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[2019] ZAGPPHC 79
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Mofokeng v Minister of Police (2017/22851) [2019] ZAGPPHC 79 (19 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
YES
CASE
NO
:
2017/22851
DATE
:
19
TH
MARCH 2019
In
the matter between:
MOFOKENG,
TEBOGO
Respondent /
Plaintiff
And
MINISTER
OF POLICE
Applicant /
Defendant
JUDGMENT
ADAMS
J:
[1].
I shall refer to the parties as referred to in the main action. The
defendant in the main
action is the applicant in this application for
leave to amend, and the respondent herein is the plaintiff in the
main action.
[2].
A central issue in this opposed application by the defendant for
leave to amend his plea
relates to whether or not the proposed
amendment of the plea would render the plea excipiable. The defendant
applies for leave
to amend his plea in accordance with Uniform Rule
28(4). The defendant opposed the application.
[3].
The plaintiff's cause of action is for damages based on unlawful
arrest and detention.
In his particulars of claim, the plaintiff
pleads his case as follows:
'(3) On 23 June
2014 and at Sharpeville, in the province of Gauteng, the plaintiff
was wrongfully and unlawfully
arrested under Sharpeville Police CAS
202/06/2014 and thereafter wrongfully and unlawfully detained at the
Sharpeville police station
by a member of the South African Police
Services unknown to him and stationed at Sharpeville Police Station
until released from
custody on 24 June 2014 purportedly on a charge
of contempt of court. Plaintiff's notice in terms of the Constitution
is attached
hereto and marked as Annexure 'A'.
(4)
The
plaintiff's arrest and subsequent detention were unlawful in that:
(4.1) The said
member of the SAPS who arrested the plaintiff knew, alternatively,
ought to have known that no reasonable
or objective grounds or
justification existed for either the arrest or the detention of the
plaintiff;
(4.2) Knew or ought to
have known that the plaintiff will never be prosecuted for the
alleged crime for which she was
arrested;
(4.3) failed in his
official duty to perform such duties as required by law with due
regard to his powers and functions
and in a manner that was
reasonable under the circumstances;
(4.4) failed to
consider whether the detention of the plaintiff was necessary at all.
(5)
In
the event it is found by this Honourable Court that the
jurisdictional facts for arrest were present, which is still denied
by the plaintiff, then and in that event the plaintiff pleads that
the said member of the SAPS who effected the arrest failed to
exercise his discretion to arrest reasonably, properly,
constitutionally and lawfully in that:
(5.1) He failed
to appreciate that he had a discretion whether to arrest without a
warrant or not; or
(5.2) he
appreciated that he had a discretion whether to arrest or not but
nevertheless failed to consider
and apply that discretion reasonably,
properly and lawfully; or
(5.3) he failed to
apply his mind in considering whether or not to effect the arrest in
that:
(5.3.1)
he failed to consider and investigate all facts and
I
or
information before him;
(5.3.2) he
acted arbitrarily and capriciously in exercising a discretion whether
or not to arrest;
(5.3.3) he
failed to apply his mind in considering and deciding on possible and
milder means of bringing
the plaintiff before court;
(5.3.4)
he failed to appreciate that there were no grounds for infringing
upon the plaintiff's constitutional
rights because the plaintiff
presented no danger to society, the plaintiff might not have
absconded, the plaintiff could not have
harmed the others or herself,
the possible sentence that would be imposed would have been minimal.'
[4].
On the 12
th
of October 2017 the defendant gave notice of
intention to amend his plea. The effect of the intended amended is
that the defendant
would plead as follows to the aforegoing
paragraphs 3, 4 and 5 of the particulars of plaintiff's claim:
'(4.1) The defendant
admits that the plaintiff was lawfully arrested without a warrant on
the 23 June 2014, at or near
Sharpevlile , Gauteng, by members of the
South African Police Services and he was detained in police custody.
(4.2) The
defendant admits that the plaintiff remained in custody until he was
released on 24 June 2014 at the
Vereeniging Magistrates court.
(4.3) The
defendant pleads that the arrest of the plaintiff was lawful in that
the plaintiff was reasonably suspected
to have committed offences.
harassment and contempt of court, referred to Schedule 1 of the
Criminal Procedure Act, 51 of 1977
.
(4.4) The
plaintiff's arrest was legally justified in terms of
section 40(1)(b)
of the of the
Criminal Procedure Act.
(4.5
) The
defendant avers that the detention of the plaintiff until 24 June
2014 was lawful and justified in terms
of section 50 of the Criminal
Procedure Act, 51 of 1977.
(4.6) The
defendant denies that there were no reasonable or objective grounds
or justification for the arrest
and detention of the plaintiff.
(4.7) The
defendant further denies that the arresting officer failed to
exercise his discretion.
(4.8) The
defendant denies that the arresting officer failed to appreciate that
he had a discretion.'
[5].
