About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 8
|
|
Plaatjies v Minister of Police (CA165/2021) [2022] ZAECMKHC 8 (3 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MAKHANDA]
CASE
NO:
CA165/2021
Heard
on: 18/03/2022
Delivered
on: 03/05/2022
In
the matter between:
NOMBONISO
PLAATJIES
Appellant
and
MINISTER
OF
POLICE
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
This is an appeal arising from the judgment of the magistrate of
Grahamstown (now
Makhanda) dismissing the appellant’s claim for
damages. The claim pertained to an alleged assault by the members of
the respondent
upon the appellant whilst the members were performing
police duties within the cause and scope of employment with the
Department
of Safety and Security, for which the respondent is
vicariously liable in terms of s 2 of
State Liability Act 20 of 1957
.
[2]
The appeal is predicated on numerous aspects of misdirection on the
part of the magistrate
with regard to approach to evidence and
discovery of documents for the purposes of trial. The legal
representative for the respondent
placed focus on the issue that the
magistrate was correct in finding that since the appellant’s
evidence was out of synch
with the pleaded material facts, on which
the cause of action is based, the dismissal of the appellant’s
claim was correct.
[3]
In terms of
Rule 6
(3) of the Magistrate’s Court rules the
appellant had to plead the cause of action, and in the manner as is
provided for
in
Rule 6
(4) which reads as follows:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim,
defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.”
[4]
In turn, the respondent had to submit a plea that complies with the
provisions of the
Rule 6
(5), read with the provisions of
Rule 6
(4).
I quote the provisions of
Rule 6
(5) below for the purposes of
convenience:
“
When
in any pleadings a party denies an allegation of fact in the previous
pleading of the opposite party, he or she shall not do
so evasively,
but shall answer he point of substance”.
[5]
The provisions of
Rule 6
(4) correspond to
Rule 18
(4) of the uniform
rules of the Superior Courts. In the commentary by Herbstein &
Van Winsen:
THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH
AFRICA, 5
th
Edition
at 565
adopt the definition of the term “material fact”
with reference to the case of
North West Salt Co Ltd v
Electrolytic Alkali Co Ltd
(1913) 3 KB 422
at 425, CA where the
following was stated:
“
If
a party relies on a fact, and will fail in his claim or defence
unless at the trial that fact is proved, that fact will be a
‘material fact’ or ‘
factum
probandum.
’
However, where the fact relied on is such that if the party fails to
prove it at the trial he may nevertheless succeed on
his claim or
defence, that fact will in general not be a material fact, but only
evidence of a material fact. Facts of this kind
are known as ‘
facta
probantia
’,
and should not be pleaded.”
[6]
In our jurisdiction the definition of the term “material fact”
as stated in the
North Western Salt
case was adopted in the
case of
McKenzie v Farmer’s Co-operative Meat Industries Ltd
1922 AD 16
at 22 in the following terms:
“…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment of the
court. It
does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to
be proved.”
[7]
The purpose of the pleadings was stated in the case of
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at 108D-E as follows
:
“
In
support of this contention counsel referred to
inter
alia Shill v Milner
1937
AD 101
at
105 and
Marine
& Trade Insurance Co Ltd v Van der
Schyff
1972(1)
SA 26(A) at 44D - 45E. Both these decisions cite an earlier one of
this court,
Robinson
v Randfontein Estates GM Co Ltd
1925
AD 173
in which at 198 it was said:
‘
The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full enquiry. But within those limits the Court has a
wide discretion. For pleadings are made for the
Court, not the Court
for pleadings. And where a party has had every facility to place all
the facts before the trial Court and
the investigation into all the
circumstances has been as thorough and as patient as in this
instance, there is no justification
for interference by an appellate
tribunal, merely because the pleading of the opponent has not been as
explicit as it might have
been."
Also
see: Collen v Rietfontein Engineering Works
1948 (1) SA 413
(A) at
433.
