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[2013] ZAECPEHC 32
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Windvogel v Minister of Police (3019/12) [2013] ZAECPEHC 32 (28 June 2013)
3
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
Case No.3019/12
Date Heard: 27/6/13
Date Delivered:
28/6/13
Not Reportable
In the matter between:
FRANCOIS EDWARD
WINDVOGEL
..................................................................
Plaintiff
and
MINISTER OF POLICE
...................................................................................
Defendant
Civil procedure –
exceptions taken to defendant’s plea on basis of being vague
and embarrassing – rules 18(4)
and (5) - failure of paragraphs
4.1 to 4.5 of plea to contain clear and concise statement of material
facts and to answer the point
of substance – exceptions to
above paragraphs upheld with costs
JUDGMENT
PLASKET, J:
[1] The plaintiff, who
instituted a damages claim against the defendant for unlawful arrest
and detention as well as an unlawful
assault upon him, perpetrated,
he says, by employees of the defendant acting within the course and
scope of their employment as
policemen, has taken a number of
exceptions to the defendant’s plea. They relate only to the
claim in respect of unlawful
arrest and detention. The defendant,
while initially opposing the exceptions, has now withdrawn that
opposition and so, in effect,
abides the court’s decision.
[2] In his particulars of
claim, th plaintiff alleges that he was arrested without warrant by
members of the South African Police
Service (the SAPS) on 24 October
2010 and that he was detained for a period of 25 hours before being
released on bail. He alleges
that his arrest was unlawful because the
members of the SAPS who arrested him did not entertain a reasonable
suspicion that he
had ‘committed an offence, whether in their
presence or otherwise’ and that, even if they had formed a
reasonable suspicion,
they ‘failed to exercise their discretion
to arrest and detain the Plaintiff reasonably and rationally and
that, consequently,
such discretion was exercised unlawfully . . .’.
[3] To these allegations,
the defendant pleaded, in paragraph 4 of its plea-over (it having
also taken a special plea that is not
relevant to this judgment):
‘
The
Defendant admits only that:
4.1 The Plaintiff was arrested by
members of the South African Police Services on 24 October 2010 at
Port Elizabeth on a reasonable
suspicion that he had committed and/or
attempted to commit an offence Malicious Damage to Property under
Docket Cas No. 592/10/2010.
4.2 Plaintiff was lawfully arrested
and detained without a warrant of arrest in terms of the provisions
of section 40(1)(b) alternatively
section 40(1)(a)
of the
Criminal
Procedure Act of 1977
as amended;
4.3 The relevant peace officer acted
in line with the provisions of section 205(3) of the Constitution of
RSA, as amended;
4.4 The Defendant contends further
that the subsequent detention and/or deprivation of the Plaintiff’s
liberty was lawful
in terms of section 50(1) as read with
section
39(3)
of the
Criminal Procedure Act as
amended
alternatively
was an act of law;
4.5 The relevant arresting officer
exercised his discretion properly, lawfully and within the bounds of
rationality;
4.6 Save for the above admissions the
Defendant denies further contents hereof and puts Plaintiff to the
proof thereof.’
[4] The plaintiff excepts
to paragraphs 4.1 to 4.5 of the plea on the basis that these
paragraphs are vague and embarrassing or
lack averments which are
necessary to sustain a defence. In essence, it is the plaintiff’s
argument that paragraphs 4.1 to
4.5 of the plea are excipiable
because they do not comply with
rules 18(4)
and
18
(5) of the uniform
rules.
[5] These rules provide:
‘
(4) Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.
(5) When in any pleading a party
denies an allegation of fact in the previous pleading of the opposite
party, he shall not do so
evasively, but shall answer the point of
substance.’
[6] It has been stated
that proper pleading involves pleading statements of fact, rather
than law, facts that are material only,
facts rather than evidence
and facts in summary form.
