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[2022] ZAECGHC 28
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Christian and Another v Minister of Police and Another (2861/2018) [2022] ZAECGHC 28 (29 March 2022)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO. 2861/2018
In the
matter between:
FRANS
CHRISTIAN
First Plaintiff
SINETHEMBA
MJAKUCA
Second Plaintiff
and
THE
MINISTER OF POLICE
First Defendant
RAYMOND
MHLABA MUNICIPALITY
Second
Defendant
JUDGMENT
- RECONSIDERATION OF COSTS ORDER
RUGUNANAN,
J
[1]
On 28 September 2021 this
court handed down a judgment (“the judgment”) in which
the first defendant, the Minister of
Police, was ordered to pay
amounts of R70 000 and R60 000 respectively to the first
and second plaintiffs for their unlawful
arrest and detention
together with costs.
[2]
The costs order in the
judgment was made prior to the disclosure of the Minister’s
tender that was delivered “
without
prejudice of rights”
by
notice to the attorneys for the second plaintiff on 7 May 2021. The
intervening period until 10 May 2021 (the latter being the
trial
date), was a weekend. In effect the tender was made a day before
trial.
[3]
Due to the amount of damages
awarded to the second plaintiff being equal to the amount as tendered
by the Minister before commencement
of the trial, the matter now
comes before this court under the provisions of rule 34(11) and (12)
for reconsideration of the costs
order in favour of the second
plaintiff only.
[4]
The award of R60 000.00
to the second plaintiff was an unsuspecting consequence of the
court’s own assessment. It was
based on a consideration of a
series of prior awards to which the court was referred by counsel for
the second plaintiff. The awards
are itemised in paragraph [65] of
the judgment in the form of an inflation adjusted listing, shifting
from lowest to highest.
[5]
In these proceedings the
Minister essentially seeks a substitution of the costs order to the
effect that the second plaintiff’s
taxed costs of suit only be
paid up to and including 10 May 2021, and that the second plaintiff
be directed to pay the Minister’s
taxed costs for 11, 12, and
13 May 2021, and 5 July 2021.
[6]
The
purpose of a tender under rule 34 is that it enables a defendant to
avoid further litigation by ensuring early settlement and,
failing
that, to avoid liability for the costs of such litigation. Ordinarily
the rule would cause the court to order the defendant
to pay the
plaintiff’s costs incurred up to the date of the tender, and
the plaintiff to pay the defendants costs thereafter.
[1]
This is not regarded as a necessary imperative that will be rigidly
applied in all circumstances. The proviso to rule 34(12) makes
it
plain that the court’s ultimate discretion remains unaffected
(see
Naylor
and Another v Jansen
2007
(1) SA 16
(SCA) at paragraph [14]).
[7]
Relevant to the
reconsideration proceedings it is deemed inexpedient to repeat the
arguments and legal principles cited by counsel.
The founding
affidavit to the application censures the second plaintiff for
proceeding to trial at his own risk because the damages
awarded to
him (for his arrest and detention) did not exceed the amount
indicated in the tender.
[8]
Although the award to the
second plaintiff fell within the monetary jurisdictional ceiling of
the magistrates’ court, the
motivation for granting the costs
order in the judgment is attributed to the Minister’s
disinclination to have conceded liability
for the arrest and
detention when it was opportune to have done so several weeks before
the commencement of the trial – this
in the light of the fact
that the Minister had known for some time before its commencement
that the arresting officer had long
been deceased. Rather than make
this concession and deal directly with the
quantum
issue on the arrest
and detention, a hapless defence was mounted to justify the arrest
and detention on the ostensible supposition
that it was authorised by
a court order.
[9]
In my view the aforegoing
considerations serve as weighty justification for exercising a
judicial discretion as a departure from
the usual practice.