[8]
It is common cause that the cause of action as pleaded in the
appellant’s particulars of claim is assault, which is
recognized
in the law of delict as
actio iniuriarum
in which
assault is defined as an infringement of the right to bodily
integrity (physical and psychological) – see:
JC Van der
Walt and JR Midgley
: Principles of Delict, 3
rd
Edition
at p. 111, para 78; and the case of
Minister of Justice v Hofmeyer
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 145J-146A where the court stated:
“
One
of an individual’s absolute rights of personality is his right
to bodily integrity. The interest concerned is sometimes
described as
being one in
corpus
,
but it has several facts. It embraces not merely the right of
protection against direct or indirect physical aggression or the
right against false imprisonment. It comprehends also a mental
element. For present purposes a convenient summary of the position
is
to be found in W A Jouber’s
Grondslae
van die Persoonlikheidsreg
(1953)
at 131:
‘
(1)
Die reg
op fisiese integriteit
Die
geobjektiveerde regsgoed is hier nie die liggaam in die gewone
konkrete sin van die woord nie, maar
die hele fisies-psigiese kant
van die persoonlikheid
. Die mens het onder hierdie hoof 'n
persoonlikheidsreg t a v : die
liggaam
, waardeur hy beskerm
word teen enige fisiese aantasting daarvan, hetsy deur gewelddadige
besering, hetsy op meer indirekte wyse
soos deur die toediening van
gif, die veroorsaking van fisiese skokke, ens.; onafskeibaar van die
voorgaande, die
gesondheid
in volle omvang, insluitende die
verstandelike welstand; die
liggaamlike vryheid
, sodat hy
beskerm word nie net teen gevangehouding nie maar ook teen enige
belemmering van die bewegings-en handelingsvryheid;...."
[9]
The definition of assault is the same under both civil law and
criminal law. In criminal law, CR Snyman:
Criminal Law 4
th
Edition
(Lexis Nexis publication) in Chapter XVI defines assault
as the offence consisting of unlawful and intentional applying force,
directly
or indirectly, to the person of another; or inspiring a
belief in another person that force is immediately to be applied to
her.
In support of this definition the author makes reference, in
footnote 4, to the cases of
Jack
1908 TS 131
at 132-133; and
Marx
1962 (1) SA 848
(N) at 853.
[10]
The pleaded case of the appellant together with the material facts on
which it is based were set out in the particulars of
claim, the
relevant sections of which read in the following terms:
“
WRONGFUL
AND UNLAWFUL ASSAULT:
…
6.
On or about the
13 NOVEMBER 2012
at approximately 02h15,
unknown members of the South African Police Service more specifically
members of the Tactical Response Team,
3 African males and two white
males, wrongfully, unlawfully and forcibly, whilst pointing firearms
at Plaintiff and her family,
entered and searched Plaintiff’s
house situated at 31221 Joe Slovo Street, Joe Slovo, Port Elizabeth.
7.
At the time of the unlawful entry and search, Plaintiff was dressed
in a short pyjamas and
Plaintiff was recovering from a caesarian
operation.
8.
When Plaintiff asked the police officers permission to fully clad
herself she was told that
she could not and one of the officer pulled
the Plaintiff on by arm and threw Plaintiff down onto the cold floor.
9.
Plaintiff sustained injuries when she was pulled by the officer by
her arm and thrown to
the floor.
10. The
said members should and could have foreseen, when pulling the
Plaintiff on her arm and throwing her down
onto the floor that the
Plaintiff could and would sustain injuries as a result of their
unlawful actions.
11. As
a result of the wrongful, unlawful and intentional assault Plaintiff
sustained injuries and was seen by
Dr Shaun January on 19 November
2012
(See annexure marked NP1)
.
12. As
a result of the unlawful assault the Plaintiff suffered damages in
the sum of R50 000,00 as and for
general damages, pain and
suffering, shock and emotional trauma and
contumelia.
13. In
the premises, Defendant is liable to Plaintiff in the sum of
R50 000,00
, but notwithstanding demand, fails, refuses or
neglects to pay this amount or any portion thereof to Plaintiff…”
[11]
It is plain from the averments in paragraphs 6 to 13 of the
particulars of claims,
supra,
that the appellant relied on
numerous material facts pertaining to the unlawful conduct of the
police, of which pulling and throwing
the appellant to the floor are
a part.
