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[2018] ZASCA 145
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Silatsha v Minister of Correctional Services (1040/2017) [2018] ZASCA 145 (2 October 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 1040/2017
In
the matter between:
ANDILE
SILATSHA
APPELLANT
and
THE
MINISTER OF CORRECTIONAL
SERVICES
RESPONDENT
Neutral
citation:
Silatsha v The
Minister of Correctional Services
(1040/2017)
[2018] ZASCA 145
(02 October 2018)
Coram:
Ponnan, Seriti, Willis, Zondi and
Dambuza JJA
Heard:
30 August 2018
Delivered:
02 October 2018
Summary:
Delict – claim for unlawful and
wrongful detention – separated issue not dispositive of the
matter – defence raised
to be considered together with the rest
of the issues – appeal upheld.
ORDER
On
appeal from
:
Eastern
Cape Local Division of the High Court, Port Elizabeth (Erasmus AJ
sitting as court of first instance):
1 The appeal is upheld with costs.
2 The order of the Eastern Cape Local
Division of the High Court, Port Elizabeth is set aside and the
matter is remitted to that
court for trial before a differently
constituted court.
JUDGMENT
Dambuza
JA (Ponnan, Seriti, Willis and Zondi JJA concurring):
[1]
From 14 March 2008 to 24 March 2012 the appellant, Mr Andile Silatsha
(Mr Silatsha) was an inmate at St Albans Correctional
Facility in
Port Elizabeth following various convictions and sentences to terms
of imprisonment. On 24 October 2012 he instituted
proceedings in the
Eastern Cape Local Division of the High Court, Port Elizabeth (the
high court), against the Minister of Correctional
Services (the
Minister), claiming damages for his unlawful and wrongful detention
in a single cell. The claim was defended by the
Minister. Of
relevance to these proceedings is the Minister’s contention, in
the plea, that because Mr Silatsha had not sought
to review and set
aside the administrative decision to detain him in a single cell, he
was barred from bringing a claim for damages
based on the detention.
[2]
At the pre-trial stage the parties agreed that the following would be
decided as a separated issue:
‘
.
. . whether the fact that the said decision [to accommodate Mr
Silatsha in segregated/single cell accommodation] has not been
set
aside, is a bar to [him] contending, in an action for damages, that
his detention was unlawful and wrongful. . . .’
[3]
Before Erasmus AJ the matter proceeded on the separated issues only.
The high court found that because the decision to detain
Mr Silatsha
in segregated conditions had not been challenged, and remained valid,
his detention in terms thereof was not unlawful.
The court proceeded
to dismiss Mr Silatsha’s claim with costs. This appeal, with
the leave of the high court, is against
that order.
[4]
In the summons Mr Silatsha alleged that he was kept in segregated
detention, in a single cell, which restricted him from accessing
various amenities. He contended that being detained in that fashion
was wrongful and unlawful, and constituted torture and/or cruel,
inhumane and/or degrading treatment. He also alleged that his rights
to human dignity, freedom and personal security, freedom from
violence, and the right to be detained in conditions which were
consistent with human dignity, were infringed.
[5]
The Minister pleaded that Mr Silatsha’s detention under the
circumstances complained of was sanctioned by various provisions
of
the
Correctional Services Act 111 of 1998
. His detention resulted
from his classification ‘in terms of [s]ection 29 and the
Security Policy Procedures of the Department’
together
with a correctional sentence plan ‘countersigned’ and
concurred in by Mr Silatsha on 14 March 2008. The classification
decision was informed by the nature and number of offences of which
Mr Silatsha was convicted, together with the fact that he had
previously escaped from custody. This decision, according to the
Minister, was an administrative decision as defined in the Promotion
of Administrative Justice Act 3 of 2000 (PAJA) and had to be reviewed
and set aside before Mr Silatsha could bring a claim for
unlawful
detention.
[6]
Apart from the finding that I have already referred to, not much can
be gleaned from the judgment of the high court, as to its
approach
and reasoning in reaching its conclusion to dismiss the plaintiff’s
claim. I have difficulty in understanding this
conclusion,
particularly in the light of the remarks by the learned judge that
she considered that some issues were not before
her at the time and
would still have to be ventilated and decided by the court. In this
regard the learned judge said:
‘
For
purposes of this judgment I have not dealt with a variety of other
issues mentioned by counsel for the plaintiff as it is their
prerogative to continue or deal with the remainder of the claim as
they see fit.’
Yet
the learned judge dismissed Mr Silatsha’s claim without more.
[7]
The procedure adopted by the high court is unclear. It appears to
have been something akin to the procedure on exception.
‘
When
an exception is upheld, it is the pleading to which exception is
taken which is destroyed. The remainder of the edifice does
not
crumble. The upholding of an exception to a declaration or a combined
summons does not, therefore, carry with it the dismissal
of the
summons or the action.’
[1]
[8]
On the other hand, Rule 33(4) provides for determination of a point
of law or fact separately from other issues where such separation
is
convenient. In
Denel
(Edms) Bpk v Vorster
[2]
this court
warned against robotic resort to separation. At para 458A-B the
following was said:
‘
In
many cases, once properly considered, the issues will be found to be
inextricably linked, even thought, at first sight, they
might appear
to be discreet. And even where the issues are discrete, the
expeditious disposal of the litigation is often best served
by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might be readily dispositive
of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it will
be
possible properly to determine whether it is convenient to try an
issue separately.’
[9]
In this case the issue decided by the court a quo was inextricably
bound up with the facts. It did not lend itself to separate
adjudication. Nor was it dispositive of the matter. It follows that
the order of the court a quo cannot stand and the matter must
proceed
to trial for a full ventilation and adjudication of all the issues.
[10]
In the result the following order is made:
1 The appeal is upheld with costs.
2 The order of the Eastern Cape Local
Division of the High Court, Port Elizabeth is set aside and the
matter is remitted to that
court for trial before a differently
constituted court.
_________________
N Dambuza
Judge of Appeal
APPEARANCE
For
Appellant: A C Moorhouse
Instructed
by:
Egon
A Oswald Attorneys, Port Elizabeth
Lovius
Block Attorneys, Bloemfontein
For
Respondent: N Mullins SC (with him R B Laher)
Instructed
by:
State
Attorney, Port Elizabeth
State
Attorney, Bloemfontein
[1]
Erasmus et al,
Superior
Courts Practice
at D1-296.
[2]
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481
(SCA).