Bisha and Others v Minister of Police (4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020) [2021] ZAECMHC 24 (13 July 2021)

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[2021] ZAECMHC 24
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Bisha and Others v Minister of Police (4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020) [2021] ZAECMHC 24 (13 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NOS: 4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020
In
the matters between:
LUCAS
BISHA

PLAINTIFF
NTOMBIKHONA
ZIKALALA                                                                   PLAINTIFF
KHOLISWA
STUNGWA                                                                             PLAINTIFF
SANELE
MLAMBO
PLAINTIFF
CEBO
RASHALALA

PLAINTIFF
NKOSITHETHILE
MAFA                                                                          PLAINTIFF
and
MINISTER
OF POLICE

DEFENDANT
JUDGMENT
BROOKS
J:
[1]
On 12 April 2021 the Judge President issued a directive (the
directive) in the following
terms:
DIRECTIONS
GOVERNING THE SETTING DOWN OF UNDEFENDED
UNLIQUIDATED
CLAIMS FOR DAMAGES
WHEREAS
rule 31(2)(a) of the Uniform Rules of Court makes
provision for the grant of judgment by default against a defendant in
a claim that
is not for a debt or liquidated demand, after hearing
evidence;
WHEREAS
a proper assessment of an appropriate award in
undefended actions in which unliquidated damages are claimed can
properly be made after
hearing oral evidence;
WHEREAS
motion proceedings are not suited to
the prosecution of claims for unliquidated damages; and
WHEREAS
a proper invocation of rule 31(2)(a)
has resulted in default judgment applications wherein there is a need
to lead oral evidence being
removed from the motion court roll,
NOW, THEREFORE:
1.
Default judgment applications in which
unliquidated damages are claimed shall, by arrangement with the
Registrar at each one of the
Centres in this Division, be set down
for hearing on a daily trial roll during the first two weeks and the
last two weeks of each
term.
2.
The –
2.1
Joint Rules of Practice for the Eastern
Cape High Court;
2.2
Directions for the Management of the
High Court, Eastern Cape During the National State of Disaster dated
12 May 2020; and
2.3
Case Flow Management Practice Directive
dated 25 February 2019,
shall,
with necessary adaptations, apply to the setting down of the default
judgment applications.
[2]
The six matters before this court are all applications for judgment
by default against
the Minister of Police (the defendant) in which
unliquidated damages are claimed. Notwithstanding the promulgation by
the Judge President
of the directive two weeks earlier, on 28 April
2021 these matters appeared on the roll in a motion court in Mthatha
over which the
Judge President presided. He issued a composite order
in respect thereof and in the following terms:
“
1.
The default judgment applications shall, in terms of
section 14(1)(a)
of the
Superior Courts Act 10 of 2013
[1]
,
be heard by a full court of this division constituted for purposes of
determining the propriety or otherwise of setting down claims
of this
nature in motion court and any issue ancillary thereto.
2.
The full court shall sit on Friday, 18 June
2021 at 09h30.
3.
Further directions determining the future
conduct of these matters shall be issued in due course.
4.
The costs of 28 April 2021 shall stand over
for determination by the full court.”
[3]
Acting in accordance with the order issued by the Judge President,
this court convened
a case flow management meeting with the legal
representatives who had appeared in these matters on 28 April 2021.
Pursuant thereto,
on 12 May 2021 a case flow management directive was
issued in the following terms:
“
1.
The parties have agreed that case no 4144/2020 Lucas Bisha v Minister
of Police will proceed and the parties in all other matters
have
agreed to abide by the decision in that matter.
2.
The plaintiff is to file heads of argument on or before 25 May 2021.
3. The defendant is
to file heads of argument on or before 8 June 2021.
