
14.1 Plaintiff was arrested 31 August 2000;
14.2 Plaintiff appeared before the Humansdorp magistrate on 1
September 2000, where he was represented by attorney Ah- Sheen,
bringing a bail application which was refused;
14.3 Plaintiff was thereafter remanded in custody by order of the
court and detained in custody in terms of orders issued by magistrate
on each occasion through to his discharge at the end of his criminal
proceedings;
14.5 He was released by order of the magistrate on 12 March 2002;
14.6 He was discharged at the end of the state’s case.
THE CAUSE OF ACTION
[15] The cause of action in respect of unlawful arrest and detention
is the
actio iniuriarum
. This consists in the wrongful
deprivation of a person’s liberty and requires neither fault
nor awareness of the wrongfulness
of the arrestors conduct.
[16] An arrest is malicious when the defendant makes improper use of
the legal process to deprive the plaintiff of his or her liberty.
[17] An arrest is
prima facie
wrongful and it is not necessary
to either or allege or prove wrongfulness.
Lombo v African
National Congress
2002 (5) SA 668
(SCA) para 32
.
[18] Despite the nature of the action (unlawful arrest and detention)
plaintiff need not allege the presence of
animus iniuriandi
(being the intention to injure or an awareness of unlawfulness).
Minister of Justice v Hoffmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(a) 154 –
157; Tödt v Ipsr
1993 (3) SA 577
(A) at 586 G – I.
[19] Malicious proceedings, on the other hand, (whilst also the
actio
iniuriarium)
requires of a plaintiff to allege and prove that:
19.1 The defendant set the law in motion (instituted the
proceedings);
19.2 The defendant acted without reasonable and probable cause;
19.3 The defendant acted with malice (or
animo iniuriandi
);
19.4 The prosecution failed.
See
Minister of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA)
.
[20] It is important to note that malice is the
animus
requirement and is not a separate element in malicious proceedings
claims.
[21] It is thus clear that the two separate causes of action,
although based in the same area of delict, have separate requirements
the most important difference being that in the one it is unnecessary
to allege
animus,
whilst in the other it is essential to do
so.
Tödt (supra) at 586 E – G
.
[22] In
Isaacs v Minister Van Wet en Order
1996 (1) SACR 3140
(A)
the court dealt with a matter in which the plaintiffs
causes of action were malicious (or in the alternative unlawful)
arrest and
detention as well as alleged malicious prosecution.
Plaintiff succeeded in proving that he had been unlawfully arrested
and detained
and on appeal appellant challenged the decision on the
basis that the period of his unlawful detention was longer than the
period
the
court a quo had
found it to be. In respect of this
ground the court on appeal found, on the question when the unlawful
detention had ceased, that
this been when the magistrate issued the
detention order in terms of
section 50
(1) of the
Criminal Procedure
Act.
[23
] Put otherwise, the magistrates order for ongoing detention
sanitised the otherwise unlawful arrest, the unlawfulness ceasing at
that moment.
[24] In considering the pleadings in matters where it is alleged that
there has been an unlawful detention one must bear in mind
the
judgement of
Langa CJ in Zealand v Minister of Justice and
Constitutional Development
[2008] ZACC 3
;
2008 (4) SA 458
(cc) at 467 – 469.
Here the Constitutional Court made it clear that the Constitution
enshrines the right to freedom and security of person, including
the
right not to be deprived of freedom arbitrarily or without just
cause, as well as the founding value of freedom. The court
held in
the context of that matter that it was sufficient for the plaintiff
simply to plead that he was “unlawfully detained”.
The
court pointed out that this is not something new in our law and it
had always been firmly established that every interference
with
physical liberty was
prima facie
unlawful.
[25] In
Minister Van Wet and Order v Matshoba
1990 (1) SA 280
(A
) the Supreme Court of Appeal considered exactly what must
be averred by plaintiff complaining of unlawful detention. The court
concluded that it is sufficient for a plaintiff who is in detention
simply to plead that he or she is been held by the defendant.
Justification then rests upon the defendant.
[26] In this matter plaintiff makes sufficient allegations to raise a
cause of action based on the deprivation of his liberty.
[27] I do not understand however
Zealand
to indicate
that such an allegations is sufficient to found a claim for malicious
proceedings or that it is no longer necessary
to plead and prove
malice (
animus iniuriandi
).
[28] That being so, the high water mark of plaintiffs claim in this
matter goes to deprivation of his liberty and not to malicious
proceedings. The claim is solely against defendant and the Department
of Justice has not been joined
[29] Indeed in argument plaintiff’s counsel did not contend the
contrary.
THE SPECIAL PLEAS
[30] It is against this background that two special pleas must be
considered.
[31] The central question in the deprivation of liberty argument in
respect of the first special plea is whether the order of the
magistrate dismissing the bail application and detaining the
plaintiff by order of court, sanitised what might otherwise be found
in due course to have been a wrongful and unlawful arrest without
warrant.
[32] Counsel made it clear in argument that I need not deal with the
first day of the arrest in respect of the first special plea
but only
with the issue concerning the effect of the magistrates order on that
claim arising from deprivation of liberty. As appears
from
Minister
of Safety and Security v Sekhoto
2011 (5) SA 367
(SCA) at 383
the power to arrest may be exercised only for the purpose of bringing
the suspect to justice the arrest being only one step in
that
process. Once an arrest has been effected the peace officer must
bring the arrestee before a court as soon as reasonably possible;
and
at least within forty eight hours, depending on the court hours. Once
that has been done, the authority to detain that is inherent
in the
power to arrest is exhausted. The authority to detain the suspect
further is then within the discretion of the court.
