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[2018] ZAECELLC 13
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Tshaya v Minister of Police, Republic of South Africa (EL 826/17, 2126/17) [2018] ZAECELLC 13 (21 August 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
{EAST
LONDON CIRCUIT LOCAL DIVISION
}
Case
n
o.
EL 826
/1
7
ECD: 2126/17
In the matter between:
TEMBALONKE
TSHAYA
Plaintiff
And
MINISTER
OF POLICE, REPUBLIC OF SOUTH AFRICA
Defendant
JUDGMENT
T
ONI
AJ
Introduction
[1]
The plaintiff sued
out summons against the defendant in terms whereof he seeks payment
of R1000 000.00 for damages he allegedly
suffered consequent upon
assault by a member of the South African Police Service (SAPS).
The defendant raised an exception
to plaintiff’s summons on the
ground that the summons lacks the averments necessary to disclose a
cause of action against
the defendant.
[2]
The summons is
ostensibly premised on vicarious liability of the defendant for the
wrongs committed by a member of the SAPS, namely;
Mja, who on 8 April
2017 allegedly discharged a fire arm which shot and injured the
plaintiff. The defendant is the functionary
of the State and
the political head of the Department of Police (the Department).
[3]
This court is
required to determine whether the plaintiff’s summons is
excipiable on the grounds as alleged by the defendant
that the
summons lacks averments necessary to sustain a valid cause of action.
Facts
[4]
The facts of this
matter are briefly that on the 8 April 2017 the plaintiff, Tembalonke
Tshaya, was at Orange Groove Location, East
London, when Mzukisi Mja
(Mja), a police officer employed by the defendant, allegedly
discharged a fire-arm at him which caused
an injury of a permanent
nature in the form of a fracture of his right arm. This
resulted in excessive bleeding and excruciating
pain and as a result
the plaintiff was put on analgesics.
[5]
According to the
plaintiff the conduct of Mja amounted to the unlawful and intentional
/ negligent discharge of a firearm and “
the
defendant is vicariously liable for the wrongful acts that are
committed by its member if such acts were committed whilst the
aforesaid member was in the exercise of his official duties
.”
[6]
Consequent to the
injuries sustained, the plaintiff sued out summons against the
defendant. Upon service of the summons, and
consequent to
filing a notice to defend, the defendant filed a notice of exception
on 9 October 2017. On defendant’s own
saying the exception is
premised on Rule 20 of the Rules of Superior Court Practice (the
Rules). Rule 20 provides that “
the
declaration shall set forth the nature of the claim, the conclusions
of law which the plaintiff shall be entitled to deduce
from the facts
stated thereon, and prayer for the relief claimed
”.
[7]
The exception is
opposed by the plaintiff on the ground that the particulars of claim
are not excipiable. The plaintiff has
also raised a point of
law that the defendant’s reliance of Rule 20 (2) in noting its
exception is ill-conceived and misplaced.
The
merits of the exception
[8]
The
nub of the defendant’s exception
[1]
is that the plaintiff did not set out facts and / or conclusions of
law to sustain or to disclose a cause of action against the
defendant. The question to be asked is whether the plaintiff’s
particulars of claim are so lacking in particularity
that the
defendant is unable to discern therefrom the case it has to meet and
plead thereto without embarrassment or prejudice.
[9]
It
is trite that
the
excipient
bears
the onus of persuading the court that upon every interpretation which
the pleading can reasonably bear, no cause of action
is
disclosed
[2]
.
In determining whether the plaintiff’s pleadings are
excipiable, the court must assume the correctness of the allegations
in the pleadings
[3]
.
[10]
The
purpose of the pleadings is to ensure that a summary of facts is set
forth that will enable the opposing side to plead thereto
and come to
trial prepared to meet the case of the other side and not be taken by
surprise. It is incumbent on a plaintiff
to formulate its
statement of grounds upon which its claim is based in a concise,
lucid, logical and intelligible manner and the
cause of action must
appear clearly from the factual allegations made. The above is
more discernible from the reading of
the provisions of Rule 18 (4) of
the Rules which provides:
“
Each pleading
shall
contain a clear and concise statement of the materia
l
facts upon
which the pleader relies for his claim with sufficient
particularity
to enable the opposite party to reply thereto.”
