Nkwahla v Minister of People and Others (1874/2017) [2021] ZAECPEHC 39 (20 July 2021)

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[2021] ZAECPEHC 39
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Nkwahla v Minister of People and Others (1874/2017) [2021] ZAECPEHC 39 (20 July 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 1874/2017
In
the matter between:
NTABANKULU
NKWAHLA

Plaintiff
And
THE
MINISTER OF POLICE
First
Defendant
THE
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES

Second Defendant
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Third
Defendant
JUDGMENT
Govindjee
AJ:
Background
[1]
The plaintiff was arrested by a member of the South African
Police
Service (SAPS) on 7 December 2009 for the alleged rape of a child,
who was his stepdaughter. He was detained from 7 December
2009 until
18 December 2009, when he was released on free bail. The plaintiff
was convicted on two counts of rape and sentenced,
on 1 April 2014,
to seven years on each count, to run concurrently. He was acquitted
on appeal on 9 September 2015 and released from
custody.
[2]
The plaintiff initially instituted claims against the defendants
for
unlawful arrest and detention, malicious prosecution and loss of
income. The loss of income claim was subsequently withdrawn.
The
special plea
[3]
The defendants raised a special plea of prescription to the
plaintiff’s claim for unlawful arrest and detention.  That
defence was partly upheld. The plaintiff’s claim for the arrest
on
7 December 2009 and his detention thereafter until 18 December 2009
was held to have prescribed in terms of section 11
(d)
of the
Prescription Act. The plaintiff’s claim for the further detention
from 1 April 2014 was found not to have prescribed in
its entirety:
only that portion between 1 April 2014 and 29 May 2014 had prescribed
and the claim for unlawful detention between
30 May 2014 and 29
September 2015 had not prescribed in terms of the Prescription Act.
In the circumstances, and with due regard
to Rule 33(5), the issue of
costs was reserved for later determination.
[4]
For
the sake of completeness, the reasons provided for these conclusions
are now repeated. The parties agreed to submit a stated case,
in
terms of Rule 33 of the Uniform Rules of Court, on the following
statement of agreed facts:
[1]
[5]
The plaintiff was arrested by a member of the South African
Police
Service on 7 December 2009 for the rape of a child, his stepdaughter.
He was detained from 7 – 18 December 2009 when he
was released on
free bail and was legally represented by Ms Britz.
a.   The
criminal trial commenced on 10 September 2011 (the docket having been
received on 2 June 2011) and the plaintiff
was represented by Mr
Ntsilatana. Various witnesses testified. He was convicted on two
counts of rape and sentenced, on 1 April 2014,
to seven years on each
count, to run concurrently.
b.   The
plaintiff was acquitted on appeal on 9 September 2015 and released
from custody.
c.   It is
accepted that the plaintiff was not legally educated and lacked the
finances to instruct attorneys. His present
legal representatives
have assisted him on a contingency fee basis since 17 February 2017.
[6]
The issue to be decided is whether the plaintiff’s claim for
arrest
on 7 December 2009 and his subsequent detention until 18 December
2009 has prescribed; and whether the plaintiff’s claim
for the
further detention between 1 April 2014 and 29 May 2015 has also
prescribed in terms of section 11
(d)
of the Prescription Act,
1969 (Act 68 of 1969).
[7]
The plaintiff contends as follows:
a.
he
could only institute his claim once his appeal was successful and his
conviction and sentence set aside in terms of the principles
set out
in
Njongi
v MEC for Social Development
;
[2]
b.
that the defendants waived their right to claim prescription when
they condoned
the late filing of a notice in terms of s 3(4)
(b)
of
the Institution of Legal Proceedings Against Certain Organs of State
Act; and
c.
in terms of
s 12(3)
of the
Prescription Act ‘the
only period that
the plaintiff took into account of his personal circumstances that he
could be deemed to have personal knowledge
of the identity and the
facts from which the debt arises, is when he was released from prison
and consulted with his legal representative
which was on 12 February
2017’ (
sic
).
[8]
The defendants’ special pleas rely on the service of summons
more
than three years after the date on which the debt for the initial
arrest and detention fell due, so that it is suggested that
the
entire claim in that regard has prescribed. In addition, it was
argued that the claim based on the further detention, alternatively
at least that portion between 1 April 2014 and 29 May 2014, should
suffer the same fate.
The
reliance on administrative action and
Njongi
[9]
The plaintiff replicated to the special plea in the following
terms:
a.
the decision to arrest and to further detain the plaintiff, which
resulted
in the plaintiff suffering damages as claimed in the
particulars of claim, is an administrative action, within the meaning
of section
1 of the Promotion of Administrative Justice Act, 2002
(Act 3 of 2002);
b.
until such invalid administrative action is set aside by a court or
is disavowed
by the decision maker, the plaintiff could not
successfully claim damages arising from such invalid administrative
action; and
c.
in terms of the principles set out in
Njongi
, the date on
which the debt fell due is the date on which the arrest and detention
of the plaintiff was declared by the court to
be unlawful (ie 9
September 2015).
[10]
It was
correctly conceded during argument that this approach and the
reliance on
Njongi
,
in particular, was misplaced. That case dealt with the situation
where social grants had been terminated by unlawful administrative
action that had not yet been set aside on review. The debt was
considered to become due should the provincial government expressly
disavow reliance on unlawful administrative action, which had not
occurred so that the running of prescription had not yet started
in
that instance. In any event, I have serious misgivings as to whether
or not the arrest constituted administrative action for purposes
of
PAJA being applicable. The issue does not appear to have been
definitely decided. In
Minister
of Safety and Security v Sekhoto and Another
[3]
(and with reference to
Greys
Marine Hout Bay (Pty) Ltd v Minister of Public Works
),
[4]
Harms JA held as follows:
‘
This court has
accepted that these traditional common-law grounds of review should
be used to test the legality of the exercise of
discretion to arrest’
(at para 35) and ‘Although this approach tends to suggest that the
‘executive discretion’ of a peace
officer is ‘administrative’
and may therefore be regulated by s 33 of the Bill of Rights, which
guarantees the right to just
administrative action, I am somewhat
loath to hold as much simply because it could mean that the
provisions of PAJA would apply and
this could imply that if the
discretion was ‘incorrectly’ exercised the claimant would only in
exceptional circumstances be entitled
to ‘compensation’ and not
damages.’
[11]
The
conduct of the Magistrate in convicting and sentencing the plaintiff
cannot be the administrative action relied upon for purposes
of this
argument. Cases have confirmed that administrative action does not
extend to the ordinary exercise of judicial powers.
[5]
Even assuming that the conduct of the arresting officer and those
responsible for detention constituted administrative action, the
link
between requiring that conduct to be set aside prior to launching a
delictual claim, for purposes of avoiding prescription was
unexplained.
