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[2018] ZAECMHC 35
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Sabisa and Another v Minister of Police (2889/2016) [2018] ZAECMHC 35 (31 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no. 2889/2016
Date
heard: 13/06/18
Date
delivered: 31/07/18
Reportable
In
the matter between:
THANDEKILE
NELSON
SABISA
1
st
Plaintiff
LAWRENCE
NZIMENI
MAMBILA
2
nd
Plaintiff
and
MINISTER
OF
POLICE
Defendant
RULING
IN TERMS OF RULE 39 (11)
NHLANGULELA
DJP
[1]
The purpose of this judgment is to answer the question whether a duty
to begin to lead evidence at the trial lies with the plaintiff
or the
defendant. That issue arose out of a pleaded defence that the
plaintiff’s arrest and detention was not unlawful
where a
warrant of arrest had been used to effect the arrest. In turn,
on the application by the plaintiff acting in terms
of Rule 39(11) of
the Rules of this Court, the court was asked to give a ruling on that
issue.
[2]
The provisions of Rule 39 (11) are couched in the following terms:
“
Either party may apply at
the opening of the trial for a ruling by the court upon the onus of
adducing evidence, and the court after
hearing argument may give a
ruling as to the party upon whom such onus lies: Provided that such
ruling may thereafter be altered
to prevent injustice.”
[3]
The phrase “onus of adducing evidence” that is used
in sub-rules 39 (11), (13) and (14) is not the same as
the phrase
“burden of proof” used in Rule 39 (5) of the Rules of
this court. Whereas the latter phrase is referred
to as the
onus of proof in the ordinary/primary sense, the former is not. In
‘The South African law of Evidence, 2
nd
Edition, the authors state at 168, correctly so in my view, that:
“
In a criminal trial, the
prosecution always has the right (or duty) to begin. The
position in a civil trial is governed by
the Rules of court. Rule 39
(11) of the High Court provides that “[e]ither party may apply
at the opening of the trial for
a ruling by the court upon the onus
of adducing evidence”. That ruling is subject to the proviso
that it may be altered subsequently,
“to prevent injustice”.
It also goes on to provide in Rule 39 (13) that where the onus of
adducing evidence on any
issue is on the defendant, the plaintiff
shall first call his evidence on any issue “in respect of which
the onus is upon
him, and may then close his case. If absolution from
the instance is not granted it is then incumbent on the defendant to
call
evidence on all issues in which the onus is on him. In terms of
Rule 39 (14), the plaintiff has the right to call rebutting evidence
on any issue in which the onus was on the defendant. The meaning of
this rule is obscured by the fact that the word “
onus
”
is sometimes used to signify the onus in its true and original sense
(the legal burden) and sometimes to signify the duty
to adduce
evidence in order to avoid certain procedural consequences. Rule 39
(11) has been interpreted by GJ Claasen J in
Intramed
(Pty) Ltd v Standard Bank of South Africa
2004 (6) SA 252
(W) at 255 G-H:
‘
Upon
a mere reading of Rule 39 (11) it seems abundantly clear to me that
the term onus of adducing evidence’ has two meanings.
It refers
firstly to the duty to commence leading evidence but secondly to the
incident of the onus of proof. This construction
of the subrule
follows logically from the provisio to the subrule.’
The
second meaning is a subject of discussion in this matter.
[4]
The case of
Mobil
Oil Southern Africa (Pty) Ltd v
Mechin
1965 (2) SA 706
(A) gives a broad conception of what the term “onus
of adducing evidence really is. The following is stated at 711:
“
The
general principle governing the determination of the incidence of
onus
is the
Corpus
Iuris: semper necessitas probandi incumbit illi qui agit
(D. 22.3.21). In othr words he who seeks a remedy must prove the
grounds therefor. There is, however, also another rule, namely,
ei
incumbit
probatio qui dicit non qui negat.
(D22.3.2.) That is to say the party who alleges, or as it is
sometimes stated, the party who makes the positive allegation, must
prove. (cf.