Legal
practitioners to file and email their heads of argument to the
judges’ secretaries…”
[4]
In supplementary heads of argument prepared by Mr
Pienaar
SC
and Mr
Mapoma
,
who appeared on behalf of the defendant, the legality of the
directive received specific attention. The court was referred to
Rossitter
and Others v Nedbank Ltd
[2]
in
which the Supreme Court of Appeal stated
[3]
that a practice manual or a directive duly promulgated by the Judge
President of a Division of the High Court has the same force
and
effect as the Uniform Rules of Court.
[4]
In
addition, the power of a Judge President to issue directives
pertaining to his or her Division is recognised in the provisions
of
rule 37A(1) of the Uniform Rules of Court.
[5]
[5]
When called upon to indicate what the plaintiffs’ attitude was
towards the directive,
Mr
Matotie,
who
appeared on their behalf, indicated that there was no challenge to
the legality of the directive, which was accepted, and that
the only
issue to be determined by the court was whether its content was
applicable to the matters before the court. The concession
was well
advised. The statutory authority of a Judge President to issue
directives in respect of the management of cases in his or
her
Division, and the status of such directives, is well established.
Furthermore, section 173 of the Constitution
[6]
gives
the
High Court the inherent power to protect and regulate its own
process, taking into account the interests of justice. It is clear
from a reading of the directive that its purpose is to facilitate and
regulate in an orderly manner the right of access to court.
[6]
In essence, the argument advanced on behalf of the plaintiffs in
justification of the
enrolment of the applications for default
judgment in the motion court subsequent to the issue of the directive
is as follows. They
are to be distinguished from other applications
for default judgment to which the provisions of the directive would
be applicable
(for example applications for default judgment against
the Road Accident Fund). The reason for the distinction is identified
as flowing
from the cause of action, the fact that each plaintiff
claims an unliquidated amount as damages because he or she was
arrested unlawfully,
without a warrant of arrest having first been
issued, by members of the South African Police Service (the SAPS) who
were on duty
at the time and acted within the course and scope of
their employment with the defendant. In such circumstances, in terms
of the
provisions of section 2 of the State Liability Act
[7]
the
defendant is vicariously liable for the wrongdoing of members of the
SAPS and will be liable for the payment of such damages as
each
plaintiff may prove on a balance of probabilities. Whilst it is
accepted that the plaintiffs bear the
onus
of
establishing the nature and extent of the damages they have suffered,
the argument advanced is that where a plaintiff alleges that
he or
she has been unlawfully arrested by members of the SAPS, the
defendant bears the
onus
of
establishing that the arrest was lawful. This is because an arrest is
prima
facie
unlawful.
Where an arrest occurs without a warrant, the defendant must be able
to establish that it was lawful, for example by establishing
that the
arrest was conducted in circumstances envisaged in section 40 (1) (b)
of the Criminal Procedure Act.
[8]
Where the defendant is in default of filing a notice of intention to
defend the matter and there is no plea that raises a factual
and
legal basis in justification of the arrest without a warrant, so the
argument goes, the plaintiffs need do no more than place
the matter
on the motion court roll, placing reliance on the fact that the
prima
facie
unlawfulness
of the arrest is not displaced by any justification pleaded on behalf
of the defendant and therefore entitling the plaintiffs
to seek
judgment in circumstances where they are unaffected by the provisions
of the directive.
[7]
There is a fundamental flaw in the argument advanced on behalf of the
plaintiffs. All
the authorities that the court was referred to in
support of the fact that the defendant bears the
onus
of
proving the lawfulness of an arrest which occurred in circumstances
without the prior issue of a warrant of arrest are distinguishable
from the matters before the court. In all the authorities that the
court was referred to, the statement that the defendant “bears
the
onus
of
proof” is made against the background of a set of pleadings in
which the defendant has filed a plea in response to the plaintiffs’
particulars of claim. In each instance, the fact of the arrest relied
upon by the plaintiffs was admitted by the defendant. This
relieved
the plaintiffs of the burden of proving the arrest. It also
introduced a factual basis upon which the defendant was then
expected
to justify the arrest without a warrant in order to avoid liability
for any damages claimed by the plaintiffs. In circumstances
where the
arrest without a warrant is admitted by the defendant, it is trite
that the defendant bears the
onus
of
proof relied upon by the plaintiffs in the matters before the court.