Njongi
dealt with administrative action that remained effective, and is
certainly no support for that proposition. In this case the arrest
and initial detention ceased when the plaintiff was released on free
bail on 18 December 2009. The subsequent detention followed
the
conviction and sentence imposed by the magistrate. In addition,
Njongi
read correctly, confirms that:
[6]
‘
the reality is
that the creditor has little or no control over the date on which
prescription commences. She is obliged to make an
application to set
aside the administrative action concerned within a reasonable time.
It is a court, not the creditor, that determines
whether the time
within which a claim is brought is reasonable, or not. Moreover it is
the court that decides whether the lateness,
if unreasonable, must be
condoned. If a court finds that the period is unreasonable and that
the delay in bringing the proceedings
should not be condoned, the
applicant cannot take the matter any further. She would have lost her
case and the underlying debt would
be unclaimable. This consequence
would follow even if the three-year period of prescription had not
yet expired… This does not
mean, however, that every action must be
set aside before a debt can fall due for the purposes of the
Prescription Act…’
[12]
There
was, in any event, no effort whatsoever to challenge the arrest and
initial detention by seeking to set that aside using administrative
law or PAJA.
[7]
The effect of
the High Court judgment overturning the conviction and sentence
resulted in the magistrate’s decision in that regard
being
replaced, so that the conviction and sentence may be treated as
having not occurred. In the circumstances, the same cannot
be said
for the alleged wrongful arrest and subsequent detention, and
certainly not based on some tenuous link with PAJA.
The
section 12(3) contention
[13]
The
judgment of Eksteen J (as he then was) in
Thompson
and Another v Minister of Police and Another
[8]
is particularly instructive in considering when the alleged debt
became due, for purposes of prescription. That case also involved
a
claim for damages for wrongful arrest, which was met with a special
plea of prescription. The court distinguished between claims
based on
malicious arrest, malicious prosecution or malicious execution, as
opposed to cases based on wrongful arrest, for purposes
of
considering the special plea. The court confirmed that in an action
for malicious prosecution, malicious arrest and detention,
the cause
of action only arose upon the judgment of the court allowing an
appeal against a conviction in the magistrate’s court.
In respect
of a wrongful arrest claim, however, the position is different, and
was described as follows:
[9]
‘
There the delict
is committed by the illegal arrest of the plaintiff without the due
process of the law. Improper motive or want of
reasonable and
probable cause required for malicious arrest have no legal relevance
to this cause of action. It is also irrelevant
whether any
prosecution ensues subsequent to the arrest; and, even if it does,
what the outcome of that prosecution is. The injury
lies in the
arrest without legal justification, and the cause of action arises as
soon as that illegal arrest has been made.’
[14]
Similarly,
the plaintiff, in this case, cannot point to any element of his cause
of action pertaining to the initial arrest and detention
which only
came into existence less than three years before the institution of
the proceedings.
[10]
That
alleged delict was committed when the conduct that is the cause of
that complaint occurred, so that all damage resulting from
that
conduct, whether ‘already realised or … merely prospective’
could be claimed.
[11]
As will
be discussed below, the detention subsequent to the magistrate
passing sentence is also of a continuing nature so that at
least the
bulk of that period cannot be said to have prescribed.
[12]
The position in respect of the alleged malicious prosecution is
clearly different.
[13]
[15]
It is
trite that prescription, for purposes of the
Prescription Act, begins
to run as soon as the debt is due.
[14]
This clearly includes a delictual debt.
[15]
A debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which the
debt
arises.
[16]
In terms of the
proviso to
s12(3)
, a creditor shall be deemed to have such knowledge
if he could have acquired it by exercising reasonable care.
[16]
As
counsel pointed out,
s12(3)
of the
Prescription Act requires
a
creditor to do no more than what could reasonably be expected in the
circumstances of a reasonable person.
[17]
The underlying object is to ensure that it is negligent, rather than
innocent, inaction that is penalised. Prescription is not intended
to
serve as a ‘blunt instrument to achieve finality regardless of the
circumstances of the creditor’.
[18]
[17]
In
this instance the court is not faced with a person suffering physical
disabilities or
non
compos mentis
.
[19]
Even considering some measure of equitability
[20]
The defendants have successfully alleged and proven that the
plaintiff had, or ought to have had, the requisite knowledge sometime
between 18 December 2009 and 2 June 2011, when copies of the docket
were received. Support for this conclusion is to be found in
the
majority judgment of Zondo J (as he then was) in
Mtokonya
:
[21]
‘
After all he was
the one who had been arrested, detained and, according to him, also
assaulted by the police. Therefore, when one
talks about lack of
knowledge of the existence of the debt in this case one is not, it
must be remembered, talking of a debt that
is based on a contract
that the creditor might not be aware of for one reason or another.’
[18]
The
plaintiff’s suggestion appears to be that his personal
circumstances were such that he could not have had ‘personal
knowledge
of the identity and the facts from which the debt arises…’
As
Mtokonya
confirms, there is simply no proper basis for such a finding.
Plaintiff’s counsel’s contention effectively boils down to the
suggestion that the plaintiff was uninformed about the possibility of
a legal claim until he consulted with his current legal
representatives
sometime in February 2017, despite having had other
legal representation previously. The plaintiff, in this case, was
free between
18 December 2009 and 1 April 2014, and seemingly with
access to a legal representative. He had spent time in custody and
knew that
it was the first defendant’s employees, at least, that
had caused his arrest and detention. The exercise of a modicum of
reasonable
care, which
s 12(3)
provides for, would have overcome this
alleged barrier.
S 12(3)
does not require the creditor to have
knowledge of any right to sue the debtor, nor does it require him or
her to have knowledge
of legal conclusions that may be drawn from
‘the facts from which the debt arises’.
[22]
As
Eskom
suggests, grave absurdity would result were this not the case.
[23]
[19]
In
Yellow
Star Properties
,
[24]
it was argued that, by reason of
section 12(3)
, prescription had
begun to run only once the High Court had delivered a judgment to the
effect that a sale was invalid because, until
then, the applicant in
that case could not have known that the sale was invalid. The SCA
rejected this contention confirming that
failure to appreciate legal
consequences flowing from the facts did not result in a delay to the
commencement of prescription.
[20]
As in
Mtokonya
,
it cannot be said that the true issue in dispute in this instance
relates to an uninformed person’s lack of knowledge of the identity
of a debtor.
[25]
Even if that
has been argued in the manner in which para 12.3 of the stated case
has been phrased, there appears to be no basis for
such a finding,
unlike the case of
Shenge
.
[26]
There does not appear to be any proper basis for suggesting that a
strict interpretation of the prescription legislation would result
in
injustice in this instance.
[27]
[21]
To
hold otherwise on the strength of the papers before me ‘would
render our law of prescription so ineffective that it may as well
be
abolished’.
[28]
As the
majority concluded in
Mtokonya
:
[29]
‘
I say this
because prescription would, for all intents and purposes, not run
against people who have no legal training at all. That
includes not
only people who are not formally educated but also those who are
professionals in non-legal professions…The percentage
of people in
the South African population against whom prescription would not run
when they have claims to pursue in the courts would
be unacceptably
high.’