[12]
Saddled with a duty to tender a plea that complies with subrules 6
(4) and 6 (5), the respondent
merely denied all the material facts
alleged in the particulars of claim without setting out the material
facts upon which the
denial of the material facts on the particulars
of claim was based. Rather, the respondent merely called upon the
appellant to
prove her case. In delictual claims based on assault the
onus
of proving that assault did take place is rests on the
claimant, the appellant in this instance. Once the commission of
assault
is proved at the trial, the defendant, the respondent in this
case, is saddled with a duty to satisfy the court that the assault
upon the appellant was justified. In this regard, the case of
Mabaso
v Felix
1981 (3) SA 865
(A) at 874 is apposite.
[13]
Pursuant to filing of pleadings as described, the trial commenced
whereupon the appellant testified
together with Mr B.R. Mbeyu, her
husband. Two witnesses testified on behalf of the respondent, namely:
Ms Mamb and Mr Fourie, the
members of the SAPS.
[14]
It remains necessary for this Court to recount the evidence in order
to reflect on the salient facts that have a bearing on
the issue(s)
raised in these appeal proceedings.
[15]
The appellant, her husband and two children were sleeping in their
house, situated in Joe Slovo
squatter camps, Port Elizabeth, when on
13 November 2012, and at approximately 02h15, the members of the SAPS
attached to the Tactical
Response
Unit (the
TRU)
ransacked the premises of the appellant. She heard a dog
barking outside, which alerted her to the presence of the police in
the
premises. At the same time that the dog was barking, the
appellant heard the voices: “We are police, police, open the
door,
open the door”. The police threatened to shoot the door
open if she and her husband did not open the door. The appellant’s
husband opened the door. Upon entering, the police pointed firearms
at them. The appellant’s husband was ordered to “get
down” whereafter he was tramped-on. Their daughter, also
pointed with a firearm, was the next to be so ordered. The appellant
too was ordered to “lie down”, which she had to do. That
order caused her to lie down onto the floor next to her husband,
and
she lay down on the side of her body (abdomen) on which she had a
recent caesarian operation. In describing how she got to
lie down to
the floor she said (at p
age 7 of the record):
“It is due to their force because their guns were on me
[indistinct] shoot me if I do not [indistinct]”.
When asked if
such lying down did cause injuries she said: “I felt
[indistinct] lay down because I was being forced and I
also lie on
this arm… It (
sic
)
was in pain… There is fully (
sic
)
a mark on the left elbow, it is a mark that is still there and it is
also in pain. And also the abdomen, the stomach [indistinct].
It is
now spreading to the leg also.” She alerted the police to the
fact that lying down was causing her injuries in this
manner: “When
I said to them (
sic)
about the operation they said: just lie (
sic
)
down or we will shoot you. Those were the words they uttered to me…
They did not care.”.
[16]
The appellant also testified that the police forcefully searched her
house for firearms that
were unknown to her. As the searching of the
house was unfolding, a two months old baby of the appellant, who she
had been caused
to leave on the bed, and later trapped under
suitcases that were placed on the bed and searched by the police,
started to cry loud
enough for the police to hear. But the police
just ignored the cry until the appellant herself cried, whereupon she
was allowed
to take care of the baby. According to the appellant the
presence of the police at her place attracted the presence of the
neighbours.
She mentioned two of the neighbours, Manyau and Ntuki.
[17]
When testifying under cross-examination, the appellant denied that
the police pulled her arm
and threw her to the floor. She repeated
the manner in which she was forced to lie down as testified in chief.
She was also confronted
with the version of the police witnesses,
which was not pleaded, that they did not visit the appellant’s
house on 13 November
2012; to which she replied that other police
officials whom she described as the TRU members, and conveyed on a
police vehicle
having green stripes, did visit her place of resident.
