Steenbergen and Others v Minister of Safety and Security (1071/2003_) [2005] ZAFSHC 26; ; (17 February 2005)

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[2005] ZAFSHC 26
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Steenbergen and Others v Minister of Safety and Security (1071/2003_) [2005] ZAFSHC 26; ; (17 February 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1071/2003
In
the matter between:
HUBRECHT
WILLEM STEENBERGEN
FIRST
PLAINTIFF
ZACHARIAS
JOHANNES CILLIERS
SECOND
PLAINTIFF
JACOBUS
JOHANNES ALBERTUS HILLS
THIRD
PLAINTIFF
GABRIEL
JOHANNES DE BEER
FOURTH
PLAINTIFF
and
THE
MINISTER OF SAFETY AND SECURITY
DEFENDANT
CORAM:
RAMPAI
J
HEARD
ON:
22
OCTOBER 2004
_____________________________________________________
JUDGMENT:
RAMPAI
J
DELIVERED ON:
17
FEBRUARY 2005
[1] The matter came
before me by way of an exception. The case was initiated by way of
action proceedings. Four disgruntled men
collaborated to sue a
national cabinet minister. Of the four plaintiffs three were police
officers stationed at Frankfort. The
fourth co-plaintiff was a
municipal employee of the same town. The defendant was the cabinet
minister responsible for safety and
security.
[2] The composite summons
contained two claims in respect of each of the four plaintiffs. The
cause of action in respect of the first
claim of each plaintiff is
unlawful arrest. The cause of action in respect of the second claim
of each plaintiff is the publication
of defamatory statements. I
shall deal with the situation of the first plaintiff. It is
representative of the situation of each
and every plaintiff involved
in this matter.
[3] The
defendant took an exception to the composite summons. The defendant
excepted to each of the first claims but to none of the
second
claims. The ground of the exception was that the aforesaid pleading,
in other words the summons, was vague and embarrassing.
The thrust
of the exception is that none of the plaintiff avers the material
facts upon which he relies in support of the conclusion
that his
arrest was unlawful as was his subsequent detention.
[4] The
first claim of the first plaintiff is particularised or formulated as
follows in the summons:
4.1
“1.1 Eerste
eiser is
HUBRECHT WILLEM
STEENBERGER
‘n volwasse
man en offisier in die diens van die
SUID-AFRIKAANSE
POLISIEDIENS
, FRANKFORT,
met die rand van Superintendent woonagtig te hoek van Beckwith- en
Willelaan, FRANKFORT, Vrystaat Provinsie.”
4.2
“2. Verweerder
is die
MINISTER VAN
VEILIGHEID EN SEKURITEIT
IN
SY AMPTELIKE HOEDANIGHEID VAN PER ADRES DIE Staatsprokureur, Fedlife
gebou, St Andrewstraat, BLOEMFONTEIN, Vrystaat Provinsie.”
4.3
“3.1 Gedurende
of ongeveer
April 2000
en
te of naby FRANKFORT binne die jurisdiksiegebied van bogemelde Agbare
Hof is die eisers onregmatiglik gearresteer deur werknemers
van die
verweerder handelende in die bestek en binne die omvang van hul
diensverhouding by die verweerder en onregmatig aangehou
in die
polisieselle.”
4.4
“3.2 Eerste
eiser is gearresteer soos voormeld op
5
April 2002
en onregmatig
aangehou tot en met
9 April
2002
op welke datum hy op
borg vyrgelaat is.”
4.5
“5. As
gevolg van die verweerder se werknemers se voormelde optredes het
eerste eiser skade gely in die bedrag van
R760,560.00
wat soos volg saamgestel en bereken word:
5.1
R10,560.00
synde die koste deur eerste eiser aangegaan om hom teen die voormelde
klagte en gepaardgaande Departementele ondersoeke te verdedig.
5.2
R250,000.00
synde vir
contumelia
,
vryheidsberowing en ongerief gely deur eerste eiser;
5.3
R500,000.00
synde vir krenking van
eerste eiser se eergevoel en aantasting van sy eer en waardigheid.”
4.6
“9. Eisers
het voldoen aan die bepalings van artikel 57 van die Wet op die
Suid-Afrikaanse Polisiediens, Wet nr 68 van 1995 en het
op
18
Februarie 2003
per
aangetekende pos kennis aan die verweerder gegee van die besonderhede
aangaande die beweerde handeling of versuim soos voormeld
en van die
voorneme om sodanige regsgeding in te stel.”
4.7
“
10.1 EERSTE
EISER:
Betaling van die bedrag van
R760,560.00
Rente op die voormelde bedrag
bereken teen 15,5%
a
tempore morae
per jaar.
Koste van die geding.”
[5] It will be noted that
I have skipped paragraphs 4, 6, 7 and 8 of the declaration. It is
not a mistake as the reader may think.
