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[2019] ZAECPEHC 81
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Antoni and Another v Minister of Police (1770;1771/12) [2019] ZAECPEHC 81 (6 December 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
Nos.:
1770 &1771/12
(Consolidated
by Order of this Court dated 3 February 2015)
In
the matter between:
LOYISO
ANTONI
First Plaintiff
SANDISWE
TWENI
Second Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
(Special Plea on Prescription)
NTSEPE
AJ:
1.
This is a special plea on prescription placed before me, by agreement
between the parties, for
separate adjudication in terms of Rule 33
(4). The separation has been duly ordered.
2.
The parties prepared a stated case upon which the special plea is to
be determined.
3.
The Plaintiffs instituted action against the Defendant for damages
arising from an alleged unlawful
arrest, assault and detention.
The defendant delivered its special plea wherein it raised that the
Plaintiffs’ claims,
in
toto
,
have been extinguished by prescription in terms of section 1 (d) of
the Prescription Act 68 of 1969 (the
Prescription Act). In
the
replication delivered on 12 December 2018, the Plaintiffs denied that
the claims had prescribed; a position they held until
the date of the
hearing being 5 December 2019.
4.
Shortly before the commencement of the hearing, the Plaintiffs
conceded that their claims for unlawful
arrest, assault and the
unlawful detention for the period 16 February 2009 up to 5 June 2009
has prescribed rendering the Defendant
partly successful on the
special plea. The converse, of course, is that the Plaintiffs
are similarly successfully having
defended a substantial portion of
their claim against the defendant’s special plea.
5.
It is trite law that costs are ordinarily awarded to the successful
party unless there are good
grounds for departure. Success is
defined by substance and not form. A Court may, however, order that
each party pay its
own cost if it is fair and just to do so. (
DE
v RH
2015 (5) SA 83
(CC) at 105
D-E.)
6.
The Defendant contends that it is the successful party as a
substantial portion of its special
plea has been conceded.
Similarly, Counsel for the Plaintiffs argued that the Plaintiffs have
successfully opposed the special
plea in respect of their claim for
unlawful detention, being a period of approximately 1 year and 8
months which remains enforceable
against the Defendant. It was
further submitted that the Plaintiffs’ claim for the remaining
period of detention i.e.
6 June 2009 to 9 March 2011 is a substantial
period which if quantified in monetary terms, would entitle them,
should they prove
same in due course, to a substantial monetary
award.
7.
It seems to me that both parties have been successful. However, in
the circumstances of this case
it is impractical to find that either
of the parties were substantially successful as against each other.
This is due to the nature
of the rights affected herein which relate
to substantial and constitutionally guaranteed rights. To amplify
this point, both parties
have succeeded on issues of equal
importance. The defendant having established that the claim for
arrest, assault and part of the
detention were extinguished and the
plaintiffs having established a substantial portion of the detention
claim is enforceable against
the Defendant. It needs no further
mention that arrest, assault and detention effect and/or deal with
rights that are enshrined
in the Bill of Rights.
[1]
In all these circumstances it is fair and just to make an order that
each party carry its own costs.
8.
In the result I make the following order.
(a)
The Defendant’s special plea is relation to Plaintiffs’
claims
for unlawful arrest, assault and detention for the period 16
February 2009 up to 5 June 2009 is upheld.
(b)
The defendant’s special plea in relation to Plaintiff’s
claims
for further detention from 5 June 2009 is dismissed.
(c)
That each party must pay its own costs.
_____________________
N
NTSEPE
Acting
Judge of the High Court of South Africa
Appearances
:
Counsel
for the Plaintiffs’: Adv A Beyleveld (SC), Instructed by Lulama
Prince & Associates
Counsel
for the Defendant: Adv NW Gqamana (SC) with Adv T Zietsman,
Instructed by State Attorneys
Date
heard:
5 December 2019
Judgment
delivered:
6 December 2019
[1]
See
sections 10, 12 and 14 of The Constitution of the Republic of South
Africa, Act 108 of 1996.