It also emerged that the appellant reported the incident to Kwa-Dwesi
Police
Station immediately after the members of the TRU had left her
house, but the status of the criminal case that had been registered
remains shrouded in mystery as the police have demonstrated lack of
appetite to refer the matter to court for prosecution.
[18]
In chief, Mr Mbeyu did not contradict the material evidence of the
appellant. He confirmed the
events that unfolded in his house and in
particular, that the police who visited him and the appellant were
those belonging to
the TRU, not the two police witnesses who
testified on behalf of the respondent, who they could identify had
the members of Kwa-Desi
police investigation unit cared to
investigate their complaint. He also testified that he was pointed
with a firearm and forced
to open the door and to lie down, but he
did not see how the appellant was caused to lie down as his attention
was focussed on
the policeman who was pointing a firearm at him.
[19]
The evidence of Ms Mamb and Mr Fourie
did not
shake the case of the appellant in any way. The thrust of the
evidence of these witnesses is that although they were involved
in
police patrols in Kwa-Zakhele Township and the Northern areas of Port
Elizabeth they did not reach Joe Slovo squatter camps.
However, it
emerged from the evidence of the police witnesses that certain TRU
members did conduct patrols in the area of Uitenhage,
Despatch and
Joe Slovo squatter camps during the time at which the appellant’s
house was ransacked and her bodily integrity
violated.
[20]
The evidence of police pocket books was adduced. Significantly it
transpired that the AVL records
which would indicate the location of
police vehicles at the material time relevant to the appellant’s
complaint did not appear
in their pocket books. The police witnesses
testified that they did not have AVL records in their possession at
any stage.
[21]
In dismissing the appellant’s claim the magistrate gave a set
of reasons, which he regarded
as being relevant to unlawful searching
of the appellant’s house, as follows:
(i)
The evidence of appellant and her husband did not differ;
(ii)
Ms Namb and Mr Fourie were not present a Joe Slovo squatter
settlement on 13 November
2012;
(iii)
It is possible that other members of the Police who were deployed
into the Northern areas
of Port Elizabeth to conduct patrols could
have reached the appellant’s place of residence at Joe Slovo
squatter camps;
(iv)
The entries on the pocket books of Ms Namb and Mr Fourie did not
place them in Jose Slovo
squatter camps;
(v)
The AVL records which could shed light on whether police vehicles did
reach the appellant’s
place of residence were not discovered in
terms of the rules of court due to the fact that the appellant did
not ask for them.
Therefore, the inference to be drawn from the
failure to make AVL records available and to call the evidence of Ms
Eric is that
the appellant avoided exposure to facts that are
unfavourable to her;
(vi)
The appellant failed to call the evidence of Manyau and Ntuki with
the result that the
presence of the police and their vehicles at her
place of residence could not be ascertained;
(vii)
There are two mutually destructive stories of both parties, which on
the application of the
principles stated in the case of
National
Employers General Insurance Co. Ltd v Jagers
1984 (4) SA 43
(E)
at 440H, requires the assessment of credibility of the appellant’s
evidence against the
onus
that is thrust upon her. Having said
that, the magistrate opined that appellant’s evidence was false
and that of the respondent
cannot be said to be false. As a result,
the appellant’s burden of proof in respect of wrongful arrest
and forcefully entry
was not discharged.
[22]
Further, in respect of wrongful, unlawful and intentional assault,
the magistrate penned another
set of reasons, which read:
“
The
Plaintiff’s amended particulars of claim reads as follows:
8.
When Plaintiff asked the police officers permission to fully clad
herself she was told that
she could not and one of the officers
pulled the Plaintiff on her arm and threw Plaintiff down onto the
floor.
9.
Plaintiff sustained injuries when she was pulled by the officer by
her arm and thrown to
the floor.
10. The
said members should and could have foreseen when pulling the
Plaintiff on her arm and throwing her down
onto the floor that the
Plaintiff could and would sustain injuries as a result of such
unlawful actions.
11. As
a result of the wrongful and intentional assault the Plaintiff
sustained injuries and was seen by Dr Shaun
January on the 19
th
November 2012 (see annexure NP1).
