About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 178
|
|
Tlake v Minister of Police and Another (377/2014) [2017] ZAFSHC 178 (20 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No: 377/2014
In
the matter between:
MOTHOBI
ALBERT
TLAKE
Plaintiff
and
THE
MINISTER OF
POLICE
First Defendant
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
Second Defendant
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
20 OCTOBER 2017
[1]
The plaintiff issued summons against the Ministers of Police and
Justice in their official capacities. The summons was served
on the
19th of February 2014. Pursuant to a court order dated 1ih September
2015 the second defendant's citation was amended to
the National
Director of Public Prosecutions.
[2]
In his summons the plaintiff avers that on or about 25th January 2011
near QwaQwa he was unlawfully arrested by members of the
South
African Police Services (SAPS) and detained in Kestell police cells.
He was charged with assault, armed robbery and the pointing
of a
fire-arm. He was detained from the 25th of January 2011 until 2
nd
of February 2011 when the charges were withdrawn. He was however
immediately re-arrested and joined under a new case number in
QwaQwa
and charged with armed robbery, theft, attempted murder, stock theft
and offences under the Prevention of Organised Crime
Act. He was
aquitted and released on all charges on 8 May 2013. He avers that the
arrest(s), detention and prosecution was unlawful,
malicious,
unreasonable and unjustified. He avers that his arrest was without
any reasonable grounds and that there was no reasonable
and probable
cause to believe that he may be guilty of any offence before
and during the arrest periods as well as
before prosecution was
initiated. He claims general damages from
the defendants
in the
amount of R 350 000.00 for unlawful
detention, arrest, malicious prosecution,
injury to dignity and
freedom of movement.
[3]
The defendants in a special plea joins issue and plead "that the
plaintiff's claim for damages resulting from the first
period of
detention" be dismissed in that such claim is prescribed in
terms of the
Prescription Act 68 of 1969
. This plea is premised
thereon that plaintiff claims damages resulting from his alleged
unlawful detention from the 25th of January
2011 to 2 February 2011
occurred more than three years before the summons was served on the
defendants (on 19th February 2014).
Apart from the special plea
defendants do not dispute that
plaintiff was arrested
and detained on the dates
alleged but aver that a reasonable suspicion was entertained that
plaintiff committed one or more
offences. It is denied that either
the SAPS or the Prosecuting Authority or any employee of the
defendants acted unlawful or malicious.
It is not denied that the
plaintiff was detained and admitted that he was aquitted and
released.
[4]
The plaintiff filed a replication to the plea of prescription.
Therein it is averred that the unlawful arrests and detentions
constituted a superior force which precluded the plaintiff from
persuing his claim for damages and relying on
sec 13
of the
Prescription Act it
is averred that prescription only commenced on
the 8th of March 2013. It is relied upon in the alternative that this
court on the
16th of March 2017 granted an order condoning plaintiffs
failure to serve a notice contemplated in
sec 3(1)(a)
of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 (Act 40 of 2002) and that the court has
therefore already
decided that prescription had not intervened and that the issue of
prescription has become
res judicata.
In a further alternative
it is claimed that plaintiff's claim only arose on his acquittal.
[5]
At the commencement of the trial I was requested to order in terms of
Rule 33(4) of the Rules of Court that the plea of prescription
be
determined first and if need be the liability of the defendants, with
the issue of quantum to stand over for later determination.
It was so
ordered. I was requested in the event that I dismiss the special plea
to make a ruling on the duty to begin.
[6]
No evidence was adduced in regards to the special plea. Mr Patel on
behalf of plaintiff and Ms Mokopo appearing for the defendants
supplied me with heads of argument and I am indebted to them. I am to
consider the special plea on the pleadings as it stands.
There is no
dispute that a party who raises a special plea bears the onus to
prove the facts underlying the special plea.
See:
Masuku v Mdlalose
1998 (1) SA {SCA).
[7]
The main contention by defendant is that the only case that the
plaintiff has against the first defendant is based on the unlawful
arrest and detention eminating from the 25th January 2011 and/or 2
nd
February 2011 and that that claim arose on the day of the plaintiff's
arrest. Service of the summons on the 19
th
February
2014 was more than three years after the claim arose and
therefore the claim has prescribed. Reliance was
placed on
Thompson
and Another v Minister of Police and Another
1971
(1) SA 371 ECO wherein it was found that the injury lies
in the arrest without legal justification and that the
cause of
action arises as soon as the illegal arrest has been made.
[8]
Mr Patel referred me to
Unilever Bestfoods Robertsons (Pty)Ltd
and Others v Soomar and Another
2007 (2) SA 347
(SCA) wherein
it was held as follows:
"The
principle underlying the cases relied on was stated by De Villiers CJ
in Lemue's case (at 407) in the following terms:
While a prosecution
is actually pending its result cannot be allowed to be prejudged in
the civil action. A different reason for
the rule was given by
Solomon J in Bacon v Nettleton (supra). He said (at 142-3):
"The
proceedings from arrest to acquittal must be regarded as continuous,
and no personal injury has been done to the accused
until the
prosecution has been determined by his
discharge."
"
Compare
also the judgment of Spilg J in
Makwelo v Minister of
Safety and Security
2017 (1) SA 274
(GJ) at paras
[56] and further.
[9]
Not only am I bound by
Unilever
supra
but
do I respectfully align myself therewith that the proceedings from
arrest to acquittal is to be regarded as continuous and that
the
plaintiff's claim did not arise before his acquittal. The special
plea therefore stands to be dismissed.
[10]
In passing by I might mention that Mr Patel also relied on the
unreported judgment of
Adv. I
.
Strydom
N.O. and Another v The Premier Gauteng Province and Another
case number 35977/2013 GLD wherein Van Costen J concluded that
the granting of condonnation for failure to file a notice
of
intention to institute legal proceedings as required by secs 3(1)(a)
and 3(2)(a) of the Act 40 of 2002 is based on a finding
that "the
debt has not been extinguished by prescription and therefore
constitutes an absolute bar to a defendant raising
prescription"
as it has become
res judicata.
Having come to the conclusion
as I did above I find it unnecessary to make any findings in this
regard.
[10]
Having dismissed the special plea the matter is to continue on the
question of liability as ordered by myself at the commencement
of the trial and by agreement between the paties. I have
indicated herein before that I was requested to make a ruling on
the
duty to begin. In terms of the rule of practice in this Division I am
to postpone the matter to the next available pre-trial
roll date on
30
th
of October 2017 for the allocation and/or arrangement
of a trial date. The matter might therefore not be placed before
me
to make an interlocutory procedural ruling as to who is to begin
adducing evidence. The then presiding judge might take a different
view than I may have and for that reason I do not intend to make any
ruling in this regard. I might place on record for the
convenience of the parties that should the matter be placed before me
for hearing my provisional view is that the plaintiff
has the
duty to begin but I do not intend to make any order in this respect.
[12]
I therefore make the following orders:
12.1
The special plea of prescription is dismissed with costs.
12.2
The matter is postponed to 30 October 2017 on the pre-trial roll for
the arrangement and Allocation of a trial date for continuation
of
the trial.
____________________
C.
REINDERS, J
On
behalf of the Plaintiff: Mr. M. Patel
Instructed by:
T. T. Hlapolosa
Incorporated
c/o
Morobane Incorporated
BLOEMFONTEIN
On
behalf of the Defendants: Adv. N. Mokopo
Instructed by:
The State Attorney
BLOEMFONTEIN