Waiver
[22]
The
final basis relied upon by the plaintiff is waiver. Did the second
and third defendants waive their right to raise a special plea
of
prescription because they consented to an Order of Court condoning
the late filing of a notice in terms of s3 of the Institution
of
Legal Proceedings Against Organs of State Act, 2002?
[30]
[23]
S 3(4) of that Act provides that a Court may grant an application for
condonation,
inter alia
, if the debt has not been extinguished
by prescription. The plaintiff suggests that the defendants’
consent to an order for condonation
(in respect of the notice letter
required in terms of the Institution of Legal Proceedings Act) on 21
February 2020, results in their
acceptance that the entire claim had
not prescribed.
[24]
That argument appears to me to be misguided. The Institution of Legal
Proceedings Act
recognises, in its preamble, that the
Prescription
Act is
the cornerstone of the laws regulating the extinction of debts
by prescription, and confirms that the provisions of Ch III of the
Prescription Act are
applicable to all debts (preamble). Its primary
aim is to create harmony in respect of the pre-existing different
notice periods
for institution of legal proceedings against certain
organs of state, by replacing those notice periods with a uniform
notice period.
[25]
S 2(2)(b) of the Institution of Legal Proceedings Act provides that a
debt which became
due after the fixed date will be extinguished by
prescription as contemplated in Ch III of the
Prescription Act, 1969
,
read with the provisions of that Act relating thereto. In so far as
the notice of intended legal proceedings to be given to certain
organs of state, it is so that a court may grant an application for
condonation if certain requirements exist. One of those is that
the
court should be satisfied that ‘the debt has not been extinguished
by prescription’.
[26]
In this case the defendants contend that part of the plaintiff’s
claim has prescribed
(which this judgment has confirmed is the case).
Is that prescription saved by the defendants having consented to
condonation of
the plaintiff’s failure to timeously give notice of
its intention to institute its delictual claims? Should the
defendants have
applied, for example, to set aside the order granting
condonation because of its part-prescription defence?
[27]
The
case of
Premier
Attraction 300 CC t/a Premier Security v City of Cape Town
[31]
appears to confirm the answer to this argument. In that case, the
court found that a portion of the applicant’s claim had prescribed
and that that portion of the claim must fail. The applicant had
purported to send a notice advising the respondent of the institution
of legal proceedings a day before it launched its application. The
respondent took the point that the notice had not been served
on the
relevant organ of state within six months from the date on which the
debt became due and that condonation was required.
[32]
The applicant belatedly sought condonation at the commencement of the
hearing (despite having been given the opportunity to do so
prior to
that time). The court noted that its finding in respect of
part-prescription meant that part of the claim had not prescribed.
It
had no difficulty in applying the other requirements in section 3(4)
(namely good cause and consideration of the issue of prejudice)
in
granting condonation, despite the application having been launched at
‘the proverbial thirteenth hour’.
[28]
The judgment confirms, in effect, that condonation for non-compliance
with the Institution
of Legal Proceedings Act is possible in cases
where only part-prescription is at play, so that the issue of waiver
cannot succeed.
In any event, the issue of waiver must be considered
objectively and based on its outward manifestations. The outstanding
manifestations
can consist of words; or some other form of conduct
from which the intention to waive is inferred; or even of inaction of
silence
the duty to act or speak exist. There is ultimately nothing
to show that the defendants either expressly or by conduct waived or
agreed to abandon the prescription point, and their consent to the
condonation of the lateness of the notice of institution of legal
proceedings cannot constrain them given that it is accepted that at
least part of the plaintiff’s claim had not prescribed. This
court
need not decide what the position is or would be had condonation been
erroneously granted for the institution of proceedings
in a case
where the entire claim was alleged to have or in fact had prescribed.
The
claim based on detention post-sentence
[29]
As
suggested above, there is a distinction to be drawn between a single,
completed wrongful act, with or without continuing injurious
effects,
such as a blow against the head, on the one hand, and a continuous
wrong in the course of being committed, on the other.
While the
former gives rise to a single debt, the approach to the latter is to
view this as a series of debts arising from moment
to moment, as long
as the wrongful conduct endures.
[33]
In the case of a ‘continuous wrong’, the statutory limitation
provision operates, as time runs, to whittle away the enforceability
of portions of the claim for damages arising from that cause until
the expiry of the complete period for prescription, so that the
right
of action then becomes worthless for practical purposes.
[34]
This approach is confirmed by the judgment in
Lombo
:
[35]
‘
The appellant’s
position is somewhat different in regard to his claim for unlawful
detention. His cause of action in this respect
did not arise once and
for all on the day he was first detained, nor did it first arise on
the day of his release from detention.
His continuing unlawful
detention (if such it was) would notionally have given rise to a
separate cause of action for each day he
was so detained…the
three-year prescriptive period provided in s 11
(d)
of the Act
preserved any claim for unlawful detention arising within the period
of three years preceding the service of summons on
22 November 1993.
His claim for unlawful detention for the period 23 November 1990
until his release in August 1991 would therefore
still be extant. Any
claim for wrongful detention arising before 23 November 1990 will
have been extinguished by prescription in
accordance with the
principles enunciated above.’
[30]
On the strength of this authority, that portion of the plaintiff’s
claim based on
his detention between 1 April 2014 to 29 May 2014 has
also prescribed.
Withdrawal
of action against the first defendant
[31]
Following the decision in respect of the special plea, the action
against the first
defendant was withdrawn, with each party to pay its
own costs by agreement.
The
plaintiff’s evidence
[32]
The plaintiff testified first, by agreement. He explained that he
could read and write
but had a low level of education. He had been
working at Cash Crusaders in Uitenhage for four years prior to his
arrest. This occurred
at 10pm on 7 December 2009. Two police officers
had arrived together with the complainant (Nonelela) and his wife
(Mazomba), and
informed him that he was accused of raping Nonelela.
The plaintiff remains married to Mazomba but no longer resides with
her.
[33]
The plaintiff spent a few days incarcerated at the Motherwell Police
Station. He was
released on 18 December 2009 on free bail, once he
had informed the magistrate that he could stay at his parental home.
He was found
guilty and sentenced as described above during 2014.
[34]
The plaintiff confirmed that Mazomba, Nonelela, his child (Vuyiseka)
and Nonelela’s
boyfriend had testified during his trial. He alleged
that Vuyiseka had been told to say that she had witnessed him
sleeping with
Nonelela. She had explained this in court, which had
made the prosecutor angry. It was also said that he had threatened
Vuyiseka,
even though he had not been with her during that time.
Mazomba and their children had been taken to Qonce (King
Williams’
Town) and they were escorted to and from court to prevent
the plaintiff from talking to them. Vuyiseka had testified from a
separate,
glassed space. His attorney, who was not called to testify,
had told him that the prosecutor had shouted at Mazomba and Vuyiseka
at some time during the proceedings.