12. As
a result of the unlawful assault the Plaintiff suffered damages in
the sum of R50 000,00 as and for
general damages, pain and
suffering, shock and emotional trauma.
The Plaintiff gave
evidence that her lying down was informed by the police forcing her
whilst their guns were pointed at her in
other words she was told to
lie down or they will shoot her.
(“I did. When I said to
them about the operation they said just lay down or we will shoot
you
”). Her husband confirmed this that the Plaintiff was
told to lie down and that is how she fell to the right. It is
patently
clear that what was said by the Plaintiff and her husband is
contrary to what is stated in her papers. In
Kali v Incorporated
General Insurances Limited
1976 (2) SA 179(D)
at 182A it was
said:
“…
a
pleader cannot be allowed to direct the attention of the party to the
issue and then at the trial attempt to canvass another.”
In
Minister of Safety
& Security v Slabbers
(668/2009)
[2009] ZASCA 163
(30
November 2009) it was said:
“
The
purpose of pleadings it to define the issues for the other party and
the court. A party has a duty to allege in the pleadings
the material
facts upon which it relies. It is impermissible for the plaintiff to
plead a particular case and seek to establish
a different case at the
trial. It is equally not permissible for the trial court to have
recourse to issue falling outside the
pleadings when deciding a case.
Plaintiff’s
evidence and that of her husband clearly shows that she was not
pulled and was not thrown to the floor by the
members of the South
African Police Services as suggested in her papers. The said incident
was denied by the Defendant and Plaintiff
was put to the proof
thereof. It is trite that one stands and fall by his or her
pleadings. In my view and based on the reasons
stated above the
Plaintiff cannot succeed in her claim for wrongful, unlawful and
intentional assault.”
[23]
The upshot of the judgment of the magistrate is that the appellant’s
pleaded claim for assault was dismissed for two
reasons. The first
reason was that the appellant’s version is untrue because she
failed to cause AVL records to be discovered
and to call Manyau and
Ntuki to give corroborating evidence that would place the police at
the scene of crime. The second reason
is that the appellant’s
pleading that she was pulled and thrown down [to the floor] by a
policeman was not proved by her
oral evidence.
Mr Petersen,
counsel for the respondent, pinned his faith on the second
reason, arguing strenuously that the dismissal of the appellant’s
case based on the disavowal of the fact that she was pulled by the
arm and thrown to the floor puts paid to the appeal. I disagree
with
the magistrate for the reason that the approach that he adopted
towards both the evaluation of evidence application of the
principles
of pleadings was wrong.
[24]
The concession made by the police witnesses that although they and
members of their group did
not conduct patrol at Joe Slovo squatter
camps, there would have been other members of the SAPS belonging to
another group who
conducted patrols in the area of Joe Slovo squatter
camps as the deployment of police patrols covered the entire Port
Elizabeth
and the surrounding areas which included the Northern area
in which Joe Slovo squatter camps is situated. That concession
coincides
with the version of the appellant that the members of the
police with discernible identification features, not Ms Namb and Mr
Fourie
did conduct patrol in her place of residence. Further, in so
far as the respondent did not plead any version, weight ought not to
be accorded to the police evidence concerning AVL records that were
not even part of the record, let alone the fact that the appellant
never relied on the AVL records in both her pleadings and oral
evidence. And a need for the appellant to discover AVL records should
not have arisen. The appellant was not shown at the time when she was
testifying that she had concealed AVL records that contradict
her
assertion that she was assaulted by policemen whilst she was in the
tranquility of her house. In light of the fact that Manyau
and Ntuki
were not present in the house at time when the appellant was being
assaulted by the police it would not have been necessary
for the
appellant to call them to support her version, and the expectation
that those neighbours of the appellant would testify
against her is,
for lack of a better expression, a wild dream. In any event the
evidence of the appellant is an unshaken edifice
in my view. In the
circumstances the appellant’s evidence of identity features of
the policemen that she saw, and corroborated
by her husband, ought to
have been regarded as probable. It being so a dispute of material
fact(s) did not arise. The magistrate
himself accepted that the
evidence of the appellant was not contradicted by the police
witnesses; in as much as the respondent
did not proffer a
contradicting version in the plea. The issue of identification of
those policemen that assaulted the appellant,
and her husband, also
did not arise as the trial court was given the description of the
perpetrators of assault, with the appellant
having reported the
crimes of assault to the Kwa-Dwesi Police Station immediately after
the incident that gave rise to the claim.
