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2023
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[2023] ZAFSHC 198
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Boy and Others v Minister of Police (4732/2019; 4733/2019;4734/2019;4735/2019;4736/2019;4737/2019;4858/2019;4859/2019) [2023] ZAFSHC 198 (22 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
In
the matter between:
(PLAINTIFFS)
CASE
NO:
SHIRLEY
ELIZE BOY
4732/2019
MANTHABELENG
AGNESIA MPELE
4733/2019
ABRAM
SEKALELI
4734/2019
PHUMELA
PETROS LEBONA
4735/2019
KHOTSO
JULIUS NYATI
4736/2019
TSHOKOLO
JOHN MOTHEBE
4737/2019
MALUSI
AARON BUYAPHI
4858/2019
LINEO
AGNES MOFANA
4859/2019
and
MINISTER
OF POLICE
(DEFENDANT)
CORAM:
MOLITSOANE, J
HEARD
ON:
06 DECEMBER 2022
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 12h00 on 22 May 2023
[1]
The eight claimants instituted separate actions for alleged unlawful
arrest and detention
against the defendant. The claims of the
claimants were consolidated and heard as one. The plaintiffs’
cases were closed
and the defendant has launched an application for
absolution from the instance.
[2]
The application is premised on the
following: In the particulars of claim, the plaintiffs pleaded
that
their arrest followed from the conduct of the employees of the
defendant who acted negligently in arresting them. Simply put,
the
contention by the defendant is that the plaintiffs failed to prove
that the employees of the SAPS acted negligently and /or
such
negligence resulted in unlawful arrests and detention.
[3]
At the commencement of the proceedings, there was a dispute about the
duty to begin. The
contention of the plaintiffs was that in cases of
unlawful arrest and detention, once the arrest was conceded, as in
this case,
the onus shifted to the defendant to justify the arrest
and consequently, the burden of proof having shifted, the duty to
begin
fell on the defendant.
[4]
The defendant, on the other hand agreed with the contention of the
plaintiffs as a general proposition.
It was, however, submitted on
behalf of the defendant that the plaintiffs’ case was premised
on negligence, and but for this,
had the plaintiffs pleaded their
cases in a conventional manner, that is, without basing it on alleged
negligent conduct of the
employees of the defendant, which conducted
preceded the arrest and detention, then in that case, the
duty to begin
would have befallen the defendants.
[5]
Having listened to the submissions I ordered as follows:
a)
That the duty to begin was on the plaintiffs;
b)
That the plaintiffs bore the burden of proving
negligence as pleaded;
c)
That the plaintiffs bore the onus to prove malice
as pleaded;
d)
That whereas the defendant bore the onus of
proving the lawfulness of the arrest, [in view of the admission of
the arrest in the
pleas] the plaintiffs carry the burden to prove
that the arresting officers failed to exercise their discretion to
arrest reasonably.
[6]
In arriving at the conclusion for the above order, this court was
guided by the pleaded
cases of the plaintiffs. The different cases of
the plaintiffs were pleaded in the particulars of clam in essentially
the same
way, except for things like personal particulars, the arrest
date, the detention, and ultimately the release of each claimant.
[7]
For the sake of a discussion in this case, I will use the case of the
first claimant, to
wit, Shirley Elize Boy to demonstrate the reason
for the orders. It is trite law that the test for absolution from the
instance
is not whether the evidence led by the plaintiff established
what would finally be required to be established but whether there
is
evidence upon which a court applying its mind reasonably could or
might find for the plaintiff.
[1]
[8]
At this stage of the pleadings issues of credibility are not
adjudicated upon unless it
has been established that the evidence of
the witness(s) constituted what is not true.
[10]
The purpose of pleading is to define the issues so as to enable the
other party to know what case he has to meet. While a pleader’s
first duty is to allege the facts upon which he relies, his second
duty is to plead the conclusions of law which he claims follow
from
the pleaded facts. The parties are limited to their pleadings.’
[9]
What has precipitated an order that the
plaintiffs had a duty to begin as well as this application
for
absolution from the instance is the manner in which the claimants
pleaded their case. The purpose of pleadings is to define
the issues
between the parties and crystallise the facts in dispute. The Court
in
Hanger
v Regal and Another
[2]
said the following:
.
“
[9] In order
to avert absolution, therefore, a plaintiff needs to make out a prima
facie case in the sense that there is evidence
relating to all the
elements of the claim2, since without such evidence no court could
find for the plaintiff. The material facts
upon which a plaintiff
relies in support of its claim must be set out in the particulars of
claim in a ‘clear and concise
statement. ‘In other words:
‘
The plaintiff
must…state clearly and concisely on what facts he bases his
claim and he must do so with such exactness that
the defendant will
know the nature of the facts which are to be proved against him so
that he may adequately meet him in Court
and tender evidence to
disprove the plaintiff’s allegations.’
[10]
In
Trope
v South African Reserve Bank
[3]
,
the Court said the following:
“
It is, of
course, a basic principle that the particulars of claim should be so
phrased that a defendant may reasonably and fairly
be required to
plead thereto. This must be seen against the background of the
further requirement that the object of pleadings
is to enable each
side to come to trial prepared to meet the case of the other and not
be taken by surprise. Pleadings must therefore
be lucid and logical
and in an intelligible form; the cause of action or defence must
appear clearly from the factual allegations
…”
[11]
The Plaintiffs have pleaded their cases as
follows:
“
3.1
On or about 17
th
January 2018, the Plaintiff was unlawfully and wrongfully arrested by
the employees of the defendant, members of SAPS, at or near
Welkom on
the charges of Kidnapping, Human Trafficking, and other charges,
where after she was detained at Welkom Police Station
for about two
days before appearing in court around the 20
th
of January 2018. The Plaintiff was arrested without warrant
notwithstanding her plea that she didn’t commit any offence.