These paragraphs have no
bearing on claim one a delictual action based on unlawful arrest as
simple logic dictates. They form part
of claim two, a delictual
action based on publication of defamatory statements. I
painstakingly had to comb through the composite
declaration to figure
out which averments should be allocated to which claim. This is a
task which a judge should never have to
undertake. The pleader
should never be allowed to put his adversary through such a
cumbersome process.
[6] Rule 18(4) provides
that, “every pleading shall contain a clear and concise statement
of material facts upon which a pleader
relies for his claim, defence
or answer to any pleading, as the case may be, with sufficient
particularities to enable the opposite
party to reply thereto”.
Let me bring the rule
nearer home. It requires, in the context of this case, that every
declaration by the plaintiff shall contain
a clear and concise
statement of material facts upon which the plaintiff relies for his
action, with sufficient particularity to
enable the defendant to
reply to such a claim.
[7] The gravamen of the
first claim is set out in paragraph 4.3 and paragraph 4.2
supra
.
The first plaintiff alleges that the defendant’s employees
unlawfully arrested him at Frankfort on 5 April 2002. He further
alleges that following such arrest the defendant’s employees
unlawfully detained him in the police holding cells until 9 April
2002 on which date he was released from such detention on bail.
[8] In adjudicating the
merits or demerits of an exception that the plaintiff’s declaration
is vague and embarrassing, I am bound
to accept as true the factual
allegations as particularised in the plaintiff’s declaration
annexed to this summons.
“
When
considering the validity of an exception to the particulars of claim
on the basis that such particulars of claim do not disclose
a cause
of action, the proper judicial approach is that the allegations in
such particulars of claim must be accepted as true. I
am indeed
urged to do so by the plaintiff in paragraph 8 of its written heads
of argument where I am referred to
Van
Zyl NO v Bolton
1994 (4) SA
648
(C) at 651E-F. This is indeed the correct legal position on
which the plaintiff, the defendant and the
amicus
curiae
are agreed. See
also
Natal Fresh Produce
Growers Association v Agroserve (Pty) Ltd
1990 (4) SA 749
(N) at 754B-755B.”
Vide
Mojapelo
J in
CHRISTIAN
LAWYERS’ ASSOCIATION v NATIONAL MINISTER OF HEALTH AND OTHERS
2004 (10) BCLR 1086
(T) at 1096 D – E.
[9] Therefore I accept
for the purposes of dealing with the exception as taken, that the
first plaintiff was arrested at Frankfort
on 5 April 2002; that he
was detained at Frankfort until 9 April 2002 and that he was released
from detention on bail. These are
some of the material allegations
of fact necessary for the plaintiff to rely upon in support of his
first claim. But can they, alone
and without more, support a claim
that his arrest was unlawful? The answer is negative. Here the
first plaintiff without making
a conceited effort to give a
systematic and adequate exposition of this claim by pleading the
material facts upon which he relies
for his claim merely declares
(
vide
paragraph 3.1) that his arrest was unlawful as was his detention
(
vide
paragraph 3.2). But he avers no material facts upon which the
alleged unlawfulness of his arrest is based. Is the case still
pending?
Accepting the truth of the plaintiff’s particulars, as I
have to, inevitably means that the proceedings have not yet
terminated.
The first plaintiff is still on bail. Therefore this
action is premature.
[10] The arrest of an
individual has two legal dimensions. In the first place the arrest
may be unlawful because it was effected
without lawful justification.
In the second place it may be unlawful because it was effected
without a reasonable or probable cause.
(
THOMPSON
AND ANOTHER v MINISTER OF POLICE AND ANOTHER
1971 (1) SA 371
(ECD) at 373 E – J, per Eksteen J, as he then was,
and the authorities referred to thereat.)
There is an important
distinction between two types of arrest. In delictual claims based
on malicious arrest, the defendant is liable
when he has deprived the
plaintiff of his civil liberty without reasonable or probable cause.
In this type of arrest, it is of paramount
importance for the
plaintiff to aver in his declaration and to prove at the hearing that
the defendant was actuated by malice and
no lawful motive to arrest
the plaintiff.
In delictual claims based
on wrongful arrest, however, the defendant is liable when he has
restrained the plaintiff’s civil liberty
without lawful
justification. Here the plaintiff is not by law required to allege
in his declaration or to prove at the trial that
the defendant acted
with malice or want of probable cause.
[11] These then are the
two different delictual dimensions of an unlawful arrest. Each forms
its own different and distinct cause
of action with its own separate
and peculiar defence. It is essential for the plaintiff to make it
clear in his declaration on which
form of arrest or unlawfulness he
will rely. Where a plaintiff’s declaration does not clearly and
concisely set out the
facta
probanda,
that is the material facts as in the instant case which highlight a
class of unlawfulness relative to the act of arrest complained
of,
then the claim is not adequately particularised. A summons with
deficient particulars or declaration is a defective pleading.