See, for example,
Zealand
v Minister of Justice and Constitutional Development and Another
[9]
[8]
In a judgment in which he and the other members of the full court
concurred in the judgment
of Mhlantla JA in the Supreme Court of
Appeal
[10]
Harms DP stated:
[11]
“
The
right to dignity and freedom and security of the person are core
values of the Constitution and any arrest and detention of a
person
amounts to a
prima facie
infringement
of these rights. Our common law adopted the same approach and it is
for this reason that the police, if challenged, have
to justify an
arrest and detention. This means that the police bear the onus of
proving that the arrest and detention are not wrongful.
The
onus can arise only after the issue itself has arisen. The aggrieved
person must claim that a particular arrest or detention was
wrongful
before the police are saddled with this onus.”
[9]
The
dicta
of
Harms DP cited in the preceding paragraph perhaps beg the question as
to when the issue of arrest can be said to have “arisen”
before a
court that is to evaluate a claim for damages based upon an unlawful
arrest.
[10]
The answer to the question posed in the preceding paragraph involves
a twofold enquiry. The first element
relates to the appropriate
manner in which a claim for damages based upon an unlawful arrest is
to be presented. The second element
relates to the appropriate manner
in which such a claim is formulated.
[11]
Would it be appropriate to present such a claim in motion
proceedings? The nature of motion proceedings
has been restated
[12]
in the following terms:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.”
[12]
It is trite that a decision whether to proceed by way of action or by
way of motion proceedings is informed
by the extent to which a
material dispute of fact can be anticipated by the party launching
the proceedings. When a
bona
fide
dispute
of fact is anticipated an action should be instituted.
[13]
By its very nature, a claim for damages based upon an unlawful arrest
involves inevitable disputes of fact. Accordingly, it is not
appropriate to present such a claim in motion proceedings.
[14]
[13]
The element of the enquiry relating to the manner in which such a
claim is to be formulated is addressed
in the following statement by
Theron J
[15]
(footnotes
omitted):
“
A
delict comprises wrongful, culpable conduct by one person that
factually causes harm to another person that is not too remote. When
the harm in question is a violation of a personality interest caused
by intentional conduct, then the person who suffered the harm
must
institute the
actio iniuriarum
(action
for non-patrimonial damages) to claim compensation for the
non-patrimonial harm suffered. The harm that the applicant complains
of in respect of his detention is the deprivation of his liberty –
a significant personality interest. He alleges that it was his
wrongful arrest that caused the harm (namely, the detention before
and after his court appearance).
A claim under the
actio iniuriarum
for unlawful arrest and detention has
specific requirements:
(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.”
[14]
The institution of an
actio iniuriarum
is achieved by the issue of a combined
summons in which the material facts that establish the specific
requirements of the action
are set out clearly in the particulars of
claim. This is the procedure which has been adopted by the plaintiffs
in the matters which
serve before this court.
[15]
In its crudest form, a summary of the argument presented on behalf of
the plaintiffs can be stated as
being that the mere presentation of a
combined summons which includes particulars of claim in which the
fact of the occurrence of
an unlawful arrest is pleaded is sufficient
to establish that fact. In other words, upon the mere presentation of
an allegation of
an unlawful arrest the issue of the wrongfulness
thereof can be said to have “arisen”. A determination of whether
or not there
is merit in this approach lies at the heart of the
inquiry before the court.
[16]
It is a well-established principle that once a fact alleged in the
particulars of claim has been admitted
in the defendant’s plea, it
is eliminated from the issues to be tried, and the plaintiff is
relieved of the duty of bringing evidence
to establish it.