[10]
In heads of argument counsel
for the Minister submitted that:
“
[The
Minister] was not in a position to concede liability of the second
plaintiff’s first claim in circumstances in which
the second
plaintiff pursued it primarily on the basis of a malicious arrest and
detention and, only in the alternative, an unlawful
arrest and
detention. A concession of liability based on maliciousness, has
significant consequences in relation to quantum, other
consequences
to the officers involved and would have inevitably had an impact on
the second claim for malicious prosecution …”
[11]
My point of departure with
this submission is that it blinks at the formulation of the tender
which is worded in the following terms:
“
TAKE
NOTICE that payment of the amount of R120 000 (one hundred and
twenty thousand rand) is offered in full and final settlement
of the
plaintiffs’ claim one (R60 000,00 to each plaintiff).”
[12]
Claim one is pleaded in the particulars of claim
as follows:
“
CLAIM
ONE: MALICIOUS, ALTERNATIVELY, WRONGFUL AND UNLAWFUL ARREST AND
DETENTION
9.
On Wednesday the 14
th
of February 2018 and at Adelaide,
the plaintiffs were maliciously, alternatively, wrongfully and
unlawfully arrested, without a
warrant, by members of the South
African Police Service, on a charge of contravention of court order.”
[13]
Claim one has been compositely pleaded.
Indubitably, a literal or sensible meaning of the tender conveys that
its scope incorporates
what is pleaded. The argument that the
Minister could not concede liability for the malicious arrest is
discordant with the expressed
intention of the tender. This is
indicative by its language in the light of the ordinary rules of
grammar and syntax (see
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at paragraph [18]
). To uphold the
argument would be tantamount to this court fashioning a tender in
terms that were not exactly contemplated.
[14]
By attempting to lay emphasis on the
significant
consequences in relation to quantum
,
the extract quoted from counsel’s heads of argument seeks to
differentiate the claims for malicious arrest and detention,
and
unlawful arrest and detention. The argument purports to exclude the
former claim from the scope of the tender to rationalise
the
reluctance to have conceded liability at an earlier stage short on a
few weeks before trial.
[15]
From the beginning, the particulars of claim did
not make a clear distinction between these claims. They were
unsatisfactorily formulated.
The judgment was at pains to point out
that, in law, the claims are uniquely distinct; they ought to have
been separately pleaded,
and not pleaded as one claim (see paragraphs
[22]-[24] of the judgment). In that respect, the particulars of claim
are a classic
exemplar for triggering an exception. If this had been
dealt with at the earliest opportunity, a tender down the line would
most
certainly, and inevitably, have been formulated to accord with
the exclusion now contended for. In formulating the tender this
distinction was not grasped; and those responsible, clearly intended
for it to be in full and final settlement of
claim
one
, however ineptly it has been
pleaded.
[16]
My inevitable point of departure with these
proceedings is that the tender made no distinction between the claims
- on the one hand,
for a malicious arrest and detention - and on the
other, for an unlawful arrest and detention. In that regard, I am not
persuaded
in my discretion to depart from the manner and reasoning
employed in dealing with the costs issue in the judgment.
[17]
In the result it is ordered
that:
“
The
application is dismissed with costs.”
M.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Dates
heard: 02
December 2021
Date
delivered: 29 March 2022
Appearances:
For
the Second Plaintiff:
Adv. M Du Toit
Instructed
by:
DOLD &
STONE INC.
10 African Street
Makhanda / Grahamstown
(Ref: Mrs Wolmarans)
Tel: 046-622 2348
Email:
morilee@doldandstone.co.za
For
the First Defendant:
Adv. K. L. Watt
Instructed
by:
WHITESIDES ATTORNEYS
53 African Street
Makhanda / Grahamstown
(Ref: Ms. Asmal)
Tel: 046-622 7117
Email:
conveyancing@whitesides.co.za
pa1@whitesides.co.za
[1]
The so-called ‘usual practice’; see
Mntwaphi
v Road Accident Fund
,
unreported Case No 701/2017 ECHCPE, 16 February 2017 at paragraph
[8]