The
applicable legal provisions
[11]
For
a pleading to be exception proof, it must comply with the peremptory
requirements set forth in Rule 18 (4). The basic
rule is that
the particulars of claim should be so phrased that a defendant may
reasonably and fairly plead thereto. In
Trope
v South African Reserve Bank
[4]
,
the court illustrated the
importance of compliance with the requirements laid down in Rule 18
(4) as follows:
“
It is, of
course, a basic principle that particulars of claim should be so
phrased that a defendant may reasonably and fairly
be required
to plead thereto.
This
must be seen against the background of the further requirement that
the object of pleadings is to enable each side to
come to trial
prepared to meet the case of the other and not be taken by
surprise.
Pleadings
must therefore be lucid and logical and in an intelligible
form; the cause of action or defence must appear
clearly from
the factual allegations made (Harms Civil Procedure in the
Supreme Court at 263-4).
At
264 the learned author suggests that, as a general proposition,
it may be assumed that, since the abolition of further
particulars, and the fact that non-compliance with the provisions of
Rule 18 now (in terms of Rule 18(12)) amounts to an
irregular
step, a greater degree of particularity of pleadings is
required.
No
doubt, the absence of the opportunity to clarify an ambiguity
or cure an apparent inconsistency, by way of further
particulars, may encourage greater particularity in the initial
pleading.
The
ultimate test, however, must in my view still be whether the
pleading complies with the general rule enunciated in Rule
18(4) and the principles laid down in our existing case law.”
[12]
In
Buchner and another v Johannesburg
Consolidated Investment Co Ltd
1995
[1] SA 215 T at 216H-J
,
De
Klerk J
stated the following:
“
I
emphasize the words 'shall contain a clear and concise statement of
the material facts'.
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
plaintiff's 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 plaintiff's opinion
by elevating it to a judgment without first scrutinizing
the facts
upon which the opinion is based.”
[13]
The
learned Judge continued at 217E-G:
“
The
conclusion that the appellants are liable can only be reached or
justified if those terms support the conclusion set out in
the
summons. … I realise that the exposition of the facts
contained in a summons is no more than the pleader's opinion,
or of
his averment as to what the facts are.
If
such a statement is not disputed those alleged facts have to be
accepted as proven. An opinion or conclusion as to what the parties'
liabilities are, even if undisputed, does not become a statement of
fact and a failure to dispute the conclusion is of no consequence.”
[14]
Rule 18 (4) introduces two basic requirements with which a pleading
must comply, namely; firstly, it
should contain the material facts
upon which the pleader relies for its claim or defence, which relates
to the substance of the
pleading and, secondly; it should contain a
concise statement upon which a pleader relies for its claim
with
sufficient particularity to enable the opposite party to reply
thereto
, which is
concerned with the way in which a pleading should be formulated.
[15]
All that the plaintiff is
required to do is to ensure that its summons is not excipiable by
alleging facts which must be proved
in order to disclose the cause of
action (
facta
probanda
) and not the
facts or evidence which proves such facts (
facta
probantia
).
In
Jowell v Bramwell-Jones
[5]
,
the court summarised the general principles applicable to
exceptions as follows:
“
(a) minor
blemishes are irrelevant: pleadings must be read as a whole: no
paragraph can be read in isolation;
(b) ...;
(c) a distinction must be
drawn between facta probanda or primary factual allegations
which a plaintiff must make and
facta probantia which are the
secondary allegations upon which the plaintiff must rely in
support of his primary factual
allegations. Generally speaking
the latter are matters for particulars for trial and even then
are limited. For the
rest, they are matters of evidence.
(d)
only
facts need pleaded; conclusions of law need not be pleaded
[6]
”.
[16]
The
true object of an exception is
to
dispose of the case or a portion thereof in as speedily and less
costly a basis as possible and its aim is to avoid the leading
of
unnecessary evidence at trial
[7]
.
In the High Court exceptions are
regulated by Rule 23 (1) which provides:
“
(1)
Where any pleading is vague and embarrassing or lacks averments which
are
necessary
to sustain an action or defence, as the case may be, the opposing
party may, within the period allowed for filing any
subsequent
pleading, deliver an exception thereto and may set it down for
hearing in terms of paragraph
(
f)
of sub rule
(5) of rule (6): Provided that where a party intends to take an
exception that a pleading is vague and embarrassing
he shall within
the period allowed as aforesaid by notice afford his opponent an
opportunity of removing the cause of complaint
within 15 days:
Provided
further that the party excepting shall within ten days from the date
on which a reply to such notice is received or from
the date on which
such reply is due, deliver his exception.
