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2017
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[2017] ZAFSHC 137
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Mokhobo v Minister of Police and Others (4485/2016, 4486/2016, 4487/2016, 4488/2016, 4489/2016) [2017] ZAFSHC 137 (17 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
/NO
Of
Interest to other Judges:
YES
/NO
Circulate
to Magistrates:
YES
/NO
Case
number: 4485/2016
4486/2016
4487/2016
4488/2016
4489/2016
In
the matter between:
TSHEPO
PETRUS MOKHOBO
Plaintiff/Respondent
and
MINISTER
OF POLICE
Defendant/Excipient
AND
FOUR OTHER MATTERS
CORAM:
NAIDOO, J
HEARD
ON:
21 APRIL 2017
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
17
AUGUST 2017
[1]
This is an exception to the summons issued by the
plaintiff/respondent against the defendant/excipient. The issues
raised in
this matter are identical to those in four other matters,
where summons was issued against the same defendant as in this
matter.
and which were enrolled to be heard together with this
matter. These latter mentioned cases are:
1.1
Case number 4486/2016 – Nkejane Petrus Monyepha v Minister of
Police
1.2
Case number 4487/2016 – Dimakatso Paulina Sebofi N.O. v
Minister of Police
1.3
Case number 4488/2016 - Teboho Paulus Letsepa v Minister of Police
1.4
Case number 4489/2016 – Tshidiso Daniel Maqala v Minister of
Police
I
shall refer to the parties as they are cited in the summons. Ms GJM
Wright represented the defendant/excipient and Mr W Groenewald
represented the plaintiff/respondent in this court.
[2]
Each plaintiff alleges in his Particulars of Claim that he was
unlawfully and/or maliciously arrested, without a warrant of
arrest,
by a Captain Mbele who was, at the time of the arrest of each
plaintiff, in the employ of the South African Police Service
(SAPS).
The dates of arrest range from 3 March 2012 to 4 December 2012. Each
plaintiff, save one, alleged that he was detained
until 27 September
2013. The plaintiff in case number 4487/2016 (the Sebofi case),
acting as executrix in the deceased estate of
Andries Hendry Sebofi,
alleged that the deceased was detained until 8 February 2013. They
also alleged that Captain Mbele misled
the court during the hearing
of their bail applications, by wrongfully and/or falsely claiming
that there were eye witnesses who
implicated the plaintiffs. All the
plaintiffs were acquitted on 25 November 2013. Each plaintiff
claimed, inter alia, damages for
loss of income and two of them also
claimed the legal costs incurred in defending the criminal charges
against them.
[3]
The defendant’s exception to the summons in each case is based
on the following grounds:
3.1
The plaintiff’s claim for loss of income is a claim for pure
economic loss. As such it can
only be brought by way of the
actio
legis Aquilia,
which requires that all elements of the Aquilian
action must be pleaded, including wrongfulness, causation and fault.
3.2
The same considerations apply if special damages are claimed in
respect of unlawful arrest and
subsequent detention (as in this
case).
3.3
The plaintiff’s summons is fatally defective in that it fails
to make the necessary allegations,
specifically with regard to the
elements of wrongfulness, causation and fault in respect of the claim
for loss of income. The plaintiff
has therefore failed to disclose a
cause of action in respect of the claim for loss of income,
rendering his Particulars
of Claim excipiable.
[4]
The plaintiff, for his part, alleges that the necessary allegations
to establish a cause of action have been made in the summons.
4.1
Firstly, that Captain Mbele wrongfully misled the court during the
bail application by falsely
alleging that there were eye witnesses
implicating the plaintiff.
4.2
With regard to the arrest, the plaintiff alleges that the plaintiff
was arrested without probable
cause and that arrest or detention is
prima facie wrongful, making it unnecessary to allege or prove
wrongfulness. The defendant
bears the duty to allege and prove the
lawfulness of the arrest or detention.
4.3
The plaintiff cites, in respect of fault (as well as paragraph 20 in
connection with wrongfulness),
the case of
Goodyear SA (Pty) LTD v
Wietz (3919/2012) [2103] ZAECPEHC 49,
a judgment of Eksteen J,
handed down on 17 October 2013 in the Port Elizabeth High Court,
where the court said, in essence, at paragraph
27 that the
reference to “malice” in the context of
actio
iniuriarum
is to be understood as a synonym for
animus
injuriandi,
which encompasses
dolus directus
or
dolus
indirectus.
4.4
The plaintiff alleges that the use of the words “
As a result
of the aforegoing”
in paragraph 5 of the Particulars of
Claim, was sufficient to establish causation. Mr Groenewald also
argued that paragraphs 3,
4 and 5 of the Particulars of Claim must be
read together in order to see that a cause of action has been
established.
4.5
The plaintiff, in each matter mentioned above, has alleged
patrimonial loss as a result of the
actions of the defendant, as
represented by Captain Mbele. Details of such patrimonial loss are
set out in the Particulars of Claim.
[5]
Rule
23(1) provides as follows:
“
23
(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 or paragraph
(f)
of subrule ( 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 10 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.”
A long line of decisions
in our courts has emphasised that the remedy of an exception is
available when the objection goes to the
root of the opponent's claim
or defence. The true object of an exception is either, if possible,
to settle the case, or at least
part of it, in a cheap and easy
fashion. [
See
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)]
The
excipient also has the duty 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.