[35]
Following sentence, the plaintiff had been incarcerated at St Albans,
where the conditions
were bad. He had avoided the fighting that took
place there and was not robbed. He had, however, been manhandled and,
after approximately
two months, had been told to stay on the hospital
side of the prison, from where he processed his appeal personally.
The conditions
in that part of the prison were better. It was clean,
but sitting on cement outside the cells had resulted in difficulties.
The food
was not good but he was able to purchase his own food when
he had the money to do so. He was informed that he was to be released
sometime on 15 September 2015. He remained unhappy about the manner
in which the prosecutor had handled his case, because he had
been
incarcerated for something he had not done. His attorney had also not
asked the questions that he had indicated should be asked
at the time
of his trial.
[36]
It was put to the plaintiff in cross-examination that Vuyiseka had
made a statement
to the police about witnessing her father on top of
Nonelela and under the blankets. She and Nonelela had slept together
that evening
because she was afraid of her father, who later
threatened her to remain silent about what she had witnessed. She was
nine years
old at the time. The plaintiff testified that he had no
knowledge regarding that statement. Vuyiseka had testified in court
that
her earlier version had been instigated. After deviating from
her earlier statement, an adjournment had been sought and the child
had testified again thereafter.
[37]
The
plaintiff and Mazomba remained estranged because of her belief that
he had raped her child and was scared of him. The plaintiff
felt
falsely accused. He hardly saw Mazomba and Nonelela now, while
Vuyiseka resided with him. He accepted that Nonelela had made
a
pointing out statement on 9 December 2009, and that this information
was available to the prosecution and police. That was in addition
to
a statement from Mazomba (7 December 2009) and Nonelela (8 December
2009). He repeatedly denied the alleged rape but accepted
that his
legal representative had had an opportunity to cross-examine all the
witnesses that had testified against him, and that
all the evidence
had been placed before the court which had to make a decision based
on that evidence. His legal representative had
also not applied for a
discharge in terms of section 174 of the Criminal Procedure Act,
1977,
[36]
(‘the CPA’) and
had also not applied for bail pending appeal.
Absolution
from the instance
[38]
The
second and third defendant’s counsel applied for absolution from
the instance, in respect of the malicious prosecution claim,
at the
close of the plaintiff’s case.
[37]
That application was upheld. The brief reasons provided for that
decision are repeated for the sake of completeness.
[39]
The
general test to be applied, when absolution from the instance is
sought at the close of the plaintiff’s case, is not whether
the
evidence led by plaintiff establishes what would finally be required
to be established,
but
whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff.
[38]
[40]
The issue that is the focus
of the application for absolution in this instance is the claim based
on malicious prosecution (claim
B to the particulars of claim).
Leaving aside the averments contained in the particulars of claim, or
lack thereof in this instance,
to
prove malicious prosecution the plaintiff here needed to establish in
particular (a) lack of reasonable and probable cause and
(b) intent
to injure (
animus
injuriandi
).
The defendants clearly set the law in motion and it is common cause
that the prosecution ultimately failed in the sense that the
High
Court overturned the magistrate’s conviction and sentence.
[41]
It is
clear, from
Minister
of Justice and Constitutional Development v Moleko
,
that in an action for malicious prosecution, the plaintiff must,
among others, ‘allege and prove that the defendants acted without
reasonable and probable cause…’.
[39]
The
requirement relating to ‘reasonable and probable cause’ was
explained in these terms:
[40]
‘
Reasonable
and probable cause, in the context of a claim for malicious
prosecution, means an honest belief founded on reasonable grounds
that the institution of proceedings is justified. The concept
therefore involves both a subjective and an objective element –
‘not
only must the defendant have subjectively had an honest belief
in the guilt of the plaintiff, but his belief and conduct must have
been objectively reasonable, as would have been exercised by a person
using ordinary care and prudence.’”
[42]
There
is also the requirement that the defendant must have acted with
malice. Again relying on
Moleko
(and supported by the judgment of Zondo J in
Kruger
v National Director of Public Prosecutions
),
the following is relevant:
[41]
‘
Although
the expression malice has been used, it means, in the context of
the
actio iniuriarum, animus
iniuriandi
.  In
Moaki
v Reckitt & Colman (Africa) Ltd
Wessels
JA said:
“
Where
relief is claimed by this
actio
the
plaintiff must allege and prove that the defendant intended to injure
(either
dolus
directus
or
indirectus
).
Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account
in fixing
the
quantum
of
damages, the motive of the defendant is not of any legal relevance.’’
[62]
In so doing, the court decided the issue which it had left
open…namely that
animus injuriandi
, and not malice,
must be proved before the defendant can be held liable for malicious
prosecution as
injuria
.
[63]
Animus
injuriandi
includes
not only the intention to injure, but also consciousness of
wrongfulness:
“
In
this regard
animus
injuriandi
(intention) means that
the defendant directed his will to prosecuting the plaintiff (and
thus infringing his personality), in the
awareness that reasonable
grounds for the prosecution were (possibly) absent, in other words,
that his conduct was (possibly) wrongful
(consciousness of
wrongfulness).
It follows
from this that the defendant will go free where reasonable grounds
for the prosecution were lacking, but the defendant
honestly believed
that the plaintiff was guilty.
In
such a case the second element of
dolus
,
namely of consciousness of wrongfulness, and therefore
animus
injuriandi
, will be lacking.  His
mistake therefore excludes the existence of
animus
injuriandi
.’” (Footnotes
omitted.)”’
[43]
As
the Constitutional Court held in
Kruger
:
[42]
‘
It
is clear from the passage quoted in paragraph 63 in
Moleko
that
the “
animus injuriandi
”
requirement entails that in an action for malicious prosecution the
plaintiff must allege and prove that the defendant acted “in
the
awareness that reasonable grounds for prosecution were absent”.
In terms of that passage the plaintiff must allege and
prove this
because, as is stated in the passage, “the defendant will go free
where reasonable grounds for the prosecution were
lacking but the
defendant honestly believed that the plaintiff was guilty”.
[44]
I have had the opportunity to consider the
testimony of the plaintiff against the background of the common cause
facts in the matter.
Despite an eye-witness having changed her line
midships, and the hearsay claim of resultant anger on the part of the
prosecutor,
I am unable to find that there is evidence upon which a
court, applying its mind reasonably to such evidence, could or might
find
for the plaintiff, both in respect of the elements of lack of
reasonable and probable cause and intention to injure. The second and
third defendant’s application for absolution in respect of
malicious prosecution (claim B) is accordingly upheld.
[45]
What
remains for determination, and only in respect of the second and
third defendants, is that part of the particulars of claim,
relating
to the further detention of the plaintiff, that has not prescribed
(from 30 May 2014 to 29 September 2015).
[43]
The defendants’
evidence
[46]
Wilma Ferreira testified that she was presently employed as a
regional court prosecutor
dealing with sexual offences, and had
worked with sexual offences matters since 2007. She had dealt with
the plaintiff’s prosecution
during 2011.