The plaintiff objected to the defendant’s intended amendment of
his plea. The main
ground of the plaintiff’s objection to the
intended amendment is that the proposed amendment, if permitted,
would give rise
to a plea which does not disclose a defence to the
plaintiff's claim, which, in turn, would mean that the defendant's
amended plea
would be excipiable. Closely linked to this ground of
objection to the intended amendment is the contention by the
plaintiff that
the plea would fall foul of the mandatory requirements
of Uniform Rule of Court 18(4) and (5) in that the plea would not set
forth
a clear and concise statement of the material facts with
sufficient particularity to enable the plaintiff to reply thereto.
The
plaintiff therefore contends that the proposed amendment would
render the plea excipiable on the basis that it would give rise to
a
pleading which does not disclose a cause of action against the
plaintiff.
[6].
In sum the defendant's case, as pleaded in the proposed amended plea,
is that the arresting
officer suspected the plaintiff of having
committed offences, namely harassment and contempt of court, which
are offences referred
to in schedule 1 of the Criminal Procedure Act,
51 of 1977 ('the CPA'). The defendant therefore pleads this essential
fact that
the plaintiff was arrested because he was suspected of
having committed schedule 1 offences. The defendant also admits the
facts
relating to the arrest and detention of the plaintiff by
members of the SAPS, as pleaded by the plaintiff in his particulars
of
claim. Thereafter, the defendant pleads the legal conclusion that
the arrest and detention of the plaintiff was justified in terms
of
the provisions of section 40 (1)
(b)
of the CPA.
[7].
The plaintiff opposed the defendant's proposed amendment on two
grounds, namely that the
intended amendment lacks averments which are
necessary to sustain a defence to the plaintiff's claim; and that the
amendment fails
to set forth a clear and concise statement of
material facts with sufficient particularity to enable the plaintiff
to reply. What
the plaintiff says is that the proposed amendment
would render the defendant's plea excipiable on the grounds set out
in his notice
of objection and in those circumstances the amendment
ought not to be allowed.
[8].
In my judgment, the defendant does set out the facts which constitute
the premises on which
his defence is based, that being that the
arresting officer had a reasonable suspicion that the plaintiff had
committed offences
which are referred to in schedule 1 of the CPA.
This is a fact pleaded by the defendant, which, if read with his
admission that
the plaintiff was indeed arrested and detained as
alleged by him in his particulars of claim, in my view sets forth in
clear and
concise terms the material facts with sufficient
particularity to enable the plaintiff to replicate (if necessary).
[9].
It is trite that a court should endeavour to look benevolently
instead of over - critically
at a pleading, and it must be looked at
as a whole. If there is any uncertainty in regard to a pleader's
intention an excipient
cannot avail himself thereof unless he shows
that upon any construction of the pleadings the claim is excipiable.
In that regard
see:
Amalgamated Footwear
&
Leather
Industries Jordan
& Co
Ltd,
1948 (2) SA 891
(C) at
893.
[10].
The plaintiff avers that the proposed amended plea lacks averments
which are necessary to sustain
a defence. In essence, it is the
plaintiff's argument that the amended plea is excipiable because it
does not comply with rules
18(4) and 18(5) of the uniform rules.
[11].
These rules provide:
'(4). Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies
for his claim, defence or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party
to reply thereto.
(5). When in any
pleading a party denies an allegation of fact in the previous
pleading of the opposite party,
he shall not do so evasively, but
shall answer the point of substance.'
[12]. It
is so that proper pleading involves pleading statements of fact,
rather than law, facts that are
material only, facts rather than
evidence and facts in summary form. As is expressly stated in rule
18(4), those facts must be
pleaded with sufficient particularity to
enable a party to reply to them. Statements of opinion or conclusions
have no place in
pleadings. In that regard, Mr Msaule, who appeared
on behalf of the plaintiff, referred me to
Buchner
&
another v Johannesburg Consolidated Investment
Co
Ltd,
1995
(1) SA 215
(T), in which case De Klerk J, after referring to rule
18(4) set out the position thus:
'The necessity to plead material
facts does not have its origin in this Rule. It is fundamental to the
judicial process that the
facts have to be established. The Court, on
the established facts, then applies the rules of law and draws
conclusions as regards
the rights and obligations of the parties and
gives judgment. A summons which propounds the plaintiffs own
conclusions and opinions
instead of the material facts is defective.
Such a summons does not set out a cause of action. It would be wrong
if a Court were
to endorse a plaintiffs opinion by elevating it to a
judgment without first scrutinising the facts upon which the opinion
is based.'
[13].
Plaintiff's Counsel also referred me to the unreported judgment of
Windvogel v Minister of Police,
[2013] JOL 30984
(ECP), a
judgment of Plasket J, which was handed down on the 28
th
of June 2013. The court in that matter, which, accordingto Mr Msaule,
is on all fours with this matter, noted that no particularity
was
provided as to when on the 24
th
of October 2010 and where
in Port Elizabeth the arrest of the plaintiff in that matter
occurred. The court also noted that no clear
and concise statement of
the material facts forms part of the plea as to what it was alleged
the plaintiff did in order to commit
the offence of malicious injury
to property or to attempt to commit that offence. The problem was
compounded, so Plasket J held,
because the defendant pleaded that the
arrest was either justified by s 40(1)(b) or by
s 40(1)(a)
of the
Criminal Procedure Act 51 of 1977
. These sections authorise peace
officers to arrest in different circumstances namely, in the case of
s40(1)(b)
, when the peace officer reasonably suspects that the
arrestee has committed a Schedule 1 offence and, in the case of
s
40(1)(a)
, when the arrestee commits or attempts to commit an offence
in the presence of the peace officer. No facts were pleaded in that
regard, so the Judge concluded, to justify either or both of the
alternative conclusions that are pleaded. The court also concluded
that the plea was simply a bald conclusion, not based on any material
facts, that the arresting officer's discretion to arrest
was not
exercised unreasonably or irrationally - and hence unlawfully.