[16]
[17]
In the absence of an admission contained in a plea, the plaintiff has
a duty to bring evidence to establish
the facts upon which reliance
is placed for the relief sought in the particulars of claim.
[18]
In order for a plaintiff to succeed in his or her claim, the
facta
probanda
(the
facts which must be proved in order to disclose the cause of action)
must be alleged in the particulars of claim. The following
definition
of “cause of action” was accepted by the Appellate Division in
McKenzie
v Farmers’ Cooperative Meat Industries Ltd:
[17]
“
every
fact 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.”
[19]
It follows that the
facta probanda
are
the material facts which a party must prove in order to succeed in a
civil action. In the absence of an admission on the part
of the
defendant, the
facta probanda
can
only be proven by way of placing acceptable evidence before the
court. In action proceedings such as those instituted by the
plaintiffs,
such evidence ordinarily should be
viva
voce
evidence. Only once acceptable
evidence has been given by the plaintiffs to establish their identity
and the facts and circumstances
pertaining to their arrest without a
warrant can the issue of the wrongfulness thereof be said to have
“arisen” before the court.
Only then can the
onus
upon the defendant to establish that
the arrest was not wrongful arise.
[20]
It follows from the analysis of the various legal principles set out
in this judgment that the applications
for default judgment presented
by the plaintiffs are no different from any other applications for
default judgment which contain
claims for unliquidated damages. They
fall squarely into the provisions of rule 31 (2) (a) of the Uniform
Rules of Court. Judgment
can only be granted in favour of the
plaintiffs after the court has heard appropriate evidence.
Accordingly, they fall squarely into
the category of applications for
default judgment targeted by the Judge President in the directive.
[21]
In their quest to avoid the impact of the directive it is of no
assistance to the plaintiffs to introduce
applications for the
separation of the issues relating to the merits of the actions from
the issues relating to the
quantum
of
their unliquidated damages. Such applications are based upon the
provisions of rule 33 (4) of the Uniform Rules of Court.
[18]
The
aim would be to seek an order which has the effect of isolating the
issues relating to the
quantum
of the plaintiffs’ claims and postponing them to the civil trial
roll for determination after appropriate evidence has been led
inter
alia
from
the plaintiffs. The hope would be that the remaining issues relating
to the merits of the plaintiffs’ claims would then be
disposed of
by way of the applications for default judgment in motion court. This
approach is without merit. The court has a wide
discretion under the
sub-rule which is to be exercised judicially with due consideration
for what would be convenient.
[19]
The sub-rule contemplates a procedure which is aimed at facilitating
the convenient and expeditious disposal of litigation.
[20]
If
an order of separation were to be granted, it would result in the
postponement of that part of the proceedings relating to the
quantum
of
the damages claimed. Inevitably, this would result in a delay before
finality in the litigation is achieved. It would also result
in an
increase in the costs of the litigation. It would also result in the
plaintiffs having to appear twice in court, once to give
evidence
relating to the fact and circumstances of the arrest without a
warrant with which they were visited and on a subsequent
occasion in
order to give evidence relating to the non-patrimonial damages which
they allege flowed from the arrest. There would
be an inevitable
duplication in the evidence required of the plaintiffs because the
personal circumstances of the plaintiffs and
the circumstances in
which the arrest occurred are relevant also to the assessment of an
appropriate award of damages. It is highly
unlikely that a court
would be persuaded that the factors of delay in the finalisation of
the litigation, the increase in costs thereof
and the duplication of
evidence to be led from the plaintiffs are factors demonstrative of
“the convenient and expeditious disposal”
of the litigation. Even
if I am wrong in this assessment, an order granted under rule 33 (4)
of the Uniform Rules of Court in no
way obviates the need for the
plaintiffs to place appropriate evidence before the court to prove
the occurrence and circumstances
of the arrest. The need to lead oral
evidence remains and the applications for default judgment would
still fall within the category
referred to in the directive.