[47]
With reference to the investigation diary, the witness testified that
she had worked
through the docket and the statements contained
therein before consulting with the complainant and her mother before
trial. In this
case, the docket included the statements of Nonelela,
Mazomba, Nonelela’s boyfriend, who was the first report, and
Vuyiseka, as
well as the pointing out statement. All of this was
available to the witness prior to her consultations.
[48]
When consultations commenced, she requested the witnesses to explain
what had occurred
in their own words in order to assess corroboration
and whether there was a
prima facie
case which could be
pursued to trial. This would include questioning the witnesses in an
attempt to ascertain whether there were
any discrepancies. In this
instance, her comments in the investigation diary reflected that
everything was in order. The statements
were consistent with the
information obtained from her interviews and all the elements of the
alleged crime had been covered. Her
view was that the matter could be
pursued, all aspects had been dealt with satisfactorily and the case
was ready for trial.
[49]
When the matter had first been called at court, during May 2011, the
plaintiff’s
legal representative had withdrawn. The state witnesses
had been subpoenaed and were present at court, and Ferreira had
consulted
with the remaining witnesses that she had not spoken to
before, namely Nonelela’s boyfriend and Vuyiseka, who was
approximately
12 years of age at that time. Ferreira testified that
she consulted with the latter on numerous occasions because she was a
child
witness, and on each instance when the matter had been
postponed at court. These consultations commenced with Ferreira
asking Vuyiseka
what she could recall, before making reference to her
statements. Ferreira had followed the same procedure when consulting
with Nonelela’s
boyfriend, who was the first report. Her view was
that Vuyiseka’s discussion with her corroborated her statement, as
well as the
version of the complainant in relation to one instance of
alleged rape. The complainant’s version was that she had been raped
on
multiple occasions. During consultation, Vuyiseka had stuck to her
story throughout without deviation.
[50]
Nonelela, the complainant, had been the first person to testify
during the criminal
trial, to lay a basis for the testimony to
follow. Ferreira had been satisfied with her testimony, which was
consistent with her
statement and dealt with all the elements and
sufficient detail regarding the alleged crime. Nonelela had been
cross-examined by
the plaintiff’s legal representative, as had her
boyfriend, who was the second witness called. Ferreira kept detailed
notes of
the proceedings, which she had consulted prior to her
testimony. Those notes indicated that Vuyiseka had testified on 23
January
2013 via a separate facility with a one-sided mirror and live
streaming facility. These precautions had been necessary because she
was a minor aged approximately 12-13 years of age at that time, and
because she was required to give evidence against her father.
The
room was soundproof and Mazomba had to remaining in a waiting room,
together with a court preparation officer.
[51]
Ferreira had consulted with Vuyiseka prior to the commencement of
trial, affording
her an opportunity to once again explain what had
occurred. This was customary in cases involving children and child
victims. She
had been satisfied with the way in which the
consultation had proceeded and had accordingly called her to testify.
Vuyiseka had,
during examination-in-chief, deviated from her
statement to indicate that she had not witnessed anything in respect
of her father
and Nonelela. Ferreira had been shocked and surprised
but testified that this type of change could occur with children. She
also
observed that Vuyiseka appeared to be in distress and that her
demeanour had changed. She had looked down and stopped talking.
Ferreira
had requested an adjournment to obtain a copy of the CPA in
order to determine how she should proceed. She also requested the
court
preparation officer to check that everything was fine with the
witness. After obtaining her copy of the CPA, she spoke to the court
preparation officer, in the presence of Mazomba, to enquire whether
everything was in order so that the matter could proceed. The
plaintiff’s representative at the time was also in the vicinity.
Court then resumed.
[52]
Ferreira now questioned the witness from a different angle, enquiring
as to whether
she recalled making a statement to the police. The
magistrate had also commented to Vuyiseka that she understood that it
was difficult
for her to testify against her father, and that she
should just tell the truth. The witness then confirmed making a
statement to
the police and subsequently confirmed the contents of
that statement. Vuyiseka effectively reverted to her previous version
and there
was no need for her to be declared hostile. This approach
would have been problematic for other reasons too. When asked why she
had
initially testified differently, Vuyiseka indicated that she had
been afraid. Ferreira explained that she dealt with children on
a
regular basis and always held their best interests at heart. She did
not want to cause Vuyiseka undue stress and understood that
she was
in a difficult position, being required to testify against her
biological father. Cross-examination on the part of the state
could
have caused further mental stress and Ferreira’s view was that the
state’s case was sufficient.
[53]
Vuyiseka’s evidence had been subjected to cross-examination on the
same day. When
asked whether anyone had spoken to her during the
adjournment, she confirmed that Ferreira had not spoken to her, and
that her mother
and the court preparation officer had said she must
speak the truth. For some reason, the plaintiff’s legal
representative at the
time had requested a postpone in the midst of
his cross-examination, and the matter had only proceeded six months
later. Ferreira
had considered the way forward during this lengthy
adjournment and felt that the prosecution was on track. Upon
resumption, Vuyisekwa
had testified that her sister had asked her to
implicate the plaintiff. The defence had nevertheless not sought a
section 174 discharge
at the close of the state’s case.
[54]
Ferreira’s view was that the state had sufficient evidence for a
conviction based
on the complainant’s evidence and corroboration
from her boyfriend and mother, and despite the complainant being a
single witness
if Vuyiseka’s evidence was discarded. The case
remained strong and the weight to be attached to Vuyiseka’s
testimony could be
argued. She emphasised that the magistrate had
accepted that Vuyiseka was in a difficult position when testifying
against her own
father. It was the magistrate that had considered all
the evidence and found the plaintiff guilty.
[55]
Regarding
the fact that the magistrate’s decision had been overturned by the
High Court on appeal, Ferreira testified that she had
no control over
mis-directions on the part of a magistrate. In any event, a criminal
case could not simply be withdrawn once it had
commenced. A stay of
prosecution could be sought, but in this case her opinion was that
the state’s case was still strong, based
particularly on the
complainant’s evidence on record, which was the prosecution’s
strongest suit. Only a small component of the
evidence was in
question, involving a child witness. In sexual offences matters, it
was in any event frequently the case that convictions
were based on
the evidence of a single witness. The High Court had overturned the
magistrate’s decision also based on various concessions
on the part
of counsel for the state when the appeal against the conviction was
argued.
[44]
[56]
Ferreira testified further that she had prosecuted the matter without
prejudice, fear
or favour and had properly made use of the
information before her to place this before court, so that the
magistrate could decide
whether a conviction was warranted or not.
She denied becoming angry with Vuyisekwa and testified that she had
no reason to be angry
with a child while performing the functions of
her job. She had no personal interest in the matter and performed the
function of
placing all the evidence before court to the best of her
ability, so that justice could prevail. A
prima facie
case
existed and Ferreira had remained convinced of this even after all
the evidence had been presented, particularly because of
the strength
of the complainant’s testimony against the plaintiff. The
magistrate had come to the same conclusion.
