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[2016] ZAGPPHC 203
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Kruger v Minister of Safety And Security (A702/14) [2016] ZAGPPHC 203 (17 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
NQ: A702/14
DATE:
17 MARCH 2016
In the matter
between:
RIAAN
KRUGER
..............................................................................................................
APPELLANT
And
MINISTER OF
SAFETY AND
SECURITY
................................................................
RESPONDENT
JUDGMENT
RANCHOD J:
[1] This is an
appeal against the decision of the court a quo (Molefe J) dismissing
the appellant’s claim for damages for
an alleged unlawful
arrest and detention by certain employees of the respondent. The
appeal is with the leave of the court a quo.
[2] At the
commencement of the appeal hearing the appellant sought and was
granted condonation for the late filing of his heads
of argument
[3] The plaintiffs
claim was set out in the particulars of claim as follows:
"3 On 30 May
2008 and at the Thorncliff-Mine in the district of Lydenburg, the
plaintiff was arrested without a warrant by
various members of the
South African Police Services, acting within the course and scope of
their employment with the defendant
on an alleged charge of fraud and
corruption under Nelspruit MAS207/4/2008.
7. At all the
relevant times hereto the aforesaid members of the South African
Police Services did not exercise his/her (sic) discretion
to arrest
the plaintiff properly.”
[4] A claim in the
alternative is based on s 35(3) of the Constitution which provides:
“(3) Every
accused person has the right to a fair trial, which includes the
right -
To have their trial
begin and conclude without delay.”
However, this does
not appear to have been persisted with in the trial nor was it argued
on appeal.
[5] A perusal of the
trial record indicates that the thrust of the plaintiffs case was
that he was not shown the warrant when he
was arrested, nor later
even though he had requested it several times.
[6] Appellants
counsel said during submissions in this Court that it is not disputed
that a valid warrant of arrest had been issued.
It was also not
disputed that a copy of the warrant was handed in, in the court a quo
as exhibit A. It is also common cause that
a copy was attached to the
request for further particulars which was served upon the appellant's
attorneys of record on 13 February
2014.
[7] During the
course of the trial the appellant sought, and was granted, two
amendments to his particulars of claim but no amendment
was sought to
the effect that a valid warrant of arrest was issued and acted upon
by the relevant police officials effecting the
arrest but that he was
not shown the warrant upon demand by him.
[8] The plaintiff
based his cause of action on making a factual averment that he was
arrested without a warrant but the trial proceeded
on the basis that
the warrant was not shown to him. This is a different cause of action
than the clause relied on in the Particulars
of Claim and the
evidence thereon ought to have been ruled as being irrelevant and
therefore inadmissible. Plaintiffs case as pleaded
was not proven.
[9] In these
circumstances the appeal cannot succeed and I would dismiss the
appeal with costs.
RANCHOD J
JUDGE OF THE HIGH
COURT I AGREE
PRINSLOO J
JUDGE OF THE HIGH
COURT I AGREE
FABRICIUS J
JUDGE OF THE HIGH
COURT
Appearances:
Counsel on behalf
of Appellant : Adv W Dreyer
Instructed by
:Van Zyl Le Roux Inc.
Counsel on behalf
of Respondent : Adv H.O.R Modisa
Instructed by:
State Attorney
Date heard: 10
February 2016
Date delivered:
17 MARCH 2016