[22]
A final argument advanced on behalf of the plaintiffs as a means to
avoid the impact of the directive
on their applications for default
judgment is the submission that it is open to the plaintiffs to place
the necessary evidence relating
to their identity and the
circumstances surrounding the occurrence of the arrest in an
affidavit, thereby avoiding the need to appear
and give
viva
voce
evidence
and removing the matters from the category referred to in the
directive. Reliance for the permissibility of such an approach
was
placed upon an unreported judgment in this court in the matter of
Minister
of Police v Lusindiso Nongwejane
.
[21]
The
specific paragraph relied upon
[22]
reads as follows:
“
Normally
the
quantum
of
damages should be established by oral evidence, but in special
circumstances the court may accept evidence on affidavit.
[23]
Neither the content of the particulars of claim nor the content of
the brief affidavit filed in support of the application for default
judgment disclose special circumstances which would justify the
acceptance of evidence on affidavit.”
However,
one might read the passage from the judgment cited above it provides
no support or authority for the alternative argument
advanced on
behalf of the plaintiffs. That argument contends for the ability of a
plaintiff to establish the merits of his or her
actio
iniuriarum
by placing an affidavit
before court in support of an application for judgment by default.
Not only is such an approach not supported
by the authority cited,
and the authority therein cited in turn, but it is in direct conflict
with all the legal principles discussed
in this judgment in
conjunction with the enquiry as to the appropriate manner in which to
proceed with a claim for unliquidated damages
that is based upon an
unlawful arrest.
[23]
In all the circumstances, the conclusion reached by the court is that
it is inappropriate to set down
applications for default judgment in
motion court where the claims are based upon unlawful arrest and
detention and seek the recovery
of unliquidated damages. The
directive is applicable to such applications.
[24]
There having been no adjudication upon the merits or the
quantum
of any of the matters before the court,
it would be appropriate to order that they simply be removed from the
roll. The further conduct
thereof shall be guided by the provisions
set out in the directive.
[25]
The fact that no order will be made on the merits or
quantum
of the applications for default
judgment before the court is relevant to the consideration of an
appropriate costs order. In essence,
the decision reached by the
court carries the necessary implication that the plaintiffs were
wrong in setting down their applications
for judgment by default on
the motion court roll for 28 April 2021. They did so notwithstanding
the clear provisions of the directive.
An examination of the court
files reveals that in some instances, prior to the promulgation of
the directive, the plaintiffs had
presented applications for judgment
by default in motion courts held on earlier dates. These were
prompted by the failure on the
part of the defendant to enter an
appearance to defend the actions. They were met in court by a legal
representative of the defendant
who struck an agreement that the
applications for default judgment be withdrawn with the defendant to
pay the costs thereof. An order
reflecting the terms of the agreement
was then obtained. One can assume with safety that the underlying
objective was stated to be
the intention to file a notice of
appearance to defend. For reasons not apparent on the material before
this court, this intention
was not fulfilled. This in turn led to the
drafting of fresh applications for judgment by default and their
presentation, ultimately,
on the motion court roll of 28 April 2021.
The pattern is all too familiar. Central thereto would appear to be
an almost consistent
failure on the part of the defendant to furnish
the State Attorney with timeous and appropriate instructions
subsequent to service
upon those offices of summonses in which claims
of this nature are set out. The frustration felt by those
representing the plaintiffs,
who in turn want their matters to be
handled expeditiously to their conclusion, is obvious.
[26]
When due consideration is given to all the factors referred to in the
preceding paragraph of this judgment,
the most appropriate approach
would appear to be that no order is made in respect of the costs
occasioned by the conduct of the proceedings
before this court or
those before the Judge President on 28 April 2021.
[27]
The following order will issue:
1.
The applications for default judgment are removed from the roll.
2. No order for
costs is made in respect of these proceedings or the costs that were
reserved on 28 April 2021.
R W N BROOKS
JUDGE
OF THE HIGH COURT
DAWOOD
J:
I agree.