[57]
Under cross-examination, it was put to the witness that she had
failed to discharge
her duty by not taking the interests of the
accused into account when prosecuting the matter. Ferreira indicated
that she was an
officer of the court and also had to consider the
rights of the plaintiff when he was the accused, in addition to the
best interests
of the child involved. The plaintiff’s rights were
also protected by his legal representative. By the time that Ferreira
had received
the docket, the case was already on the roll, suggesting
that a
prima facie
case had been determined by whoever had
perused the docket before her. All the documents were properly
available for prosecution,
and she had decided to proceed after
consultation. The complainant had delayed in reporting the rape and
had been with her boyfriend
once she had finished her examinations.
She had been asked about this and had testified that ‘enough is
enough’ and she was in
a safe place, with her boyfriend, to report
the matter to the police. While a J88 had been handed in, the rape
had allegedly happened
over a long period of time, and a doctor’s
report would not have been of assistance.
Analysis
[58]
The
plaintiff alleges that prosecutors in the employment of the second
and third defendant were responsible for the wrongful and unlawful
further detention of the plaintiff, which resulted in him suffering
the general damages claimed. In particular, that they:
[45]
·
‘…had control over the relevant police docket and dealt with the
plaintiff, from time to time,
during his court appearances prior to
conviction;
·
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 detention, further
detention, and / or prosecution of the plaintiff;
·
failed in his / her / their duty to timeously withdraw the charges
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 rape;…
·
failed to inform the presiding magistrate of the nature and quality
of the evidence and evidential
material in the police docket…relating
to the plaintiff and the poor quality thereof (lack of evidence and
poor evidential material)
in support of the charges against the
plaintiff;’
[59]
The
claim is based in delict, which comprises wrongful, culpable conduct
by one person that factually causes harm to another person
that is
not too remote.
[46]
The harm
that the plaintiff complains of in respect of his detention is,
essentially, the deprivation of his liberty (and related
harm), which
is a significant personality interest.
[47]
The Constitution of the Republic of South Africa, 1996, enshrines the
right to freedom and security of the person, including the
right not
to be deprived of freedom arbitrarily or without just cause. The
plaintiff alleges that it was his wrongful and unlawful
arrest that
caused the harm (namely, the detention before and after he appeared
in court).
[48]
[60]
A
claim under the
actio
iniuriarum
for unlawful arrest and detention has the following specific
requirements:
[49]
a.
The plaintiff must establish that their liberty has been
interfered
with;
b.
The plaintiff must establish that this interference occurred
intentionally. In claims for unlawful arrest, a plaintiff need only
show that the defendant acted intentionally in depriving their
liberty and not that the defendant knew that it was wrongful to do
so;
c.
The deprivation of liberty must be wrongful, with
the onus falling on
the defendant to show why it is not; and
d.
The plaintiff must establish that the conduct of the defendant
must
have caused, both legally and factually, the harm for which
compensation is sought.
[61]
Encroachment
on physical freedom must be carried out in a procedurally fair
manner, and must also be substantially justified by acceptable
reasons.
[50]
From the
constitutional perspective, it may be enquired whether the
plaintiff’s deprivation of freedom was ‘arbitrary’ or ‘without
just cause’ and whether such a violation is sufficient to justify a
finding that the detention during the period in question was
also
unlawful and wrongful in the sense required by the private law
delictual action of unlawful or wrongful detention.
[51]
[62]
In
this case, the key issue is whether the second and third defendants
have discharged the onus of showing that the plaintiff’s
deprivation of liberty was not wrongful.
[52]
As the judgment of Froneman J in
De
Klerk v Minister of Police
illustrates, this is an obvious starting point given that ‘if the
conduct complained of is found not to be wrongful, then there
is no
need to proceed further. Only if wrongfulness is established will it
still be necessary to enquire into the normative issue
of legal
causation.’
[53]
[63]
The
second and third defendants denied that the actions of the
prosecutors were wrongful and unlawful, also pleading that the
plaintiff
had been convicted on two counts of rape and accordingly
detained in accordance with a warrant of detention issued by the
clerk of
the Magistrate’s Court.
[54]
The second and third defendants specifically pleaded that the
complainant’s sister had provided a statement with regard to the
rape of the complainant and that additional statements had been
provided by the complainant’s boyfriend and mother.
[55]
This was in addition to the detailed statement made by the
complainant to members of the first defendant, which served before
the
second and third defendants on 11 December 2009.
[56]
They also pleaded that the prosecutors had acted fairly, by carrying
out their duties in accordance with the National Prosecuting
Authority Act, 1998 (NPA).
[57]
The prosecutors had acquainted themselves with the contents of the
relevant police investigation docket and were not entitled to
withdraw charges against any particular plaintiff if
prima
facie
evidence existed.
[58]
They had
acted in accordance with the NPA and Code of Conduct for members of
the National Prosecuting Authority.
[59]
[64]
A survey of the evidence presented supports the conclusion that the
plaintiff’s deprivation
of liberty was, in this case, not wrongful.
It cannot be said that plaintiff’s deprivation of freedom was
arbitrary or without
just cause. That interference with liberty was
occasioned by the judgment of the magistrate and based on the
magistrate’s consideration
of all the evidence presented and tested
through cross-examination in open court. The fact that that judgment
was overturned by the
High Court on appeal cannot automatically
result in the conclusion that the plaintiff’s time in detention
amounted to wrongful
deprivation of liberty.
[65]
Ferreira’s
evidence confirms that the docket she received was in good order, and
included the statements of Nonelela, Mazomba, Nonelela’s
boyfriend,
who was the first report, and Vuyiseka, as well as the pointing out
statement. The contents of the docket appear to make
out a
prima
facie
case
against the plaintiff, justifying the case being presented. Ferreira
had clearly acquainted herself with the contents of the
docket. Her
subsequent consultations with the various potential witnesses
confirmed the contents of those statements, supporting
the decision
to prosecute the plaintiff. This also explains why the various
witnesses, including Vuyiseka, were called to testify
before the
magistrate. The presented evidence suggests that, at the very least,
there were reasonable grounds for proceeding with
the prosecution,
even after Vuyiseka had testified. Ferreira appears to have acted
with objectivity, paid attention to the contents
of her docket and
endeavored to protect the public interest, bearing in mind the best
interests of the child as well as the rights
of the plaintiff, while
conducting the prosecution.
[60]
As such, she appears to have complied with her duty to act
impartially and in good faith in assisting the court to arrive at a
just
outcome. Vuyiseka’s about-turn, on its own, did not
necessarily warrant the immediate withdrawal of charges, particularly
given
that the complainant’s testimony had stood firm. That drastic
action would normally only occur had it become clear during the
course
of the trial that it was impossible for the state to prove its
case, or where other exceptional circumstances had arisen which made
the continuation of the prosecution undesirable. Given the totality
of facts in this case, it cannot be said that that point had
arrived
merely because of the questionable testimony of a corroborating child
witness, and it was open to the court to consider all
the evidence
properly in determining whether the state had proved the plaintiff’s
guilt beyond reasonable doubt. The magistrate’s
subsequent
conviction of the plaintiff lends further credence to this
conclusion. The suggestion that the prosecutor ought to have
approached the Director of Public Prosecution to seek consent for
withdrawing the case against the plaintiff, merely on the strength
of
Vuyiseka’s performance in the witness box, cannot be supported
given the balance of evidence available.