”
[16]
Rule 23 (1)
creates two mechanisms upon which a defendant may except to the
plaintiff’s summons, namely; that the summons
are vague and
embarrassing or that it does not disclose averments necessary to
disclose the cause of action. These two mechanisms
are not
mutually exclusive in that a summons may lack the averments
necessary to sustain a cause of action due to material
vagueness.
A pleading is vague if it causes an embarrassment and prejudice on
the other party. In
Torpe
v South African Reserve Bank
supra
,
the court said:
“
An exception to a
pleading on the grounds that it is vague and embarrassing involves
a two-fold consideration. The first
is whether the pleading
lacks particularity to such that it is vague. The second
is whether vagueness causes an
embarrassment of such a nature
that the excipient is prejudiced. As to whether there is
prejudice the ability of the
excipient to produce an exception proof
plea is not the only, or indeed the most important, test. If
that were the
only test the object of the pleadings to enable
the parties to come to trial, prepared to meet the other’s
case
and be taken by surprise, may well be defeated. Thus
it may be possible to plead to particulars of claim which can be
read in any one of a number of ways by simply denying the allegations
made, likewise to a pleading which leaves ones guessing
as to
the actual meaning. Yet, there can be no doubt that such
a pleadings is excipiable as being vague and embarrassing”.
]18]
A summons that does not disclose a cause of action or lacks the
averments necessary to disclose a cause goes to a decision
on a point
of law without which the whole cause of action or part thereof may be
disposed off without leading unnecessary evidence
at trial
[8]
.
I
n
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
[9]
,
the term
“
cause
of action”
i
s
defined
to mean:
“…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the 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]
The
definition of cause of action in
McKenzie
above was quoted with approval in
Dusheiko
v Milburn
1964 (4) SA 648
(A) at 658A
:
“
I venture
to think that most difficulties will in practice be resolved if, in
applying
the definition stated in McKenzie v Farmers' Co-operative Meat
Industries Ltd
(supra) to any given case, it is borne in mind that the definition
relates only to
'material facts', and if at the same time due regard be paid to the
distinction
between the facta probanda and the facta probantia.
”
[20]
Statement of
material facts upon which the cause of action is founded is what
distinguishes
facta
probanda
from
facta
probantia
as the
latter refers to pieces of evidence required to prove the
former
[10]
.
It is the trite rule of evidence that the latter is not a
prerequisite for
pleading
s
and the
contents of any pleading should be restricted to those facts only
which serve to establish the cause of action, excluding
any evidence
required to prove them.
[21]
Makgoka
J
summarised
t
he
basic principles governing an exception
in
Living
Hands (Pty) Ltd and Another v Ditz and Others
[11]
,
as follows:
“
(a) In
considering an exception that a pleading does not sustain a cause
of action, the court will
accept, as true, the allegations pleaded by the plaintiff to assess
whether they disclose a cause of action.
(b) The object of an exception
is not to embarrass one's opponent or to take advantage of a
technical flaw, but to dispose of the
case or a portion thereof in an
expeditious manner, or to protect oneself against an embarrassment
which is so serious as to merit
the costs.
(c) The purpose of an exception
is to raise a substantive question of law which may have the effect
of settling the dispute between
the parties.
(d) An excipient who alleges
that a summons does not disclose a cause
of action must establish that,
upon any construction of the particulars of claim, no cause of action
is disclosed.
(e) An over-technical approach
should be avoided because it destroys the usefulness of the exception
procedure, which is to weed
out cases without legal merit.
(f) Pleadings must be read as a
whole and an exception cannot be taken to a paragraph or a part of a
pleading that is not self-contained.
(g) Minor
blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars.
”
[22] The
defendant
’
s
cause of complaint
in this exception
is
premised on Rule
20 (2) and it is that the
plaintiff
’
s
particulars of claim do not disclose a cause of action and further
that the
plaintiff
did not set out material facts and / or conclusions of law to sustain
or disclose a cause of action against the defendant.
