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2023
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[2023] ZAECBHC 9
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Qwabe v Minister of Police (139/2015) [2023] ZAECBHC 9 (9 May 2023)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 139/2015
In
the matter between:
MPATHI
ENOCH QWABE
Plaintiff
And
MINISTER
OF POLICE
Defendant
BRIEF
REASONS AND ORDER
IN
RESPECT OF SPECIAL PLEAS
HARTLE
J
[1]
The defendant raised certain special pleas of prescription after the
plaintiff
amended his particulars of claim. The import of them all is
that the plaintiff for the first time when he delivered his amended
particulars of claim (on 23 February 2023) introduced new causes of
action or new debts which are claimed more than three years
after 1
July 2023, the date on which his claim arose.
[2]
The
plaintiff abandoned his amendment as introduced by paragraphs 5.2 of
his last amended particulars of claim regarding the defendant
having
exceeded the outer limits of the 48-hour rule, hence the defendant’s
first special plea has fallen away.
[1]
[3]
The plaintiff did not replicate to the special pleas. However in a
stated case
and a pre-trial minute that served before the court for
purposes of arguing the special pleas, it was submitted on his behalf
with
regard to the remaining two pleas, firstly in paragraph A2, that
the recent amendment implicated thereby does not introduce new
allegations nor a separate head of damages, but that the plaintiff
merely sought thereby to perfect, clarify and particularise
paragraphs 6.2 to 6.4 of his original particulars of claim and,
secondly in respect of paragraph A3, that these additional paragraphs
(as
facta probantia
) were also merely intended to perfect,
clarify and particularize his already existing claim for unlawful
arrest and detention presently
under scrutiny, the bare basis for
such claim having been pleaded in paragraphs 5.1 to 5.5 of his
original particulars of claim.
[4]
Indeed, the success of the special pleas raised by the defendant
presupposes
the premise that the impugned paragraphs introduce new
causes of action or heads of damage.
[5]
Briefly regarding the plea referred to in paragraph A2 of the
defendant’s
special plea, the plaintiff’s amended
allegation that he suffered “great humiliation as he is a
person of good reputation”,
although perhaps unfortunate, is in
my view nothing more than saying he suffered
contumelia
in the
traditional sense.
[6]
With
reference to the special plea raised under paragraph A3, there is
evidently no reference whatsoever to a claim for malicious
prosecution. The averments of fact in my view go to issue of the
defendant’s liability for the plaintiff’s detention
after
his arrest (the continued detention) and the element of causality in
relation to this claim.
[2]
[7]
To my mind
it was necessary for the plaintiff to plead an evidentiary basis and
specific facts against which the court is expected
to adjudge the
unlawfulness of his continued detention and its connection with the
harm contended for by him exactly because the
onus on the defendant
to justify it generally should not be invoked in a vacuum.
[3]
The plaintiff has however from the outset at least maintained that
his arrest,
and
continued detention at the hands of the police
,
was unlawful. The amendments merely sought to give that averment
flesh.
[8]
The special pleas are accordingly bad in law and must fail with costs
to follow
such result.
[9]
In the result I issue the following order:
1.
The defendant’s special plea of prescription premised on the
argument in support of paragraph A2
of his special plea that
paragraph 5.11 of his amended particulars of claim constitutes a new
cause of action, namely defamation,
or introduces a new head of
damages that was not pleaded before the amendment was delivered, is
dismissed.
2.
The defendant’s special plea of prescription premised on the
argument in support of paragraph A3
of his special plea that
paragraphs 5.12 to 5.16 of his amended particulars of claim
constitute a new cause of action, namely malicious
prosecution, or
seek to introduce a new head of damages that was not pleaded before
the amendment was delivered, is dismissed
3.
The defendant is liable for the costs of the determination of the
special pleas.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
:
3 May 2023
DATE
OF JUDGMENT
:
9 May 2023
Appearances:
For
the plaintiff : Ms. T Mqobi instructed by Mdlangazi, Attorneys, East
London (ref. Mr. Mdlangazi).
For
the defendant : Mr. M H Sishuba SC instructed by the State Attorney,
East London (ref. Mrs Dlanjwa).
[1]
The amended particulars of claim should henceforth read as if
paragraph 5.2 has been deleted in its entirety. Ms. Mqobi submitted
that the preamble that “(t)he Plaintiff was unlawfully
arrested and detained at Peddie Police Station” should still
remain, but Mr. Sishuba argued to the contrary. It matters not
though in my view because the sentiment that both the arrest and
detention (as a necessary corollary to the arrest) were unlawful
have been stated elsewhere in the particulars of claim.
[2]
See in this regard
De
Klerk v Minister of Police
2019
(12) BCLR 1425
(CC) at [62] – [63]. See also the requirements
for the delict which the court re-stated in para [14] of the
judgment.
[3]
Minister
of Safety and Security v Slabbert
(2010)
2 All SA 474
(SCA).