In brief the magistrate
disregarded the proven material evidence of this case.
[25]
I now turn to the pleadings issue. To underscore the definition of
assault it must be said that
the pleaded assault is the same in both
civil law of delict and criminal law. I must re-state the elements of
assault to dispel
the notion that the evidence of the appellant
established a case that was not pleaded. It is trite law that since
the appellant’s
claim is classified as
actio iniuriarum,
the appellant did not have to allege and prove that the police who
assaulted her had the intention to do so. By definition of assault,
the force applied by the police to inspire a belief in the mind of
the appellant that she would be killed if she did not adhere
to the
instruction that she must lie down to the floor constitute assault.
The evidence of the appellant was that force, in the
nature of
pointing with a firearm at her coupled with issuance of verbal death
threats that forced her to lie down to the floor
with the result that
she got injured. Those are the material facts that were pleaded in
the appellant’s particulars of claim.
The appellant was, as a
fact, forced at gun point to lie down and she did so. In addition
thereto, pulling and throwing [to the
floor] were also the material
facts. On the one hand, pointing with a firearm and the issuance of
death threats and, on the other
hand, pulling and throwing constitute
separate and independent material facts. Each of those classes of
material facts coupled
with going down to the floor would did
inexorably cause physical and/or psychological injuries. And either
of those classes of
material facts as averred in the particulars of
claim would, if proved, entitle the appellant to the relief sought.
Therefore,
the exclusion of “pulling” and “throwing”
from the list of material facts would have informed the respondent
well before trial that the real issue for adjudication is whether, or
not, the appellant was assaulted by the members of the SAPS.
The oral
evidence that clarified the manner in which assault took place that
occasioned her bodily injuries did not establish a
different case of
assault in this matter. The same conclusion would certainly not
obtain had pointing with a firearm and death
threats, the material
facts, not been pleaded as being the reasons that caused the
appellant to lie on the floor where she was
again injured physically;
the injuries of shock and trauma having commenced at the time when
the police made a demand that the
door must be opened. Differently
put, the respondent’s failure to plead material facts for her
denials and testify in support
thereto was not caused by the evidence
of lying to the floor due to pointing with a firearm and verbal
threats that if the appellant
did not lie down she would be shot at
and killed. The real issue of assault never escaped the attention of
the respondent in this
matter. Even in a worse-case scenario of
unpleaded issues that has emerged during trial but which falls well
within the ambit of
the plaintiff’s case the courts have not
shied away from determining the real issue in litigation. In this
regard, in the
case of
Collen v Rietfontein Engineering Works
1948
(1) SA 413
(A) at 433 the following was said:
“
This
court … has before it all the materials on which it is able to
form an opinion, and this being the position it would
be idle for it
not to determine the real issue which emerged during the course of
trial.”