The
defendant’s exception, however, does not go to the heart of the
problem and falls short of saying that it is unable to
plead as a
result of material vagueness in the plaintiff’s particulars of
claim or that it will suffer prejudice if it were
to plead to the
summons in its current form.
[23]
I do not agree with the defendant that the plaintiff has to plead the
conclusions of law for its summons to sustain or disclose
a cause of
action. It is sufficient for the plaintiff to plead material
facts upon which its cause of action is based but
such facts should
be pleaded in clear and concise terms in keeping with the provisions
of Rule 18 (4). A pleading that contains
the conclusions of
law, in my view, would go beyond the requirement that the pleader
must plead “
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Cour
t
”
,
a
s
set out in McKenzie
supra
.
[24]
All that a pleader is required to do is to set out clearly and
concisely the full factual basis for
its claim or defence and set it
in such a way that the other party will be able to plead thereto
without suffering an embarrassment
or prejudice as a result of
material defect in the pleading sought to be impugned. In other
words
a
plaintiff only
has
to plead a
complete cause of action which identifies the issues upon which the
plaintiff seeks to rely, and on which evidence will
be led, in
intelligible and lucid form and which allows the defendant to plead
to it.
[
25
]
It is trite that
vagueness
of pleadings has to do with the formulation of the claim which
generally results from the defect therein.
As
a general principle an exception stands to fail even if the claim is
shown to be vague and embarrassing and thus in order to
succeed the
excipient has to show that not only is the cause of action vague and
embarrassing but that he or she will suffer serious
prejudice if
compelled to plead in the face of the defect in the cause of action.
[26] One
of the plaintiff’s ground of attack against the defendant’s
exception is that its reliance
on Rule 20 (2) is misplaced. I
cannot agree more with that submission. I am, however, not
fazed by the plaintiff’s
submission as it does not dispose of
the issue at hand. The issue is whether taken as a whole, the
plaintiff summons is excipiable
or put differently whether the
defendant is prejudiced thereby.
[27] As
aforesaid, the defendant bears the onus to
persuade
the court that upon
every
interpretation which the pleading can
reasonably
bear, no
cause
of action or defence is disclosed, failing which the exception
must fail.
[28] At
this juncture, it is apposite to pause and interrogate the relevant
paragraph upon which the plaintiff
relies for its damages claim,
namely; paragraph 10 of its particulars of claim. Paragraph 10
reads as follows:
“
The defendant is
vicariously liable for the wrongful acts that are committed by
members of the South African Police Service,
if such acts were
committed whilst the aforesaid member of the South African was in
the exercise of his official.
[29]
What is pertinently clear from the reading of the above paragraph is
that the plaintiff’s claim
is based on the vicarious liability
of the respondent for wrongful acts
committed by its members, if such acts were committed in the course
of duty
[12]
.
Paragraph 10 above should be read with paragraph 5 of the plaintiff’s
particulars of claim. In paragraph 5 the
plaintiff states: “
The
shooting … was wrongful and unlawful and the bullet fired
by
the aforesaid member of the South African Police Services
(sic)…
”
In paragraph 2 of its particulars of claim, the plaintiff states
that: “
the
defendant is cited in his official representative capacity as the
Minister responsible for the South African Police Services
(
sic
)”,
and in paragraph 4 thereof the plaintiff states that: “
On
or about …
when
one police official, Mzukisi Mja
,
fired a gunshot at the plaintiff…”
Paragraph
5 reads: “
The
shooting on the person of the Plaintiff is wrongful and unlawful
and…
”
[30]
Equally important is paragraph 9 of the particulars of claim which
seeks to emphasise that Mja was
at all material times a member of the
South African Police Service and in which the plaintiff states the
reasons why he believes
that the conduct of the aforesaid official
was unlawful before concluding that firing gun shots in the direction
of the plaintiff
placed in jeopardy whoever might have appeared in
direction of gun fire. All the above paragraphs make it clear
that at the
time of the alleged shooting incident, Mja was a member
of the South African who discharged an arm in circumstances where he
put
the life of the plaintiff and any other person in the direction
of fire in danger.
[31] It
seems to me that the defendant’s only source of disturbance is
that “
the plaintiff has not pleaded material facts and
conclusions of law…
” It is not the defendant’s
case that the plaintiff should have specifically stated in its
summons that Mja was
in the execution of his duties at the time he
allegedly discharged a fire-arm. Even if it was, I suppose it
would be difficult
to fathom how the plaintiff would have known at
this stage if Mja was on duty or not. It is a difficult
question to comprehend
with. In my view, this is a matter for
evidence at trial.