Kriegler
v Minizter and Another
1949
(4) SA 821
(AD) at p. 828). Together with these two rules must be
read the following principle, namely:
agere
etiam is videtur, qui exceptione utitur name reus in exceptione actor
est
,
(D. 44.1.1). This principle is stated thus by DAVIS, A.J.A, in
Pillay
v Krishna and Another
,
1946 AD 946
at p. 952:
‘
where
the person against whom the claim is made is not content with a mere
denial of that claim, but sets up a special defence,
then he is
regarded, quoad that defence, as being the claimant; for his defence
to be upheld he must satisfy the Court that he
is entitled to succeed
on it.’”
[5]
As already indicated, in this case the defendant has set up a special
defence that the arrest and detention was authorised by
a lawful
warrant. The defendant avers that the arrest and
detention of the plaintiff was not unlawful, but lawful.
In
relation to the special defence the defendant it regarded as the
claimant who must satisfy the Court that it is entitled to
succeed on
it.
[6]
The reading of the particulars of claim of the plaintiff, together
with the defendant’s plea, illustrate the point that
the
defendant has raised a claim that the arrest and detention were
lawful. The particulars of claim read as follows:
“
5.
When arresting the Plaintiff the
aforesaid Police members:-
6.1 were on duty and acting
within the course and scope of their employment with the Defendant;
6.2
did not have any valid or justifiable reason to arrest and detain the
Plaintiff;
6.3
did not have any grounds to suspect that the Plaintiff had committed
an offence that justified his arrest and detention;
6.5
did not produce any warrant for the arrest of the Plaintiff and did
not have any justification for executing a warrant of arrest
on the
Plaintiff, even if one was available…”
[7]
In the plea, the defendant avers that:
“
2.
AD
PARAGRAPHS 4 THEREOF
:
The allegations made in this
paragraph are denied. The defendant pleads that plaintiff was
lawfully arrested on 18 April 2016 with
a valid warrant of arrest.
“
3.
AD
PARAGRAPH 5 THEREOF
:
3.1
Save to admit that the members of the South African Police Service
who arrested the plaintiff were on duty and acting within
the course
and scope of their employment with the defendant the remainder of the
allegations made in this paragraph are denied.
3.2
The defendant pleads that:
a) Plaintiff was lawfully
arrested on 18 April 2016 with a valid warrant of arrest;
b) The warrant of arrest was
produced and shown to the plaintiff; and
c) The members of the South
African Police Services were justified in executing the warrant of
arrest.”
[8]
With regard to the issue of arrest, the upshot of the pleadings as
aforementioned is that the plaintiff found the legal basis
for his
claim on unlawful arrest and detention. In turn, the
defendant’s defence is predicated on the lawfulness of
arrest
and detention. That the arrest and detention occurred is
admitted by the defendant. The plaintiff alleges in
paragraph
5.4 of his particulars of claim that even if reliance is placed on a
warrant of arrest justificatory grounds for executing
it must still
be given by the defendant. And it is trite law that the
particulars of claim and defence as set out in the
pleadings do not
constitute the evidence, but are the material facts relied upon in
support of a claim and defence; the object
of the pleadings being to
define the issued to as to enable the other party to know what case
he has to meet. See
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(A) at 107C-E.
[9]
I can find no objectionable matter in the manner in which both
parties have pleaded their claim and defence respectively.
To
that extent the contention made on behalf of the plaintiff that the
particulars of claim established arrest and detention as
being a
cause of action in a correct one. In the realm of the
Mechin
case
supra
,
the plaintiff is the
onus
bearing party for the case pleaded by him in the ordinary / primary /
original sense of that term. It is defendant who pleads a
legal
justification in a form of a lawful and valid warrant of arrest.
Nothing detracts from that pleading regardless of the absence
of a
replication to the pleaded defence. On those bases the plaintiff
could only adduce evidence to prove that he was arrested
and detained
by the police, but for the defendant’s admission of those
allegations it may be inconvenient, if not unnecessary,
for the
plaintiff to step into the witness box only to state facts that are
already common cause between the parties.
