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[2013] ZAGPPHC 29
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Linden v Minister of Police and Others (50509/11) [2013] ZAGPPHC 29 (6 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA NORTH GAUTENG,
PRETORIA
Case
number: 50509/11
DATE:06/02/2013
In
the matter between
LOINICE
LINDEN
…..............................................................................................
PLANTIFF
and
MINISTER
OF
POLICE
..........................................................................................
First
Defendant
MINISTER
OF
FINANCE
......................................................................................
Second
Defendant
THE
SOUTH AFRICAN REVENUE
SERVICES
.............................................
Third
Defendant
JUDGMENT
BAM
AJ
1.
The plaintiff issued summons against the defendant's, claiming
monetary damages in the amount of R743 520, with interest a tempore
morae and costs. The said amount included general damages of R700 000
and special damages for past and future medical expenses
of R43 520.
(The claim against the second defendant was withdrawn on 13:03:2012.)
2.
The third defendant filed a Notice of Exception against the
plaintiff's Particulars of Claim. After an amendment to the
particulars
was affected by the plaintiff, the third defendant again
filed a Notice of Exception in terms of Rule 23(1), dated 13 March
2012,
against the plaintiff's amended pleadings.
3.
In her particulars of claim plaintiff averred that she suffered
damages as a result of the conduct of certain officers in the
employment of third defendant after her arrival on the OR Tambo
Airport from Sao Paolo. It was stated by plaintiff that she was
badly
treated by the said officers, who apparently suspected her of
smuggling narcotics. The plaintiff further averred that she
was so
treated because she was a black woman. I deem it unnecessary, for the
purposes of this judgment, to repeat the specific
allegations in
regards to how the plaintiff was treated, as it appears in paragraph
13 of her particulars of claim.
4.
In paragraph 14 of the particulars the plaintiff stated:
"In
the premises, the officers' conduct was wrongful at common law and in
breach of her rights in terms of ss 9,10,12,14, 21
and 33 of the
Constitution "
5.
Section 9 of the Constitution entrenches the right to Equality;
section 10 with Human dignity; section 12 with Freedom and security
of the person; section 14 with Privacy; section 21 with Freedom of
movement and residence; and sec 33 with Just administrative
action.
6.
The reference to the sections of the Constitution seems to be the
third respondent's main concern. In this regard it was contended
by
Mr Berger SC, appearing on behalf of the third respondent, that the
applicant's claim for damages is based on an alleged infringement
of
her constitutional rights and her common law rights, without stating
what is actually claimed under each. Mr Berger further
submitted that
a plaintiff can only seek damages available at common law and not
additional damages if it is said that constitutional
rights were also
violated. Basing his argument on the case of Fose v Minister of
Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) par [67], Mr Berger
submitted that our law does not, in such circumstances, recognize a
claim for damages for a violation
of a constitutional right where
adequate damages, for the same conduct, could be awarded at common
law.
7.
In the Fose case the plaintiff sued the Minister of Safety and
Security for damages arising out of a series of assaults (Claims
Bl
and B2J. In his particulars of claim the plaintiff alleged the
following.
Fose
par [12].
"15.
The conduct referred to in paras 9 and 11 above constitutes an
infringement of the plaintiff's fundamental rights as enshrined
and
entrenched in chap 3 of the Constitution of the Republic of South
Africa Act 200 of 1993, as amended, more particularly the
plaintiffs
right to:
15.1
human dignity (s10);
15.2
freedom and security of the person (s 11(1) and 11(2);
15.3
privacy (s 13); and
15.4
(Not to) be arrested and detained (except) in accordance with the
provisions of ss 25(1) and 25(2) of the Constitution.
In
par [13] of Fose the following is stated:
"For
claims 'Bl' and 'B2' damages in a total amount of R130 000 are
claimed, comprising R50 000for pain and suffering, R50
000 for loss
of enjoyment of the amenities of life and shock, RIO 000for
contumelia and R20 000 as special damages in respect of
past and
future medical expenses. Claim 'C' is pertinently limited to
recovering 'constitutional damages' in the sum of R200 000
which
amount is stated to include 'an element of punitive damages'. Such
damages are being sought in consequence of the same events
and
conduct which found claims 'Bl' and 'B2' but only in respect of the
infringement of plaintiff's sec 3 rights as detailed in
par 15 of the
particulars of claim. In claim 'C' plaintiff is therefore limiting
his relief to the recovery of specific damages
over and above those
to which he would be entitled at common law in consequence of the
aforementioned events and conduct. These
additional damages are
characterized by plaintiff as 'constitutional damages' which include
'an element of punitive damages'.
(My
underlining.)
In
paragraphs [66] and [68] the following is stated.
"[66]
In the present case the Court is confronted with the narrow issue of
whether, in addition to the damages which the plaintiff
has pleaded
claims 'Bl'and 'B2', he is entitled to any further constitutional
damages which, on the plaintiff's argument, would
include an amount
for the vindication of the infringed rights in question and for
punitive damages."
"[67]
in the present case there con, in my view, be no place for further
constitutional damages in order to vindicate the rights
in question.
Should the plaintiff succeed in proving the allegations pleaded he
will no doubt, in addition to a judgment finding
that he was indeed
assaulted by members of the police force in the manner alleged, be
awarded substantial damages. This, in itself,
will be a powerful
vindication of the constitutional rights in question, requiring no
further vindication by way of an additional
award of constitutional
damages."
8.
The applicant's contention is, as submitted by Mr Trengove SC, who
appeared on behalf of the applicant with ms Fourie, that the
plaintiff is not claiming to be separately compensated for wrongs at
common law and the infringement of her constitutional rights.
What
the plaintiff seeks, according to Mr Trengove, is “vindication
of both the common law wrong she suffered and the violation
of her
constitutional rights", and "but the remedy she claims, is
expressly limited to an award of damages at common
law..."
9.
It does not appear from the plaintiffs particulars of claim that she
is seeking further "vindication by way of an additional
award of
constitutional damages" for the averred infringement of her
constitutional rights. The fact that the plaintiff alleged
in her
pleadings that the officer's conduct also infringed her
constitutional rights, does not, in my view, mean that she envisaged
to be compensated additionally to the compensation she seeks in terms
of the common law for the wrongs done to her. The drafting
of the
plaintiffs particulars of claim in that regard, in my opinion, does
not offend against the law stated in the Fose case,
alluded to above.
10.1
could find no reason to say that the plaintiff was not entitled, or
justified, in law, to aver in her particulars of claim
that her
constitutional rights were also infringed. Accordingly the third
respondent's exception that the plaintiff's particulars
of claim are
vague and embarrassing is unsubstantiated.
ORDER
THE
THIRD RESPONDENT'S EXCEPTION AGAINST THE PLIANTIFF'S PARTICULARS OF
CLAIM IS DISMISSED WITH COSTS, INCLUDING THE COSTS OF TWO
COUNSEL.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
4
February 2013