Plasket J accordingly concluded that the exceptions taken
to the
defendant's plea were well - taken and therefore upheld them.
[14]. The
Windvogel
matter is clearly distinguishable from the matter
before me.
In casu
the defendant intends pleading that
factually the arresting police officer reasonably suspected the
plaintiff of having committed
the offences in question. That was not
the case in the
Windvogel
matter. This, in my view, is an
important distinction. Secondly, in the
Windvogel
matter the
defendant pleaded that the arrest and detention was justified in
terms of the provisions either of
section 40(1)(b)
or
section
40(1)(a)
of the CPA. These sections authorise peace officers to
arrest in different circumstances. No facts were pleaded in that
regard,
so the Judge found, to justify either of both of the
alternative conclusions that were pleaded. This, in my view, was an
important
consideration in the
Windvogel
matter, and an aspect
which led to the conclusion reached in that matter.
[15]. I am
therefore of the view that the proposed amended plea complies with
the provisions of
rule 18(4)
and (5) in that in the amended plea
indeed contains a clear and concise statement of the material facts
upon which the defendant
relies for his defence. The defendant states
that the plaintiff was suspected of having committed the offences in
question. The
suspicion was reasonable. The defendant, in my
judgment, is stating the facts that are material, in summary form.
What more should
the defendant have stated, I ask rhetorically. To
require that the defendant's statement contained more than what is in
the intended
plea would require of the defendant to state evidence in
addition to stating the material facts.
[16]. In
the circumstances, I am of the view that there is no merit in the
plaintiff's objections to the
proposed amended defendant's plea. If
regard is had to the legal principles relating to the excipiability
of pleadings on the basis
that same does not disclose a cause of
action, it cannot be said that the proposed plea, read as a whole,
does not disclose a cause
of action. The defendant's defence, as
spelt out clearly and concisely by the intended amended plea, is that
the arrest and detention
was justified as the plaintiff was
reasonably suspected of having committed a schedule 1 offence.
[17]. The
defendant should therefore be granted leave to amend his plea as per
his notice of intention to
amend.
Costs
[18]. The defendant,
in applying for leave to amend his plea, is asking for an indulgence
from the court. This means
that he is liable to pay the cost of the
application for leave to amend.
[19]. The
plaintiff, on the other hand, should pay the cost of the opposition
to the application. This cost
order would however be cancelled out to
a lesser or greater extent by the cost order to which the defendant
is entitled. Additionally
, I am of the view that quantum of the
plaintiff's claim, however one views it, cannot possibly be close to
an amount which exceeds
the jurisdiction of the Magistrates Court.
The plaintiff was arrested on the 23
rd
of June 2014 and
released on the 24
th
o f June 2014, which means that the
plaintiff was detained for approximately 24 hours. In my view, this
action should have been
instituted in the Magistrates Court, and by
proceeding in the High Court the plaintiff is abusing the processes
of this Court.
This action alone is deserving of censure especially
since we are here dealing with public funds.
[20].
Conversely, it is also true that the conduct of the legal
representatives on behalf the Minister of
Police leaves much to be
desired. The rules of this court have been totally disregarded by
them. They have delayed, unnecessarily
so, the finalisation of the
defendant's application for leave to appeal and therefore the main
action between the parties. The
defendant's notice of intention to
amend was delivered as far back as the 1ih of October 2017 . The
plaintiff objected on the 20
th
October 2017 to the
intended amendment and the application for leave to amend was filed
only on the 11t h of May 2018 .
[21].
Both parties in this matter are not before court with clean hands.
[22]. I am
therefore of the view that no order as to cost would be fair,
reasonable and just to all concerned.
Therefore, in the exercise of
my discretion I intend granting no order as to costs. This also
relates to the wasted costs occasioned
by the postponement of the
hearing of the opposed application on Tuesday, the 12
th
of
March 2019 , which is the date on and time at which the application
was to be heard according to the official opposed roll published.
On
that day the defendant asked that the matter stand down to enable his
Counsel to prepare to argue the application on the merits.
Up to that
point the defendant intended withdrawing the application, but the
plaintiff refused to accept such withdrawal and insisted
that the
application be argued.
Order
Accordingly,
I make the following order:
1.
The
defendant is granted leave to amend his plea as per his notice of
intention to amend in terms of
rule 28
dated the 12
th
of October 2017.
2.
There
shall be no order as to cost relative to this application for leave
to amend.