3.2.
The Plaintiff was thereafter unlawful
detained at Welkom police station at the instance of the
said
arresting officers for two days and later transferred to Kroonstad
correctional centre where she was unlawfully detained for
more than
twenty-eight (28) days.
3.3.
…
3.4.
…
3.5.
4.
The Plaintiff’s arrest was
unlawful on the following grounds:
4.1.
The employees of the Defendant did not have the
reasonable grounds to
arrest her,
4.2.
They didn’t appreciate that they had the discretion
to arrest or not to arrest her without a
warrant arrest,
4.3.
They neglected, refused, and /or failed to exercise the
aforesaid discretion, alternatively to exercise it properly,
4.4.
They acted negligently
( my emphasis) by relying on the third
parties suspicion that Plaintiff was involved in the commission of
Human Trafficking, Kidnapping,
Money laundering, and other charges.
4.5.
They neglected, refused, and or /failed to investigate or
scrutinize the information they received from the third party
which
led to the arrest of the Plaintiff.
4.6.
It is clear that the Defendant’s employee’s
suspicion
was
not reasonable and it was not based on the solid
ground
as required by the law.
4.7.
They arrested Plaintiff arbitrarily and without just cause.
5.
…
6.
…
7.
…
8.
…
9.
In-and-as a result of the said
negligence, Plaintiff was unlawfully arrested and unlawfully
(my emphasis) detained for a period of more than 28 days. She
suffered damages in the total amount of R1 000 000 (One
million Rand) for unlawful arrest and unlawful detention, being
damages for
inter alia
,
pain and suffering, discomfort, humiliation, past loss of earnings,
degradation and contumelia.
[12]
It is clear from the above that the plaintiffs
complicated the issues for themselves when they pleaded negligence
of
the employees of the defendant. An arrest or detention is
prima
facie
wrongful and there was no need for the plaintiffs to plead
in the manner that they did. The fact that they had pleaded that “
in
and as a result of the …negligence, Plaintiff was unlawfully
arrested and unlawfully detained”
required that they lead
the evidence first, in order to prove their allegation of negligence.
This also implies that according
to the plaintiffs, the unlawful
arrest and subsequent unlawful detention was a sequel to some other
negligent conduct of the employees
of the defendant which needed to
be proven first.
[13]
That the cause of action is founded on unlawful
arrest and detention cannot be disputed. It is also important
to bear
in mind that in an application for absolution from the instance the
test as indicated above is not whether the evidence
led by the
plaintiff would finally be required to be established but simply
whether there is evidence upon which a court applying
its mind
reasonably to such evidence could find or might find in favour of the
plaintiff.
[14]
The testimony of the Plaintiffs was geared at
individually trying to show that they could not have been
involved in
human trafficking. On the other hand, cross-examination of the
plaintiffs was geared at establishing that individual
plaintiffs were
part and parcel of the alleged human trafficking on the premises of
their employer.
[15]
The court is obliged to look at the overall evidence in the
adjudication of whether the plaintiffs have established a
prima facie
case. The case for the plaintiffs is in broad outline that they were
employees of one Mr Rune. He had employed them
in various capacities
in his different businesses around Matjhabeng Municipality. Most of
them were Lesotho citizens. It does not
appear that they had work
permits to work in South Africa. Looking at their different work in
isolation could easily give an impression
that they were innocent
workers just earning honest living. It is for this reason that they
assert that they were ‘arrested
arbitrarily and without a just
cause’.
[16]
In the Rule 37 conference meeting minutes the parties agreed “
that the documents in the trial bundle shall be what they purport
to be without admitting necessarily to the correctness of the
contents thereof.”
It is submitted on behalf of the
defendant that the Court is entitled to consider documentation in the
bundle as referred to during
evidence. While this might be so, the
difficulty I have relates to the probative weight this court has to
attach to the bundle
in view of the rider that the correctness of the
contents thereof is not necessarily admitted.
[17]
In my view these documents do little to advance the case of the
defendant or that of the plaintiffs at this stage. The
evidence
gleaned from the affidavits and bail proceedings cannot translate
into conclusive evidence. Further the version of the
defendant as put
to the witnesses is not evidence unless repeated under oath.
In my view it cannot, notwithstanding,
the manner in which the
plaintiffs pleaded their cases be said that there is no evidence upon
which this Court might or could find
for the plaintiffs. The
application can therefore not succeed. I accordingly order as
follows:
Order
1.
The application for absolution from the instance
is refused;
2.
The costs shall be costs in the cause.
P.E.
MOLITSOANE,J
On
behalf of the Plaintiffs:
Adv
J. Nkhahle
Instructed
by:
Kambi
Attoneys
BLOEMFONTEIN
On
behalf of the Second Respondent:
Adv.
G Wright
Instructed
by:
The
State Attorney
BLOEMFONTEIN
[1]
See Claud Neon Lights (SA) Ltd v Daniel.
[2]
2015(3)SA 115(FB).
[3]
1992(3) SA 208(T) at 210G-J.