[66]
This
is accordingly, in my view, not a case that falls into the genus of
cases where there is an absence of evidence so that there
is a duty
on the prosecutor to bring this reality home to the presiding
officer, or where the prosecutor had withheld information
from the
presiding officer.
[61]
The
difficulty experienced by the prosecutor was one of its witnesses, a
young child, deviating from their statement during
examination-in-chief,
and subsequently indicating that she had been
under family pressure to testify against her father. This despite the
prosecutor having
consulted with that witness on a number of prior
occasions. Ferreira’s evidence of the circumstances surrounding her
prior interviews
with Vuyiseka and the latter’s actual testimony
must be accepted on a balance of probabilities, including that she
had no personal
interest in securing the plaintiff’s conviction and
had not been angry when Vuyiseka changed her version during
examination-in-chief.
All of this, in any event, played out in front
of a judicial officer in the Magistrate’s Court, for that
individual to perform
their function and determine whether or not the
plaintiff’s guilty had been established beyond reasonable doubt.
The failure of
the plaintiff’s representative to apply for a
discharge in terms of section 174 of the CPA, at the close of the
state’s case,
is also telling. Any irregularities in the conduct of
a prosecutor or magistrate may rightly result in a criminal
conviction and
sentence being overturned, as occurred in this
instance, without necessarily resulting in all the requirements for a
successful delictual
claim being met.
[67]
The
second and third defendants have accordingly discharged the onus to
show that the plaintiff’s deprivation of liberty was neither
wrongful nor arbitrary or without just cause. The plaintiff’s
deprivation of liberty through his conviction and sentence was
seemingly
effected in a procedurally fair manner and was
substantively justifiable in the circumstances, contrary to the
allegations of wrongful
and unlawful conduct on the part of the
prosecutors highlighted in the particulars of claim.
[62]
On the authority of
De
Klerk
,
confirming the requirements for a successful delictual action, there
is no need to go further. It might be added, however, that
I have
significant doubts about whether the plaintiff has established that
the conduct of the second and third defendants caused,
in this case,
both legally and factually, the harm for which compensation is
sought.
[63]
Costs
[68]
This
case turns on the facts, so that there is no impediment to costs
following the result. Claims based on wrongful arrest and detention
are now commonplace and the courts have confirmed that the
Biowatch
principle is typically inapplicable.
[64]
The costs are to include the second and third defendants’
successful prescription plea and the absolution from the instance
granted
in respect of the claim for malicious prosecution.
[69]
A final point deserves mention. Given that it is now generally
accepted that the
Biowatch
principle does not apply to
cases of this ilk, litigants should be made to understand that they
run the risk of an adverse costs
order in pressing for an award of
damages. In this matter, it is on record that the legal
representatives of the plaintiff are acting
on a contingency fee
basis. That arrangement typically, and usefully, allows litigants to
exercise their constitutional right of
access to courts even where
they lack the funds to remunerate their chosen representatives. There
must, however, exist a duty on
legal representatives engaging with
prospective clients on a contingency fee basis to spell out in detail
the risks associated with
damages claims where the
Biowatch
principle is unlikely to find application. Failure to do so may, in
appropriate cases, result in a costs order
de bonis propriis
.
This is because unsophisticated clients securing legal representation
in terms of a contingency fee arrangement may operate under
the gross
misconception that they have nothing to lose and everything to gain
in launching claims for millions of rand in the High
Court.
Order
[70]
In the result I make the following order:
The
plaintiff’s claims against the second and third defendants are
dismissed with costs.
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Plaintiff
:
Adv M.W Nobatana
Instructed
by
:
TM Pitana Attorneys
Obo
the 2
nd
and 3
rd
Defendants    :
Adv L. Ah Shene
Instructed
by
:
State Attorneys, Port Elizabeth
Heard
:
28 May 2021, 1 & 4 June 2021
Delivered
:

20
July 2021
[1]
See, in general,
Mtokonya
v
Minister of Police
[2017] ZACC 33.
[2]
[2008] ZACC 4.
[3]
2011 (1) SACR 315 (SCA).
[4]
[
2005]
ZASCA 43.
[5]
Nel
v Le Roux NO
[1996] ZACC 6
;
1996 (3) SA 562
(CC) at para 24 as cited in
Greys
Marine Hout Bay supra
at para 24.
[6]
At paras 50, 52.
[7]
No review has been launched in terms of PAJA or in terms of Uniform
Rule 53. See
Bhugwan
v JSE Ltd
[2009]
ZAGPJHC 33.
[8]
1971 (1) SA (E).
[9]
It
may be noted that Spilg J in
Makhwelo
v Minister of Safety and Security
notes some significance resulting from the arrest in
Thompson
being
with a warrant, so that the issue of reasonable suspicion of the
arresting office did not arise. To the extent that it is
necessary
to note this, the judgment in
Makhwelo
is distinguishable, dealing with an issue relating to notice in
terms of the Institute of Legal Proceedings Against Certain Organs
of State Act, 2002. I also do not read the remarks relating to
claims based on wrongful arrest in
Thompson
to relate only to cases of arrest with a warrant.
[10]
See
Unilever
Bestfoods Robertsons (Pty) Ltd and others v Soomar and another
2007
(2) SA 347 (SCA).
[11]
Unilever
supra
at para 11.
[12]
See
Oslo
Land Co Ltd v Union Government
1938
(AD) 584 as cited in
Unilever
at para 12. Also see
Barnett
v Minister of Land Affairsi
2007
(6) SA 313
(W);
Lombo
v African National Congress
2002 (5) SA 668 (SCA).
[13]
Lemue
v Zwartbooi
(1896) 13 SC 403
;
Els
v Minister of Law and Order and others
1993 (1) SA 12
at 15G.
[14]
S 12(1).
[15]
Truter
v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) par 16.
[16]
S 12(3). There is not suggestion in this case that the defendants
wilfully prevented the plaintiff from coming to know of the

existence of the debt.
[17]
Administrator,
Cape v Olpin
1996 (1) SA 569
at 578A.
[18]
Brand
v Williams
1988 (3) SA 908
(C) at 913B.
[19]
Cf
the examples cited in
Olpin
supra
at 579.
[20]
See
Olpin supra
at 579G.
[21]
At para 21.
[22]
Mtokonya
at para 36. As that decision clarifies, ‘Whether the police’s
conduct against the applicant was wrongful and actionable is
not a
matter capable of proof…whether their conduct against him was
wrongful and actionable was not a fact and, therefore, falls
outside
of section 12(3). It is rather a conclusion of law.