[33] The discretion of the court to order the release or further
detention of the suspect the court pointed out, is subject to
why
wide ranging, and in some cases stringent statutory directions. The
Criminal Procedure Act said
the court required a judicial evaluation
to determine whether it is in the interests of justice to grant bail.
Whilst the purpose
of arrest is to bring the suspect to trial the
arrestor, said the court, had a limited role in that process and was
not called
upon to determine whether the suspect ought to be detained
pending the trial. That is the role of the court once the arrestee is
brought to court.
[34] Applying these principles and those in
Isaacs (supra)
I am bound to find that upon the magistrate refusing bail and
ordering the further detention of the plaintiff, any unlawfulness
in
the arrest (which may or may not be shown to exist in due course)
becomes irrelevant and the unlawful detention (if same existed)
ceases. Counsel could refer me to no more recent authority overtaking
Isaacs
case and I could find none.
[35] Of course, this would not deprive a plaintiff, where a matter
has been suitably pleaded, to a cause of action arising in malicious
proceedings if the appropriate defendant could be shown to have
satisfied the requirements thereof, in particular, acting without
reasonable and probable cause with malice.
[36] As I understand it, in those circumstances the magistrates order
does not deprive the plaintiff of a claim against the relevant
defendants.
[37] As I have already concluded in this matter, that the high water
mark of plaintiffs claim is a claim of deprivation of liberty,
and
does not extend to malicious proceedings, the first special plea must
inevitably be upheld, plaintiffs claim for the period
1 September
2000 to the date of his release being accordingly lawful and in terms
of a warrant issued by the magistrate from time
to time.
[38] This leaves the second special plea for adjudication which in
the light of my finding in the first instance, remains relevant
only
to the first day of the detention. Alternatively if my finding on the
first special plea is incorrect, the second special
plea is
applicable to the period from the first day of detention to 12 March
2001.
[39] Chapter 3 of the
Prescription Act applies
to the prescription of
debts for which organs of state are liable (“debts”)
there being no distinction in respect of
chapter III of the
Prescription Act between
these kind of debts and other debts, with
regard to when prescription begins to run, the period of
prescription, delay in completion,
and interruption of prescription.
Act 40 of 2002 section 2; Minister of Finance v Gore NO
2007
(1) SA 111
(SCA).
[40] It is trite that such a debt may not be regarded as being due
until the creditor has knowledge of the identity of the organ
of
state relevant and the facts that gave rise to the debt. A creditor
is regarded as having acquired this knowledge as soon as
it could
have been acquired through the exercise of reasonable care unless the
organ of state wilfully prevented the creditor from
acquiring such
knowledge.
Sibiya v Premier of the Province of Kwazulu-Natal
[2008] 1 All SA 2950).
[41] It is clear from the pleadings and minute, that the debt in this
matter from the point of view of prescription would have
arisen at
the moment of arrest as the plaintiff would have known of the alleged
wrongfulness thereof immediately and of course
of the identity of the
intended defendant.
[42] The only question is whether there is any delay in completion or
the interruption of prescription.
[43] Having regard to the second special plea, and the fact that the
dates of the cause of action arising and the issue and service
of
summons of common cause, the only issue relevant is delay or
interruption of prescription alternatively some other cause which
would have saved the plaintiff within the period referred to.
[44] Whilst plaintiff’s counsel contended from the bar that
there was such a circumstance arising from the unlawful arrest
and
the fact that plaintiff had been detained for the period alleged,
being either as I understood it an inability to proceed,
or being
psychologically prevented from doing so.
[45] None of this was raised in replication to the second special
plea, no replication being filed. Defendants counsel correctly
pointed out that this constituted a failure to plead the necessary,
and to which defendants counsel at all times timousely objected.
[46] In the light hereof and plaintiff having made no attempt to
introduce any replication I am bound to adjudicate the matter
on the
pleadings as they stand.
[47] Not only is there nothing before me relevant to plaintiffs
attempted argument in this regard, nothing in this regard was pleaded
and there is nothing on the facts placed before me in argument to
suggest that plaintiff was prevented by superior force from
proceeding, justifying any arguable delay in the completion of
prescription as set out in
section 13
(1) of the
Prescription Act.
Counsel
for the plaintiffs referred to no authority in this regard
save
Van Zijl v Hooggenout
2005 (2) SA 93
(SCA)
to
which he referred very briefly. I should point out that plaintiff’s
counsel did not contend or point me to anything in
the record to
substantiate this – referring only to the pleadings and the
fact that plaintiff had been held in custody. No
facts relevant were
pleaded in replication. The kind of situation referred to in
Lombo
finds no factual basis or substantiation on the pleadings in this
matter and apart from referring to paragraph 3.2 of the particulars
of claim, plaintiff’s counsel refers to none. The plaintiff’s
incarceration alone is insufficient to support such argument
and
nothing beyond this is pleaded.
THE ORDER
[48] In the result, I find that both special pleas succeed and I make
the following order:
48.1 The first and second special pleas raised by defendant are to be
decided separately in terms of rule 33 (4) these being separated
from
the remainder of the cause of action accordingly;
48.2 The first special plea succeeds, plaintiffs claim in respect of
his detention for the period 1 September 2000 to the date
of his
release being dismissed;
48.3 The defendant’s second special plea succeeds, plaintiffs
claim in respect of his arrest and detention prior to 12 March
2001
being dismissed;
48.4 Plaintiff is to pay defendants cost of suit relevant to the
first and second plea.
_________________________
M.J. LOWE
JUDGE OF THE HIGH COURT
Obo the Applicant/Plaintiff: Adv Skepe
Instructed by: Naidoo & Paulsen Attorneys
182 Standford Road – Korsten
Port Elizabeth, 6020
Obo the Respondent/Defendant: Adv Pretorius
Instructed by: C/O State Attorney
29 Western Road – Central
Port Elizabeth, 6001