[26]
Regard being had to the cases of
Collen
and
Imprefed
(Pty) Ltd
which are referred to in paras. 24 and 6 above, it
seems to me that the problem that confronted the magistrate was the
failure
to apply
Rule 6
(4) of the rules of the Magistrates’
Court against the well-established principle of pleadings that in
considering the pleaded
material facts on which the cause of action
is based the trial court in which all the issues have been ventilated
in the evidence
it is vested with a wide discretion to determine
those facts, together with any other that has emerged during the
trial, in order
to decide the real issue(s) in dispute between the
parties as long as none of them is prejudiced thereby. That approach
is illustrated
in the case of
Kali
on which the magistrate
placed reliance for his judgment. In
Kali,
the plaintiff
claimed damages for defendant’s failure to repair accident
damage caused to his car in breach of the insurance
contract; to
which the defendant pleaded that since the plaintiff failed to give
immediate notice of the car accident in writing,
the condition of the
contract, payment was not due and payable. In the course of argument
on the merits the defendant sought to
amend the plea by introducing
an alternative defence that if oral notice was given, then it was not
confirmed in writing and delivered
to it as soon as possible. The
court held that the new defence cannot be allowed because it may
result in prejudice to the plaintiff
which cannot be cured by an
adjournment and an appropriate order as to costs. In this case the
magistrate did not canvass the issue
of prejudice. The attitude of
the courts towards pleadings in the Magistrates’ Court has
always been what Himstra J (as he
was then) said in
Alphedie
Investments (Pty) Ltd v Greentops Ltd
1975 (1) SA 161
at 161H:
“
The
Court is declined to look benevolently at pleadings, especially in
the magistrates’ court, so that substantial justice
need not
yield to technicalities, such a view was expressed,
inter
alia
, in
Odendaal
v Van Oudtshroon,
1968
(3) SA 433
(T) at p 436D. Nevertheless, the issues as defined by the
pleadings must not be lost sight of and a party cannot rely on causes
of action or on defences which were not put in issue and were
consequently not fully investigated.”
[27]
On the foregoing, the magistrate
erred
in the manner in which
he evaluated the evidence; and he misconstrued the pleadings on which
the evidence was led. Therefore, the
judgment of the magistrate falls
to be set aside.
[28]
The appellant’s claim was founded on assault, not unlawful
search. That much was conceded
by counsel for both parties. This
court having evaluated all the evidence that is relevant to the
assessment of an amount of damages,
referring the matter back to the
magistrate for
quantum
will work an injustice to the parties.
The amount of damages sought by the appellant is a sum of R50 000,00;
which is not
a huge amount of money if regard is had to the costs
already incurred at the trial and on appeal. Since the claim is not
founded
on unlawful search of appellant’s premises I will
consider only the comparable cases listed in the appellant’s
heads,
doing so subject to the requirements of fairness and justice.
The cases of
Funde v Minister of Police
(905/2010) ZAE CPRHC
92 (11 December 2012) seems to be comparable to the present matter on
the facts. An amount of R110 000,00
was awarded to a victim of
severe assault, a woman, but which was not accompanied by physical
injuries. In this case a sum of R50 000,00
is sought and in the
circumstances where physical injuries coupled with shock and insult
have been suffered. The injuries are in
the nature of bruises on the
firearm; scratch marks on the wrists; shock and pain in the thumb
nail and back-pain. The assault
was an insulting breach of the
appellant’s integrity, a protected right under the
Constitution. The police entered the appellant’s
house, and
searched it without a warrant having obtained to do so. She was
forced to wake up at 02h30, and to leave her 2 months
old baby on the
bed unattended. The plea of the appellant, made whilst lying on the
floor to be allowed to save the baby from being
buried under
suitcases that the police had pulled onto the bed to conduct unlawful
search was ignored until she cried in frustration.
These factors must
also be taken into account. The appellant was tormented by suffering
caused to her husband and children, including
the baby, at gun-point
to lie down to the floor. But the award that the court can make is
limited to R50 000,00 which is an
extremely fair award to be
made under the prevailing circumstances.
[29]
In the result, the following order shall issue:
1.
The appeal is
upheld.
2.
The judgment of
the magistrate is set aside, and is substituted with the following
order:
2.1
The
respondent to pay the amount of R50 000,00; with
2.2
Interest a
tempore morae
on the amount of R50 000,00 calculated at the prevailing
prescribed
mora
interest
rate of 15% per annum, from date of judgment in the Magistrates’
Court, to date of final payment.
3.
The respondent
to pay the costs incurred both in the Magistrates’ Court and an
appeal within 30 days after the date of taxation.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA
I
agree:
N.M.
MVUMBI
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant :
Adv. M. Du Toit
Instructed
by
: CAROL GESWINT ATTORNEYS
MAKHANDA.
Counsel
for the respondent :
Adv. P. Petersen
Instructed
by
: STATE ATTORNEY
MAKHANDA.