[23]
Eskom
v Bojanala Platinum District Municipality
2003 JDR 0498 (T) at para 16.
[24]
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government Gauteng
[2009] ZASCA 25
at para 37. Also see
Claasen
v Bester
[2011]
ZASCA 197.
[25]
Mtokonya
at
para 55, 56. It is notable that the plaintiff’s replication does
not specifically raise any of the exceptions set out in
section 12
of the
Prescription Act, and
also does not set out any facts in
support of this contention.
[26]
MEC
for Education, KwaZulu-Natal v Shange
[2012] ZASCA 98.
[27]
Cf
Links v Department of Health, Northern Province
[2016] ZACC 10.
[28]
Mtokonya
at
para 63.
[29]
At para 63. See
Road
Accident Fund v Mdeyide
[2010] ZACC 18
on the importance of prescription.
[30]
Act 40 of 2002 (‘the Institution of Legal Proceedings Act’).
[31]
[2016] 2 All SA 888
(WCC).
[32]
See
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010
(4) SA 109
(SCA) at para 30 for the rationale for the requirements
in s 3(4).
[33]
Barnett
supra
at paras 20, 21 and the cases cited there.
[34]
Ngcobo
v Minister of Police
1978 (4) SA 933
(D) at 933H; Also see
Slomowitz
v Vereeniging Town Council
1966 (3) SA 317 (A).
[35]
Lombo
v African National Congress
2002 (4) SA 668
(A) at paras 26, 27.
[36]
Act 51 of 1977.
[37]
In terms of Rule 39(6) of the Uniform Rules of Court.
[38]
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson
(2) 1958 (4) SA 307 (T).
[39]
[2008]
ZASCA 43
at para 8. Also see
Kruger
v National Director of Public Prosecutions
[2019] ZACC 13
at para 50.
[40]
Moleko
supra
at
para 20.
[41]
At para 52 of
Kruger
,
relying on para 61
et
seq
of
Moleko
,
which relied on
Relyant
Trading (Pty) Ltd v Shongwe
[2007] 1 All SA 375
(SCA) at para 14.
[42]
At para 53.
[43]
The
plaintiff’s amended particulars of claim dated 5 September 2017
claimed R1 700 000 in respect of claim A, for unlawful
arrest and detention.
In
terms of an undated ‘notice of intention to amend particulars of
claim’ served and filed on 14 June 2021 (and together with
the
submission of counsel for plaintiff’s heads of argument), the
plaintiff attempted to amend the claim for general damages
caused by
the further detention to the sum of R3 619 000,00. That
‘notice’ failed, however, to comply with the provisions
of Rule
28(2) of the Uniform Rules of Court and was accordingly disregarded.
It might be added that the notice in fact did not
indicate the
plaintiff’s
intention
to amend and simply gave notice of amendment. An ‘amended
particulars of claim – dated 14 June 2021’ was filed
simultaneously
with the ‘notice’.
[44]
The plaintiff sought to file a supplementary discovery affidavit
after the conclusion of all the evidence, and just prior to
submitting
heads of argument. This in the absence of any application
for leave to re-open the case, adduce further evidence or recall a
witness
for further examination:
Heinze
v Friedrich
1927
SWA 106 as cited in Van Loggerenberg
Erasmus
Superior Court Practice (2
nd
Ed) (vol 2)
D1-536.
The plaintiff’s heads of argument then made reference to
documentation listed in the supplementary discovery affidavit.
The
second and third defendants objected to this. That objection is
upheld due to the prejudice to the second and third defendants,
and
the fact that each party had already closed its case by time the
supplementary discovery affidavit was filed. It goes without
saying
that the objective of discovery is ‘to ensure that
before
trial both parties are made aware of all the documentary evidence
that is available’ (own emphasis):
Durbach
v Fairway Hotel Ltd
1949 (3) SA 1081
(SR) at 1083. The object of the rules as to
discovery is to secure the fair trial of the action in accordance
with the due process
of the court:
Logicrose
Ltd v Southend United Football Club Ltd
[1988] 1 WLR 1256.
[45]
Para 27 of the amended particulars of claim (dated 5 September 2017)
read with the plaintiff’s heads of argument.
[46]
Oppelt
v Head: Health, Department of Health, Western Cape
[2015] ZACC 33
at para 34.
[47]
See
Thandani
v Minister of Law and Order
1991 (1) SA 702
(E) at 707B.
[48]
Para 5 of the particulars of claim,
et
seq
.
[49]
De
Klerk v Minister of Police
[2019] ZACC 32
at para 14, references omitted.
[50]
See
Zeeland
v
Minister of Justice and Constitutional Development and another
[2008] ZACC 3
at para 43.
[51]
Zeeland
supra
at
paras 33 and 49.
[52]
Cf
De Klerk
supra
at para 33. The facts in that case raised a particular question
which, according to the majority of the Constitutional Court, turned
on the issue of legal causation. In
De
Klerk
the question involved an ‘unlawful’ remand decision by a
magistrate in an instance where the applicant should clearly have
been released on bail.
[53]
At para 121.
[54]
At para 7 of the second and third defendants’ plea.
[55]
At para 10 of the second and third defendants’ plea.
[56]
Para 28 of the second and third defendants’ plea.
[57]
Act 32 of 1998; para 28 of the second and third defendants’ plea.
[58]
Paras 29 and 30 of the second and third defendants’ plea.
[59]
Para 31 of the second and third defendants’ plea.
[60]
Minister
of Police v Du Plessis
2014 (1) SACR 217
(SCA) at paras 28, 34, as cited in
The
National Director of Public Prosecutions v Hyron Swarts
(unreported case no CA 164/2019, Eastern Cape Division, Grahamstown)
at paras 14 and 15.
[61]
See
Singata
and another v Minister of Police and another
[2015] ZAECBHC 19 at para 43. The case is also not of the kind that
stems from the failure of an investigating officer to properly
investigate the crime and bring information to the attention of the
prosecutor and magistrate: see
Woji
v Minister of Police
2015 (1) SACR 409
;
Buthelezi
v Minister of Police and others
[2019] ZAKZPHC 49.
[62]
See
Minister
of Police and Another v Muller
2020
(1) SACR 432
at para 34, as cited in
Mahleza
v Minister of Police and another
2020 (1) SACR 392
(ECG) at para 44, in the context of a remand
order.
[63]
The second defendant was cited as the executive authority
responsible for the actions of the third defendant (para 3 of the
particulars
of claim) and the gravamen of the plaintiff’s claim
relates to the conduct of the prosecutors as opposed to the
presiding magistrate.
See, in general,
Nohour
and another v Minister of Justice and Constitutional Development
2020 JOL 46897 (SCA).
[64]
See
Mbatha
v University of Zululand
[2013]
ZACC 43
cited with approval in
Minister
of Safety and Security and another v Schuster and another
[2018] ZASCA 112
, paras 25 and 26. Also see
Banda
v Minister of Police
[2021]
ZAECGHC 55 at paras 65 and 66.