[12] In the instant case
I am in the dark as to some material factual averments which ought to
have been embodied in the summons as
to the particulars of the crime
the plaintiffs were suspected with committed, the nature of his
arrest, the unlawfulness thereof
and the ultimate fate of the
plaintiff or the outcome of such criminal proceedings initiated
against him. Instead of pleading these
material facts pertinent to
these critical issues the first plaintiff took a quantum leap from
the domain of the facts of the matter
to the domain of the
conclusions of law.
A summons which
propounds the plaintiff’s own conclusions of law without beefing it
up with the material facts was held to be a
defective pleading.
BUCHNER
AND ANOTHER v JOHANNESBURG CONSOLIDATED INVESTMENT CO LTD
1995 (1) SA 215
(T) at 216 per De Klerk J.
[13] The alleged
unlawfulness of the arrest and detention are the plaintiff’s own
conclusions drawn from inadequately pleaded facts.
They are not
material facts upon which such conclusions can legitimately be drawn.
The factual vacuum in the summons between so
little that was pleaded
and so much that was not renders the summons in respect of the first
claim vague and embarrassing. This
vague pleading embarrasses the
defendant. He cannot properly reply on account of the ambiguous
cause of action in the summons as
it stands. Such an ambiguity
should be cured. It is not a minor cosmetic blemish, but a
fundamental defect in the manner in which
the cause of action in
respect of claim one, has been pleaded. The scanty facts as pleaded
do no support the conclusion contended
for. In my view the defendant
will be substantially prejudiced by this great factual lacuna in the
plaintiff’s declaration because
it is not possible from the
scantily pleaded facts to know the real case the defendant has to
meet. The true nature of the defendant’s
complaint was that the
plaintiff’s declaration was vague and embarrassing. That is also
how I view the matter. Such vagueness
substantially prejudices the
defendant. Rule 23 (1) of the Uniform Rules of Court regulates that
before an exception can be taken
to a pleading,
in
casu
a
declaration, on the grounds that it is vague and embarrassing, the
defendant must first afford the plaintiff an opportunity of removing
the cause of the complaint:
“The
embarrassment and consequent prejudice complained of can indeed often
be removed by an appropriate amendment providing further
and better
particulars.”
(TROPE AND OTHERS v
SOUTH AFRICAN RESERVE BANK
[1993] ZASCA 54
;
1993 (3) SA 264
(AD) at 268 B per F H Grosskopf JA).
In the instant case no
such amendment was filed despite the complaint and the opportunity
extended to the plaintiff to remove the
cause of the complaint.
There was no such an amendment in the paginated court record and I
could find none in the court file. Hardly
any mention thereof was
made in the index.
[14] In
BUCHNER
AND ANOTHER v JOHANNESBURG CONSOLIDATED INVESTMENT CO LTD
1995 (1) SA 215
(T) at 216 H – J, De Klerk J had this to say about
the rule that the pleading has to contain a clear and concise
exposition of
the cardinal facts:
“
The
necessity, when pleading, to plead material facts does not have its
origin in Rule 18 of the Uniform Rules of Court. It is fundamental
to the judicial process that the facts have to be established. The
Court, on the established facts, then applies the rules of law
and
draws conclusions as regards the rights and obligations of the
parties and gives judgment. A summons which propounds the
plaintiff’s
own conclusions and opinions instead of the material
facts is defective. Such a summons does not set out a clause of
action. It
would be wrong if a Court were to endorse a plaintiff’s
opinion by elevating it to a judgment without first scrutinising the
facts
upon which the opinion is based.”
I am in respectful
agreement.
[15] In
TROPE
AND OTHERS v SOUTH AFRICAN RESERVE BANK
supra
at 273 A – B, F H Grosskopf JA said:
“
It
is trite that a party has to plead – with sufficient clarity and
particularity – the material facts upon which he relied for
the
conclusion of law he wishes the Court to draw from those facts
(
Mabaso
v Felix
1981 (3) SA 865
(A)
at 875A; Rule 18(4). It is not sufficient, therefore, to plead a
conclusion of law without pleading the material facts giving
rise to
it. (
Radebe and Others v
Eastern Transvaal Development Board
1988
(2) SA 785
(A) at 792J – 793G.)”
In my view the plaintiffs
in their declaration flagrantly violated the salient principle of
pleading. Such a flawed declaration cannot
be allowed to stand. Its
vagueness really embarrasses the defendant. Its substantially
prejudices him in formulating his defence
or plea.
[16] Accordingly I make
the following order for the reasons set out above:
The exception is well
taken. The declaration is vague and embarrassing. The exception is
upheld. The offending declaration of the
plaintiff is set aside.
The plaintiffs are granted leave to amend their declarations within
60 days from the date this order is
delivered.
______________
M.H. RAMPAI, J
On behalf of the
plaintiffs: Adv. S. J. Reinders
Instructed by:
Lovius Block
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. Viwe Notshe
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/sp