1
As is expressly stated in
rule 18(4)
, those facts must be pleaded with sufficient particularity
to enable a party to reply to them. Statements of opinion or
conclusions
have no place in pleadings. In
Buchner
& another v Johannesburg Consolidated Investment Co Ltd
2
De Klerk J, after
referring to
rule 18(4)
set out the position thus:
‘
The
necessity to plead material facts does not have its origin in this
Rule. It is fundamental to the judicial process that the
facts have
to be established. The Court, on the established facts, then applies
the rules of law and draws conclusions as regards
the rights and
obligations of the parties and gives judgment. A summons which
propounds the plaintiff's own conclusions and opinions
instead of the
material facts is defective. Such a summons does not set out a cause
of action. It would be wrong if a Court were
to endorse a plaintiff's
opinion by elevating it to a judgment without first scrutinising the
facts upon which the opinion is based.’
[7] It is apparent from
paragraph 4.1 that no particularity is provided as to when on 24
October 2010 and where in Port Elizabeth
the arrest that is referred
to occurred and no clear and concise statement of the material facts
forms part of the paragraph as
to what it is alleged the plaintiff
did in order to commit the offence of malicious injury to property or
to attempt to commit
that offence. The problem is compounded in
paragraph 4.2 because the defendant pleads that the arrest is either
justified by
s 40(1)(b)
or by
s 40(1)(a)
of the
Criminal Procedure
Act 51 of 1977
. These sections authorise peace officers to arrest in
different circumstances namely, in the case of
s 40(1)(b)
, when the
peace officer reasonably suspects that the arrestee has committed a
Schedule 1 offence
3
and, in the case of
s
40(1)(a)
, when the arrestee commits or attempts to commit an offence
in the presence of the peace officer. No facts are pleaded in this
regard to justify either or both of the alternative conclusions that
are pleaded. The same can be said of paragraph 4.5: it is simply
a
bald conclusion, not based on any material facts, that the arresting
member’s discretion to arrest was not exercised unreasonably
or
irrationally – and hence unlawfully. I accordingly conclude
that the exceptions taken to paragraphs 4.1, 4.2 and 4.5 of
the plea
are well-taken.
[8] Paragraph 4.3 is to
the effect that the arresting policeman ‘acted in line with the
provisions of section 205(3) of the
Constitution’. This section
deals with the objects of the SAPS which are to ‘prevent,
combat and investigate crime,
to maintain public order, to protect
and secure the inhabitants of the Republic and their property, and to
uphold and enforce the
law’. Paragraph 4.4 is to the effect
that after the arrest, the plaintiff’s detention was lawful in
terms of s 50(1)
and
s 39(3)
of the
Criminal Procedure Act. The
references to all three of these statutory provisions that are
referred to in paragraphs 4.3 and 4.4 amount to legal conclusions
but
they are not based on any material facts because none are pleaded in
paragraphs 4.1, 4.2 and 4.5. They are, as a result, also
excipiable.
[9] In the result, the
following order is made.
(a) The plaintiff’s
exceptions to paragraphs 4.1 to 4.5 of the defendant’s plea are
upheld with costs.
(b) The defendant is
granted leave to amend paragraph 4 of his plea within ten days of the
date of this judgment.
_________________
C Plasket
Judge of the High Court
Appearances:
Plaintiff: Ms I Bands,
instructed by G P van Rhyn, Minnaar and Co Inc, Uitenhage and Struwig
Hattingh Attorneys, Port Elizabeth
Defendant: No appearance
1
Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
(5
ed) Vol 1: 2009 at 565. See too H J Erasmus and D E Van Loggerenberg
Superior Court Practice
:
1994 at B1-129 to B1-130B; D R Harms
Civil
Procedure in the Supreme Court
:
1990 at B-140 to B-141.
2
Buchner
& another v Johannesburg Consolidated Investment Co Ltd
1995 (1) SA 215
(T) at 216I-J.
3
Malicious
injury to property is an offence referred to in Schedule 1 and the
schedule includes an attempt to commit any of the
listed offences.
An attempt to commit malicious injury to property is thus an offence
that falls within Schedule 1.