[10]
The authorities which support the legal principle that arrest and
detention is
prima
facie
wrongful and unlawful are legion. See,
inter
alia
,
the
Minister
of Law and Order and Others v Hurley and Another
1986 (3) SA 568
(A) 587 – 589. Further, this Court has stated
in
Mhaga
v Minister of Safety and Security
2001 (2) All SA 534
(Tk) that once arrest and detention are admitted
the onus of proving lawfulness of arrest rests with the State.
[11]
It was argued strenuously on behalf of the defendant that the
plaintiffs cannot be excused from a duty to begin to lead evidence
because he agreed to do so in paragraph 8 of the Rule 37 Conference
Minute. In support of this argument reference was made
to the
MEC
for Economic Affairs, Environment & Tourism: Eastern Cape v
Kruizenga
and Another
2010 (4) SA 122
(SCA), which is the authority for the proposition
that a settlement agreement incorporated in a Rule 37 Minute
disposing of the
merits of the case was binding and enforceable in
law unless special circumstances exist to permit one of the parties
to resile
from the agreement . Paragraph 8 in question reads:
“
8.
DISPUTES
REGARDING THE DUTY TO BEGIN OR THE ONUS OF PROOF: RULE 37 (6) (g):
8.1
The parties agreed that there is no dispute regarding the duty to
begin, the plaintiff bears duty to begin and overall onus
during
trial in respect of liability and quantum; however
8.1.1 it was further agreed that
in view of admission of Plaintiff’s arrest by the Defendant
and/or on behalf of its members,
the evidential burden shall shift to
the Defendant to justify the arrest and detention in so far as it is
admitted.”
[12]
The contents of paragraph 8 of the minute evidence awareness by both
parties that the evidential burden on the issue of lawfulness
of
arrest and detention “shall shift to the defendant.”
Therefore, paragraph 8 of the settlement agreement
is
reconcilable with the general principles referred to in the
Mechin
case,
supra
.
Consequently, there is no merit in the argument that the plaintiff is
resiling from the terms of paragraph 8.
[13]
It was also submitted on behalf of the defendant that the particulars
of plaintiffs claim disclosed three causes of action
namely: (i)
arrest and detention; (ii) defective warrant of arrest; and (iii)
unjustified execution of a warrant of arrest. I do
not agree. I
can only read one cause in this manner. That is, the
plaintiff’s claim for payment of damages is
predicted on
wrongful or unlawful arrest and detention. This comes out
clearly if one has regard to the particulars of claim,
and read as a
whole.
[14]
Had it been appreciated that the plaintiff’s case is based on
one cause of action, wrongful/unlawful arrest and detention,
which is
fully encapsulated in the plaintiff’s particulars of claim
there would have been no need for the argument that the
defence that
the arrest and detention were lawfully executed in terms of a lawful
warrant of arrest as raised in the plea warranted
an averment in the
particulars of claim or in a replication that the warrant was
irregular. On those considerations
the issue of whether
the special defence raised is a partial or complete defence in nature
would not have detained the Court in
a protracted argument as that
issue has a bearing on evidence to be adduced in support of that
defence and a final determination
by the Court against the
conspectus
of
the entire evidence. Most importantly, what ought to be
appreciated with regard to the onus to begin to adduce evidence
is
that the ruling to be made therein has nothing to do with a decision
on the merits of the case that have to be determined at
the trial.
[15]
In so far as it became necessary for arguments to be entertained
based on the heads of arguments filed, the costs structure
has to be
that which is applicable in the opposed motion court.
[16]
In the result the ruling is made as follows:
a)
The defendant shall begin
to adduce evidence at the trial.
b)
The defendant to pay costs
incurred in the hearing of arguments on a scale applicable in the
opposed motion court.
_____________________________________________
Z.M.
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff: Adv. T.M. Ntsaluba SC with Adv. S. Nzuzo
Instructed
by: L. Singqumba Incorporated
MTHATHA.
Counsel
the defendant: Adv. Notshe SC
Instructed
by: The State Attorney
MTHATHA.