F B A DAWOOD
JUDGE
OF THE HIGH COURT
TOKOTA
J:
I agree.
B R TOKOTA
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel for the
plaintiffs     :
Adv L Matotie
Instructed
by
:
V V Msindo & Associates
48
Wesley Street
MTHATHA
Counsel for the
defendant :
Adv B J Pienaar SC and
Adv
S X Mapoma
Instructed
by
:
State Attorney
Broadcast
House
94
Sisson Street
Fort
Gale
MTHATHA
Date
heard
:
18 June 2021
Date
delivered
:
13 July 2021
[1]
The
section reads as follows: “Save as provided for in this Act or any
other law, a court of a Division must be constituted before
a single
judge when sitting as a court of first instance for the hearing of
any civil matter, but the Judge President or, in the
absence of both
the Judge President and the Deputy Judge President, the senior
available judge, may at any time direct that any matter
be heard by a
court consisting of not more than three judges, as he or she may
determine.”
[2]
(96/2014)
[2015] ZASCA 196
(1 December 2015).
[3]
Par
[15].
[4]
The
Supreme Court of Appeal relied upon a judgment by Alkema J in
National
Pride Trading 425 (Pty) Ltd v Media 24 Ltd
2010
(6) SA 587
(ECP) at paragraph [31]. The judgment of the full bench
in
Harmony
Caterers (Pty) Ltd v Ford
2002
(5) SA 536
(WLD) sets out the history of the statutory power of a
Judge President to make rules for his or her particular Division.
[5]
The
sub-rule reads as follows: “(1) A judicial case management system
shall apply, at any stage, after a notice of intention to
defend is
filed – (a) To such categories of defended actions as the Judge
President of any Division may determine in a Practice
Note or
Directive; and (b) To any other proceedings in which judicial case
management is determined by the Judge President, of
own accord, or
upon the request of a party, to be appropriate.”
[6]
Constitution of the Republic of South Africa 1996.
[7]
Act
20 of 1975.
[8]
Act
51 of 1977.
[9]
[2008] ZACC 3
;
2008
(4) SA 458
(CC) paras [24] and [25].
[10]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 474
SCA.
[11]
Pars
[20] and [21].
[12]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) par [26].
[13]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions Ltd
1949
(3) SA 1155
(T) at 1161.
[14]
See, for example,
Malema
v Rawula
(139/2020)
[2021] ZASCA 88
(23 June 2021) par [29].
[15]
De
Klerk v Minister of Police
2020
(1) SACR 1
(CC) pars [13] and [14].
[16]
Taylor
v Budd
1932
AD 326
;
Gordon
v Tarnow
1947
(3) SA 525
(A);
Van
Deventer v De Villiers
1953
(4) SA 72
(C) at 75; Section 15 of the Civil Proceedings Evidence
Act 25 of 1965.
[17]
1922
AD 16
at 23.
[18]
The
rule provides as follows:
“
If,
in any pending action, it appears to the court
mero
motu
that there is a question of law
or fact which may conveniently be decided either before any evidence
is led or separately from any
other question, the court may make an
order directing the disposal of such question in such manner as it
may deem fit and may order
that all further proceedings be stayed
until such question has been disposed of, and the court on the
application of any party
shall make such order unless it appears
that the questions cannot conveniently be decided separately.”
[19]
Vermeulen
v Phoenix Assurance Co Ltd
1967
(2) SA 694
(O) at 697A-B.
[20]
Bank
van die Oranje Vrystaat Bpk v OVS Kleiwerke (Edms) Bpk
1976
(3) SA 804
(O);
Dowson
and Dobson Industrial Ltd v Van der Werf
1981
(4) SA 417
C at 420E.
[21]
(CA&R
63/2015) (24 November 2015)
[22]
Par
[14]
[23]
New
Zealand Insurance Co Ltd v Du Toit
1965
(4) SA 136
(T).