[6]
The defendant seeks to assail only the plaintiff’s claim for
patrimonial loss (which is a claim under the
actio
legis Aquiliae
)
as set out in his Particulars of Claim, alleging that it is
self-contained and can be struck out without affecting the rest of
his claim. Ms Wright argued that the mere use, by the
plaintiff, of the words “wrongful” or “unlawful”
is not sufficient to satisfy the requirements of the Lex Aquilia. She
argued further that insufficient facts have been pleaded
in respect
of the arrest and the subsequent proceedings to sustain a cause of
action. With regard to the use of the word “malicious”,
Ms Wright argued that while Mr Groenewald asserted that the word
included intent, there was no reference to negligence, dolus or
fault
in respect of the proceedings instituted against the defendant. The
word could also have other meanings. With regard to the
word
“falsely” it could also mean that wrong facts were
unintentionally put before the court.
[7]
Ms Wright placed reliance on the matters of
Minister
of Safety and Security v Scott 2014(6) SA 1 (SCA)at 14 D-G,
and
Media 24
v SA Taxi Securitisation 2011(5) SA 329 (SCA) at 335 A-B.
It
was argued on behalf of the defendant that the reference to
wrongfulness for purposes of a claim for unlawful arrest is not
adequate for purposes of liability for pure economic loss. The Media
24 case dealt with wrongfulness in the context of a defamation
action
and expressed the view that what was wrongful for the defamation
action may not be adequate for a claim for pure economic
loss. The
court went on to say at page 335 C
“
Whether
it is adequate or not will depend on judicial determination as to
what is wrongful in the context of a claim for actual
loss resulting
from a defamatory publication
”.
[8]
The question therefore, is the stage at which the judicial
determination of the adequacy of the allegation of wrongfulness can
be made. In my view, a proper assessment of wrongfulness for the
purposes of pure economic loss is best determined at the trial
stage
upon consideration of all the evidence in this regard. An aspect in
the Scott case relied upon by the defendant relates to
the question
of legal causation, where the court held on page 14 D that
“
This
court has expressed a preference for the 'flexible approach' in
determining legal causation”.
Ms
Wright pointed out that these two matters were Supreme Court of
Appeal (SCA) decisions, while the Goodyear case relied upon by
the
plaintiff was a decision of the Port Elizabeth High Court, suggesting
presumably that they were binding, whereas the Goodyear
case was of
persuasive value only. Neither of the SCA cases dealt with an
exception, while the Goodyear case pertinently
did so. In my view,
the Goodyear case is not at odds with the dicta in the SCA decisions
and this court is free to allow itself
to be persuaded by the views
of the court in Goodyear.
[9]
In any event, with regard to the question of legal causation, the
court in the Goodyear case, at paragraph 36, cited with approval
the
dictum of Corbett CJ in the case of
International
Shipping Company (Pty) Ltd v Bentley 1990(1) SA 680 (A)
at 700
H,
where
the court said, in essence, that demonstrating that the wrongful act
was the cause of the loss does not necessarily result
in legal
liability. The determination of whether such wrongful act is
sufficiently closely or directly linked to the loss is a
juridical
problem where policy considerations may play a part in the solution
thereof. The court in Gooodyear reiterated the decisions
in a number
of SCA decisions where it was held that the test for determining
remoteness of damage (legal causation) is a flexible
one, but which
does not supercede other tests such as “foreseeability,
proximity or direct consequences”. The court
referred to the
case of
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009(2) SA 150
(SCA)
,
a case followed on this aspect in the Scott case referred to by Ms
Wright. The court’s conclusion in Goodyear was that the
foreseeability of harm cannot be determined at the exception stage
and would depend, in part, on the evidence presented at the
trial. At
that stage factors such as the relationship between the parties will
be considered and the applicability of policy considerations
will be
determined. I align myself with this approach.
[10]
I agree with Ms Wright that there should have been more details
provided in the Particulars of Claim in this matter regarding
the
cause of action, but it is my view that the arguments put forward by
Mr Groenewald in respect of meeting the requirements of
the Aquilian
action, at this stage, are persuasive. Ms Wright appeared to concede
that interpretations other than the one put forward
by the plaintiff
in respect of, at least, the words “malicious” and
“falsely” are possible. At paragraph
28 of Goodyear, the
court held that the allegation of malice embraces intention in the
sense of
dolus
and constitutes an averment of fault. With regard to the element of
wrongfulness, the onus is on the defendant to prove that the
arrest
and detention of each plaintiff was lawful. To my mind, the
plaintiff’s interpretation of the Particulars of Claim
is not
unreasonable or improbable, and it cannot therefore be said that on
every possible interpretation that the pleading can
bear, it does not
sustain a cause of action.
[11]
The dismissal of an exception, where it is presented and argued as
such, does not finally dispose of the issue raised by the
exception
and is not appealable. The point could be re-argued at the trial.
(Erasmus Superior Court Practice B1-152).
In my view, an undue
harshness will be brought to bear upon the plaintiff if the exception
were upheld in the light of what I have
said above. I find that the
issues raised by the exception cannot be sustained at this stage.
ORDER
[12]
In the circumstances, I make the following order:
12.1
The exception is dismissed with costs.
________________________
S.
NAIDOO J
On
behalf of Plaintiff/Respondent:
Adv W Groenewald
Instructed
by:
Symington & De Kok Attorneys
169B Nelson Mandela Drive
Bloemfontein
(Ref: T O’Reilly
MXM2956)
On
behalf of Defendant/Excipient:
Adv GJM Wright
Instructed
by:
The State Attorney
11
th
Floor Fedsure Building
49 Charlotte Maxeke
Street
Bloemfontein
(Ref:JH Engelbrecht
66/201601069/P 6 M)