[32]
Police officers, generally, have a constitutional mandate to protect
members of the public and also
bear a statutory duty to prevent
crime
[13]
.
When they fail to discharge their constitutional and statutory
obligations, either through commission or omission, they
expose their
employer to civil claims through vicarious liability. It would
not be easy for a member of the public, like
the plaintiff in
casu
,
to know if a particular police officer who goes on a shooting spree
with a fire-arm and injure members of the public is on duty
or not.
This can only be supplemented by evidence during trial. In
K
v Minister of Safety and Security supra
,
the Constitutional Court held:
“
... It was also part of
the duties of every police officer to ensure the safety
and security of the individual
and to prevent crime. These were
constitutional obligations affirmed by the Police Act 68 of 1995”
[33] I
agree with the proposition set out in
McKelvey v Cowan NO
(referred to in the plaintiff’s Heads of Argument) that: “…
If evidence can be led which can disclose a cause of action
alleged in the pleadings”.
I further agree with the
assertion contained therein that: “
A pleading is only
excipiable on the basis that no possible evidence led on the pleading
can disclose a cause of action”
.
[34] In
the instant case the police officer concerned was armed with a
fire-arm which police officers usually
carry when they are on duty.
He shot at the plaintiff without provocation and the plaintiff was
injured. It is important
to establish a causal link between the
conduct of the police officer concerned and the business of his
employer. It is worth
noting that if the conduct of the police
officer concerned is inimical to the business of his employer,
namely; that of the protection
of members of the public, the employer
may well be held liable for the conduct of its employee.
[35] The
above, in my view, will depend on the holistic consideration and
evaluation of evidence at trial.
The trial process has not been
set in motion as yet and all that is before the court is the factual
basis for the plaintiff’s
claim.
Conclusion
[36] I
am not convinced
in
casu
that u
pon
every
interpretation which the pleading can reasonably bear, no
cause of
action is disclosed
.
Evidence may still be led at trial supplementing the facts alleged by
the plaintiff in his particulars of claim.
[37] For
the reasons stated above, the exception raised by the defendant must
fail.
[38] May
I interpose to mention that this is not the end of the road for both
the defendant and the plaintiff.
The
defendant could
still ventilate himself and
re-argued
the point
at
the trial.
(Erasmus
Superior Court Practice B1-152).
Similarly
the plaintiff could still amend its summons in terms of Rule 28 if he
feels that certain allegations contained in its
current particulars
of claim require amplification.
Order
[39]
In the result, the following order shall issue:
1.
The exception is dismissed with costs.
H.
S. TONI
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the plaintiff
:
Adv D. Skoti
Instructed
by
:
Mbaleni & Associates
EAST LONDON
Counsel
for the defendant
:
Adv M. Simoyi
Instructed
by
:
State Attorney
EAST LONDON
HEARD
ON
:
31
MAY
2018
DELIVERED
ON
:
21
AUGUST
2018
[1]
As contained in parapgraph 5 of the notice of exception
[2]
See Francis v Sharp
2004 (3) SA 230
C at 233.
[3]
Marney v Watson and another
1978 (4) SA 140
CPA at 144 P
[4]
1993 [3] SA 264 A at 273A
[5]
1998 (1) SA 836
at 902-938
[6]
My underlinings
[7]
See Barclays National Bank Ltd v
Thompson
1989 (1) SA 547
(A) at 553; Also
Glaser
v Heller 1940 (2) PH F119 (C); Kahn v Stuart
1942 CPD 386
at 391;
Santos v Standard General Insurance Co Ltd
1971
(3) SA 434 (O)
[8]
See Santos v Standard General Insurance Co Ltd
1971 (3) SA 434
(O)
at 437 B;
[9]
1922 AD 16
at 23
[10]
See
Evins v Shield Insurance Co Ltd 1980 [2] SA
814 A at 825G
;
See Makgae v Sentraboer
[Kooperatief] Bpk
supra
at
244C-H
;
King's Transport v Viljoen
1954
(1) SA 133
(K) at 138 – 139
[11]
[12]
My underlinings
[13]
See K v Minister and Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC)