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[2024] ZAECMHC 77
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Gwiji v Minister of Police (1867/2020) [2024] ZAECMHC 77 (27 August 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO: 1867/2020
In the matter between:
SIBUSISO
GWIJI
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
RUSI J
[1]
In an action for damages, the plaintiff sues the defendant for R500
000.00 as and
for damages resulting from his unlawful arrest and
subsequent detention on 15 November 2019. He holds the
defendant liable
for such damages on the basis that he was arrested
by his members without a warrant of arrest and detained thereafter
for ten (10)
hours without a justifiable cause. The defendant resists
the plaintiff’s claim.
[2]
In his amended particulars of claim dated 26 May 2022, the plaintiff
alleges that
on the already mentioned date he was at or near
Magqirheni Street, Mandela Park, Mthatha when he was arrested without
a warrant
by two members of the South African Police Service (the
SAPS) who were unknown to him. He was subsequently taken to
Wellington
Correctional Services, Mthatha, where he was detained for
ten (10) hours and later released after he promised to pay an amount
of R500.00. He further alleges that it was not clear whether the
R500.00 he was caused to pay was a fine or payment for his release
on
bail as he paid it without appearing in court and without being
charged of any criminal offence or being informed of the reasons
for
his arrest.
[3]
The plaintiff further avers that at the time of his arrest, he was
with his family
members; and his neighbours and community members
witnessed the arrest which took place in broad daylight. His
arrestors were on
duty and acting within the course and scope of
their employment as members of the SAPS. They had no justifiable
basis to arrest
him without a warrant as he had not committed any
offence listed in Schedule 1 of the Criminal Procedure Act 51 of 1977
(the CPA)
or attempted to commit such offence in their presence.
[4]
It is the plaintiff’s assertion further that his arrest was
insulting and injurious
to him and constituted an intentional and
unjustifiable restraint of his personal liberty. It aggrieved him,
impaired his integrity,
dignity and self-esteem, and caused him
embarrassment and humiliation as it took place in full view of the
public who knew him
well.
[5]
The defendant denies in its plea that the plaintiff was arrested by
his members on
15 November 2019 and detained at their instance. That
the plaintiff paid an amount of R500.00, either as a fine or bail
bond, is
also denied by the defendant. The defendant pleaded, in the
alternative, that if the plaintiff was indeed arrested by his members
on 15 November 2019, such police officers were not on duty and
not acting within the course and scope of their employment
with the
SAPS.
The material
litigation background
[6]
After the close of pleadings, the defendant requested the plaintiff,
in terms of Uniform
Rule 21(2), to furnish further particulars for
trial purposes. Those particulars related to the police station where
he was formally
charged after his alleged arrest; whether his
arrestors were clad in police uniform and their identities; as well
as the method
of payment of the R500.00 he mentioned in his
particulars of claim, and the identity of the person to whom he paid
it.
[7]
In reply to the defendant’s request for trial particulars, the
plaintiff alleged
that he was arrested by ununiformed police officers
who were stationed at the Mthatha Central Police Station and that is
where
he was charged. The police officers who arrested him were
Sergeants Mtwa and Zweni and he made a payment of R300.00 at the
Wellington
Prison, Mthatha, as bail bond.
[8]
A notice in terms of Rule 35(3) and (6) was also given by the
plaintiff to the defendant
on 22 September 2021, to make further and
better discovery; and make available for inspection a copy of the
police docket. In reply
to this notice, the defendant’s
deponent stated in an affidavit that “
he has access to, and
in control of all the documents in the defendant's possession in
relation to this action, and the defendant
was not in possession of,
and never had in his possession the said police docket and its
whereabouts were unknown
.”
The trial
[9]
The trial of this matter proceeded both on the merits and
quantum
of the plaintiff’s claim. Both parties discovered documents
that they intended to use during trial. They agreed in a pre-trial
minute dated 08 December 2021 and a further pre-trial minute dated 11
May 2023, respectively, that the discovered documents would
be
admitted in evidence without the need for their formal proof. The
incidence of the onus of proof fell on the plaintiff since
his arrest
and detention are denied by the defendant.
The issues for the
court’s determination
[10]
I was called upon to determine whether the plaintiff was arrested and
detained by the defendant’s
members on 15 November 2019 as he
alleged, and if so, whether his arrest and detention were justified.
As regards the
quantum
of the plaintiff’s claim, if
upheld, I would determine whether the amount of R500 000.00 that the
plaintiff claims is appropriate
compensation. These matters are dealt
with in the parties’ further pre-trial minute dated 11 May
2023.
The plaintiff’s
case
[11]
The plaintiff, Mr Gwiji, testified that it was approximately at 07h00
on 15 November 2019
when two police officers arrived in an
unmarked vehicle at his premises in Slovo Park where he rented three
rooms. He later came
to know the names of the two police officers to
be Sergeants Zweni and Mtwa. At the time they approached him, he was
conversing
with a certain Mr Mashaba, who was a tenant at the same
premises at the time. The two police officers who were in civilian
clothing
stated that they were looking for the home of ‘Sibusiso
Gwiji’ and he replied that in as much as that was not Sibusiso
Gwiji’s home, he was Sibusiso Gwiji. At that same time the
police officers asked if he and Mashaba knew where ‘Nceba’
was. He told them that they had no knowledge of Nceba’s
whereabouts.
[12]
Sergeant Zweni and Mtwa ordered him to point out his rented house
among those in the premises
and they all went inside it. On entering
the house which was one of the three that he rented as a home office,
Sergeant Zweni took
down what he thought to be a statement of
Mashaba. Once Sergeant Zweni was done writing the statement, Sergeant
Mtwa requested
him to lock his house and come with them to the
Mthatha Central Police Station. He obliged and Mashaba remained
behind.
[13]
To his dismay the police vehicle that he and the two police officers
were travelling in was driven
around Slovo Park and the police
officers went around doing what appeared to him to be an
investigation concerning other cases
that were unrelated to him. This
drive around Slovo Park in the police bakkie endured for
approximately 40 minutes, and at all
material times he was seated
inside the bakkie at the backseat.
[14]
He was ultimately brought to office number 102 at the Mthatha Central
Police station where he
was charged, and his photographs and
fingerprints were taken. He was also issued with documents he thought
to be ‘the notice
of constitutional rights’ and ‘warning
to appear in court on 18 November 2019. It also appeared from these
documents
that he was charged with assault common. According to him,
the assault charge related to an incident that took place in
September
2019 during which he sprayed a person named ‘Lwando’
with pepper spray.
[15]
Around 09h00 on the same day he was taken to the Mthatha Magistrates’
court where he remained
in custody in congested holding cells until
he was caused to appear before a magistrate. Sergeants Zweni and Mtwa
mistreated him
as they escorted him to court by denying him an
opportunity to use the bathroom when he needed to. The holding cell
was filthy,
and he could not eat the food he was served there. Upon
appearance before a magistrate in court “F”, he was asked
how
much he would afford for bail, and he indicated that he could
afford R500.00. He was admitted to bail of R300.00.
[16]
After his case was adjourned by the magistrate before whom he
appeared, he was taken back to
the holding cells. He could not pay
bail immediately or make arrangements to pay it because his cellphone
was taken by the police,
apparently for safe keeping when he arrived
at the court holding cells. While in the holding cells, he was with
many other inmates
who taunted him even though he managed to stave
off their attempts to abuse him. He was subsequently conveyed in a
police vehicle
with other inmates to the Wellington Prison.
[17]
At the Wellington Prison he waited in the prisoner reception area
with other inmates to be lodged
in. He resisted going to the prison
cells as he feared being sexually abused. To save himself he showed
the correctional officers
who were receiving them the warning to
appear in court, stating that he was not supposed to be detained to
begin with.
[18]
When the correctional officers saw the warning to appear in court,
they resolved to put him in
a cell with only two other inmates. While
waiting to be taken to the prison cell and having told the
correctional officers that
he had been admitted to bail of R300.00,
they assisted in phoning his aunt, Ms Cynthia Kgaketsang Sigodi who
arrived after 17h00
and paid on his behalf the amount R300.00 as
bail.
[19]
The bail receipt that the plaintiff relies on as proof of his arrest
on 15 November 2019
is reproduced hereunder:
[20]
He subsequently sought legal advice regarding the circumstances of
his arrest and handed over
to his legal representatives the
constitutional rights notice and warning to appear in court which
were issued to him at the time
he was charged at the Mthatha Central
Police Station.
[21]
Asked in cross-examination why he did not discover the constitutional
rights notice and the warning
to appear in court, the plaintiff
testified that this would be something that his legal representatives
would know more about.
Later on, during cross-examination, when
pressed on his failure to discover the two documents, the plaintiff
testified that he
merely peeked at the documents whose content and
purport was not explained to him and saw that they made reference to
‘constitutional
rights’ and ‘warning’. When
cross-examined further on this issue, his evidence was that he in
fact obtained the
two documents from another attorney, otherwise,
they were never issued to him.
[22]
Apart from the plaintiff’s discovered copy of the bail receipt,
which was admitted as an
exhibit, no further evidence was adduced on
his behalf.
The case for the
defendant
[23]
The defendant called the evidence of its only witness, Constable
Mabutho whose testimony related,
in the main, to the methods of
securing the attendance of a person at court after his arrest. These
methods are trite, I do not
consider it expedient to repeat Constable
Mabutho’s evidence in this regard. He also testified regarding
two documents that
the defendant discovered, namely, the SAPS
occurrence book for the events of 15 November 2019 from midnight
(the SAPS 10 register)
and the prisoner control register (the SAPS 14
register) which lists the detainees who attended court on the same
day. These registers
were similarly admitted in evidence, as agreed
between the parties, without formal proof.
[24]
The plaintiff’s particulars do not appear on the two registers.
Constable Mabutho was asked
by Mr
Nonkelela
who represented
the defendant whether there were other ways in which the record of
the plaintiff’s arrest could be secured
from the electronic
case management systems of the SAPS. He testified that if such a
request would be made, the plaintiff’s
full names would assist
in securing such information. He further testified that a case number
which would have been ascribed to
the plaintiff’s case would be
more accurate in generating particulars relating to his arrest.
The parties’
submissions
[25]
Mr
Mapekula
,
counsel for the plaintiff submitted that even though the plaintiff’s
cause of action as pleaded in his amended particulars
of claim
differs from the evidence he gave in court, such evidence and the
trial particulars he furnished to the defendant have
cured the
variance. Relying on
Relyant
Trading v Shongwe and Another
[1]
,
Mr
Mapekula
further
submitted that the conspectus of the evidence and the pleadings do
establish that the plaintiff was arrested by the members
of the
defendant on 15 November 2019.
[26]
As regards the non-availability of the police docket, Mr
Mapekula
submitted that the blame must be placed at the doorstep of the
defendant as the custodian of the docket. Since the plaintiff’s
arrest has been established, he said, the court must find, from the
evidence and pleadings, that the plaintiff’s arrest was
not
justified. Referring to several previous damages awards, Mr
Mapekula
submitted that an amount of R25 000.00 is appropriate compensation to
be awarded to the plaintiff for the damages he suffered resulting
from his unlawful arrest.
[27]
On behalf of the defendant, Mr
Nonkelela
submitted that the
plaintiff’s failure to discover the constitutional rights
notice and the warning to appear in court should
not be attributed to
any act or omission on the part of the defendant. It was his
submission on this score that it is the plaintiff
who failed to
furnish the defendant with these documents which would enable the
defendant to secure the police docket if there
was any regarding the
assault charge. He further submitted that the plaintiff failed to
establish through cogent evidence that
he was arrested by the members
of the defendant.
[28]
It was Mr
Nonkelela
’s submission further, that the
plaintiff’s contradictory evidence regarding the constitutional
rights notice and the
warning to appear in court, which would have
given clarity regarding the details of his arrest, must result in a
finding that he
failed to adduce sufficient evidence to prove his
case.
[29]
According to Mr
Nonkelela
, if the court upholds the
plaintiff’s claim, an appropriate award of damages ought to be
limited to the two and a half hours
he spent in the custody of the
members of the defendant from 07h00 to 09h30 when he was taken to
court for his first appearance.
The Law
[30]
It is trite that arrest is
prima
facie
wrongful,
and it is for the defendant to justify it.
[2]
A plaintiff need only therefore allege that his personal liberty was
interfered with by the police.
[3]
Wrongful deprivation of liberty consists in the unjustifiable and
intentional infliction of a restraint upon the plaintiff’s
personal freedom.
[4]
[31]
A litigant who bears the onus of proof can only succeed if he
satisfies the court, on a preponderance
of probabilities, that his
version is true and accurate and therefore acceptable, and that the
other version advanced by the defendant
is therefore false or
mistaken and falls to be rejected.
[5]
In deciding whether that evidence is true or not the court will weigh
up and test the plaintiff's allegations against the general
probabilities.
[32]
Where there are two conflicting versions on the issues to be decided,
the approach to be followed
in assessing evidence was set out in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Cie SA
and Others
[6]
,
where the court said:
‘
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarized as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular
witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors,
not necessarily in order
of importance, such as (i) the witness’s candour and demeanour
in the witness-box, (ii) his bias,
latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on
his behalf, or with established fact or
with his own extra curial statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction
and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter.
But when all factors are
equipoised probabilities prevail.’
[33]
And, in
National
Employers’ General Insurance Co Ltd v Jagers
[7]
,
EKSTEEN J said:
‘
.
. . The estimate of the credibility of a witness will therefore be
inextricably bound up with a consideration of the probabilities
of
the case and, if the balance of probabilities favours the plaintiff,
then the Court will accept his version as being probably
true. If,
however the probabilities are evenly balanced in the sense that they
do not favour the plaintiff's case any more than
they do the
defendant's, the plaintiff can only succeed if the Court nevertheless
believes him and is satisfied that his evidence
is true and that the
defendant's version is false. . . When in such circumstances one
talks about a plaintiff having discharged
the onus which rested upon
him on a balance of probabilities that means that he was telling the
truth and that his version was
therefore acceptable. It does not seem
to me to be desirable for a Court first to consider the question of
the credibility of the
witnesses as the trial Judge did in the
present case, and then, having concluded that enquiry, to consider
the probabilities of
the case, as though the two aspects constitute
separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration
of the probabilities fails to indicate
where the truth probably lies, that recourse is had to an estimate of
relative credibility
apart from the probabilities.’ (references
and footnotes omitted)
Discussion
[34]
It can be accepted as a matter of common knowledge in the field of
not only criminal litigation
but civil litigation too, that when a
crime has been detected or brought to the attention of the police, a
docket is opened, and
a distinct case number is allocated.
[8]
A police docket constitutes an official record of the evidence
collected pertaining to the crime which comprises,
inter
alia
,
of witness statements and other documentary and expert evidence and
the investigation diary.
[35]
Documents such as the notice of constitutional rights and a written
notice to appear in court
that a suspect is issued with subsequent to
his/her arrest are also filed in the relevant clip of the docket.
[36]
A litigant who wishes to pursue a delictual claim based on his/her
arrest and detention must
be armed with the relevant contents of the
docket as an official journal of his arrest and detention. This is
also generally known
in the sphere of civil litigation. It must have
been for these reasons that the plaintiff in this case demanded that
the defendant
make further and better discovery of, and make
available for inspection, the police docket as a record of documents
that could
enable him to advance his case against the defendant.
[37]
Even though constable Mabutho who gave evidence on behalf of the
defendant testified that he
was not at any stage involved in the
process entailing the arrest and detention of the plaintiff,
according to him, documents such
as the notice of constitutional
rights and warning to appear in court also bear the
CAS
number
allocated to the docket and will only be issued to a suspect after a
docket has been opened. This evidence was not challenged.
[38]
The occurrence book or SAPS 10 register is the official record that
the members of the SAPS use
to record all the events relating to the
detention of a suspect after his arrest. This is from the time the
suspect is brought
to the police station to be charged, up to the
time he is taken to court to make his first appearance. When a
detainee attends
court, the SAPS 14 register is used to record
his/her movements from the time he leaves the police cells to court,
and back.
[39]
In the instant case, no docket was discovered either by the defendant
or the plaintiff. In his
reply to the plaintiff’s notice to
make further and better discovery, and to make available for
inspection the police docket,
the defendant alleged in an affidavit
under Uniform Rule 35(3) and (6), that he was never in possession of
the docket concerning
the arrest of the plaintiff. This must be in
keeping with the defendant’s assertion that the plaintiff was
never arrested
on 15 November 2019, or, if he was arrested, the
persons who arrested him were not acting in the course and scope of
employment
with the SAPS.
[40]
The plaintiff places reliance on a bail receipt with the already
indicated particulars. No other
evidence has been produced to
establish a correlation between the bail receipt and his arrest by
the members of the SAPS on 15
November 2019 as alleged by the
plaintiff. All that the information contained in the bail receipt
conveys to a person reading it
is that the plaintiff was admitted to
bail of R300.00 following his arrest in relation to a criminal case
under case number F1793/2019
that was opened against him in the name
of the state. The bail money was deposited by Cynthia Kgaketsang
Sigodi at the Mthatha
Remand Centre on 15 November 2019. His release
was conditional upon him appearing in court “C” on 06
December 2019.
[41]
At most for the plaintiff in the absence of the docket for his
assault case, the record of court
proceedings and a copy of the
charge sheet could shed some light on the details of his arrest
including the offence he was charged
with, the date of his arrest,
the investigation officer of his case and the police station in which
a docket was opened against
him and its
CAS
number. These
details are as a matter of form contained on the front of a charge
sheet in the Magistrates’ court.
[42]
Mr
Mapekula
’
s
contention that the defendant must carry the blame for the
non-availability of the docket cannot assist the plaintiff. The
plaintiff
availed himself of the recourse provided for by the Rules
of Court and demanded further and better discovery and an inspection
of the docket for his assault case. As indeed held in
MV
v Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia)
(Pty) Ltd and Others
[9]
,
discovery ranks with cross-examination as one of the two mightiest
engines for the exposure of the truth as much as it can be
a
devastating tool.
[43]
For his part in the discovery of documents, the defendant discovered
the two SAPS registers (SAPS
10 and SAPS 14) for the date of 15
November 2019. I have already mentioned that in an affidavit in
response to the notice to make
available for inspection and to make
further and better discovery, the defendant stated that he was never
in possession of the
docket in the case concerning the plaintiff.
[44]
On his own showing, the plaintiff was handed a written notice to
appear in court and a notice
of his constitutional rights. It is from
these documents that this court would be able to assess the truth of
the plaintiff’s
assertion that he was arrested by the members
of the SAPS on 15 November 2019 in connection with the charge of
assault.
[45]
Rather problematic with the plaintiff’s case is the fact that
he gave two different versions
in relation to these two documents.
The impression that he initially gave was that after he was issued
with these two documents
at the Mthatha Central Police Station, he
handed them to his attorneys of record. It was later during
cross-examination that he
changed his stance and testified that he
had in fact obtained these documents from another unnamed attorney,
otherwise, he was
never issued with them when he was charged at the
Mthatha Central Police Station. This contradiction is material to the
version
of the plaintiff.
[46]
It is one thing for a witness to give an honest but imperfect
recollection or reconstruction
of the events forming the subject of
his testimony. From such imperfections it can hardly be concluded
that a witness is not credible.
Contradictions by any particular
witness or among witnesses cannot be avoided in any particular case
as it should not be expected
of a witness to give a blow-by-blow
mental recording of an incident.
[47]
As held in
S
v Mkhohle
[10]
,
not every error made by a witness affects his credibility – in
each case the trier of fact has to make an evaluation, taking
into
account such matters as the nature of the contradictions, their
number and their bearing on other parts of the witnesses’
evidence. These principles, though enunciated in the context of a
criminal case, find application
in
casu
by
parity of reasoning.
[48]
Where, on the other hand, a witness adapts his testimony in order to
deflect the truth, the court
would be justified in rejecting his or
her evidence as being false. GREENBERG JA, in
Goodrich
v Goodrich
[11]
said the following of a witness who seeks to strengthen his case by
lies:
‘
.
. . In each case one has to ask oneself whether the fact that a party
has sought to strengthen his case by perjured evidence proves
or
tends to prove his belief that his case is ill-founded; and one
should be careful to guard against the intrusion of any idea
that a
party should lose his case as a penalty for his perjury. As a general
rule, I think it can be said that a carefully prepared
false
statement . . . is more likely to be an indication of a consciousness
of badness of the case than a lie told on the spur
of the moment.’
[49]
In his amended particulars of claim, the plaintiff pleaded that he
was only released when he
promised to pay an amount of R500.00. He
did not know whether this amount was for a fine of bail since he was
not caused to appear
in court. Even after he furnished the trial
particulars, there was no amendment to his particulars of claim. This
version of the
plaintiff’s case changed when the plaintiff was
asked to furnish trial particulars.
[50]
What is rather difficult to fathom is the fact that when he
ultimately appeared in court after
the picture he painted of his
mistreatment by Sergeant Mtwa and Zweni as they escorted him to
court, the plaintiff did not produce
the warning document to the
magistrate before whom he appeared. Even when, on his version, he was
asked how much bail he could
afford, he did not tell the magistrate
that he had already been issued at the Mthatha Central Police Station
with a warning to
appear in court, not on the 15
th
, but
18
th
day of November 2019.
[51]
This is the same person who, upon arrival at the Mthatha Wellington
Prison, used the same warning
document to escape detention in a
congested cell. He told the correctional officers that he was not
supposed to be there to begin
with. I make a finding that the
plaintiff embellished his evidence to support a case that he not only
did not set out in his pleadings
but sought to build through his
trial particulars.
[52]
Furthermore, the version put forward by the plaintiff during the
trial of this case differed
materially from what he pleaded with
regards to the circumstances under which he was released and the
payment of the amount of
bail. Mr
Mapekula
, submitted that
this lacuna in the plaintiff’s version has been cured by the
trial particulars and the evidence. I disagree,
and below I elaborate
why.
[53]
The starting point is that the plaintiff’s trial particulars
cannot take the place of the
pleadings. Their purpose is to prevent
the element of surprise and to enable the parties to know what the
other party is going
to prove. Trial particulars must relate to a
matter that a party has pleaded. This will in turn enable the
opposing party to prepare
his case to combat counter allegations
while also not meant to tie the other party down and limit his case
unfairly at the trial.
[12]
In
Ruslyn
Mining and Plant Hire
[13]
,
HEHER J put it is way:
‘
[F]urther
particulars for trial are not pleadings. The opportunity to request
them arises after the close of pleadings: uniform
rule 21(2). They
are limited to obtaining information that is strictly necessary to
prepare for trial.
They
do not set up a cause of action or defence by which a party is, in
the absence of amendment or tacit concurrence, bound and
by which the
limits of his evidence are circumscribed.
Nor
can they change an existing cause of action or create a new one (as
the trial judge appears to have believed). The purpose of
particulars
for trial is to limit waste of time and costs by providing the other
party with additional insight into the case
which
has been pleaded
,
thus avoiding, where possible, delays or postponements to seek
evidence to meet a case. See for example,
Thompson
v Barclays Bank DCO
1965 (1) SA 365
(W) at 369D-E
.
Such particulars are only required if and when the other party asks
for them and what will be furnished is to a large extent dependent
on
the skill and foresight adopted in the formulation of the request.
Because they are not pleadings, they do not limit the scope
of the
case being made by the party that supplies them.
A
party has a right to rely on all and any evidence that is admissible
and relevant to his pleaded cause or defence
and,
save within the parameters set by the purpose of such particulars in
so far as ensuring a fair trial is concerned, no stultification
of
that right should be permitted. . .’ (emphasis added)
[54]
Pleadings form the foundation of the cause of action or defence that
a party intends pursuing
at trial and the importance of precision in
drawing them can never be over emphasized. It is trite that a party
cannot plead one
case and seek to introduce another during trial. Nor
is it permissible for the court to have recourse to issues falling
outside
the pleadings in deciding a case.
[14]
[55]
In the present case, the plaintiff pleaded one case and furnished
trial particulars which related
to a different case not pleaded. In
his amended particulars of claim, he alleged that after his arrest,
he was released without
appearing in court when he promised to pay an
amount of R500.00. He could not tell whether the amount he promised
to pay would
be a bail bond or a fine. In the trial particulars that
he furnished, he stated that he was released in court on bail of
R300.00.
[56]
The trial particulars that the plaintiff furnished cannot constitute
a cause of action which
was not set out in his amended particulars of
claim. Therefore, it cannot be correct that such particulars and the
evidence that
he adduced during trial cured the lacuna that is
apparent from his amended particulars of claim, let alone
constituting a new cause
of action.
[57]
It bears mentioning that the facts pleaded by the plaintiff and those
stated in the trial particulars
are far removed from each other –
they depict a completely different picture of how he was dealt with
after his alleged arrest
by the members of the defendant.
[58]
The variance between the facts pleaded and those stated in the trial
particulars is not without
significance since the plaintiff relies on
the afore-reproduced bail receipt and nothing else to prove his
arrest. That significance
relates, in particular, to the important
question whether the plaintiff’s alleged appearance in court
where bail of R300.00
was fixed by the court related to his arrest by
the members of the defendant on 15 November 2019 as he
alleges. In turn,
they are relevant to the fact in issue, namely
whether he was at all arrested by the members of the defendant on 15
November 2019.
[59]
Even if this court were to accept, based on the particulars that
appear on the bail receipt that
the plaintiff relies on to prove his
arrest, that on 15 November 2019 someone paid bail on his behalf, the
question that arises
is whether this would be sound basis for a
finding that he had in fact appeared in court on 15 November
2019 in connection
with the charge of assault for which he was
arrested as he alleges. I think not. Such a finding would not be the
only natural and
plausible conclusion among other conceivable
conclusions.
[60]
It is not unusual for an accused to be granted bail at court on a
particular day of his appearance
in that court, but such bail is paid
afterwards, either on the next court appearance or at the detention
facility.
[61]
Significantly in regard to the bail receipt that the plaintiff relies
on to prove his arrest,
the date on which he was arrested is not
recorded thereon, nor does it appear on the face it that he appeared
in court on the same
15
th
day of November 2019. On the
face of it, the bail receipt indicates that bail of R300.00 was paid,
not at court, but at the Mthatha
Correctional Services on 15 November
2019 and that the plaintiff was required to appear in court “C”
on 06 December
2019.
[62]
Regard must also be had to the fact that Mashaba who was in the
presence of the plaintiff when
he was allegedly taken away by the
police was not called to confirm that two police officers arrived at
the plaintiff’s rented
home and arrested the plaintiff.
[63]
Even if it were to be said, as another possibility, that that the
plaintiff was arrested by Sergeants
Zweni and Mtwa who possibly used
the machinery of the legal process with a malicious intent in
imposing a restraint on the plaintiff’s
liberty, that is all it
is, a possibility, with no facts to substantiate it to the level of a
probability. In fact, and most importantly,
the plaintiff did not
plead a case of
malicious arrest
. His particulars of claim
were not amended after the defendant’s plea to include a claim
based on malicious arrest.
[64]
On this score I must re-state that there is a distinction between a
cause of action based on
malicious arrest
, and the one founded
on
wrongful arrest
. In
Relyant Trading
, the Court said:
[4] Wrongful arrest
consists in the wrongful deprivation of a person’s liberty.
Liability for wrongful arrest is strict, neither
fault nor awareness
of the wrongfulness of the arrestor’s conduct being required.
An arrest is malicious where the defendant
makes improper use of the
legal process to deprive the plaintiff of his liberty. In both
wrongful and malicious arrest not only
a person’s liberty but
also other aspects of his or her personality may be involved,
particularly dignity. In
Newman v Prinsloo and another
the
distinction between wrongful arrest and malicious arrest was
explained as follows:
‘
[I]n
wrongful arrest . . . the act of restraining the plaintiff’s
freedom is that of the defendant or his agent for whose
action he is
vicariously liable, whereas in malicious arrest the interposition of
a judicial act between the act of the defendant
and apprehension of
the plaintiff, makes the restraint on the plaintiff’s freedom
no longer the act of the defendant but
the act of the law.’
(footnotes omitted)
[65]
Apart from this distinction, the reliance by Mr
Mapekula
on
Relyant Trading v Shongwe
and Another
as authority for
the contention that the plaintiff as proved that he was unlawfully
arrested is misplaced as that case is distinguishable
from the
present case on the facts.
[66]
In
Relyant Trading
, there was no dispute regarding the arrest
of the plaintiff, Mr Shongwe. Shongwe was pointed out to the police
by one Mrs Mahlangu,
an employee of Relyant Trading (Pty) Ltd which
was trading as Geen and Richards as a person who had committed fraud
in relation
to a hire purchase agreement. Through this hire purchase
agreement, a computer was purchased by a person named Makgabo. Mrs
Mahlangu’s
report to the police led to Shongwe’s arrest.
The SCA found that the police had reasonable grounds to suspect that
the plaintiff
had committed the theft. In upholding the appeal and
thus dismissing Shongwe’s claim against Geen and Richard, the
court
found that there was no basis for a conclusion that Mrs
Mahlangu instigated the plaintiff’s arrest as all she did was
to
provide the police with information. Emphasizing what Shongwe had
to prove in order to succeed with his claim, MALAN AJA (as he
then
was) said:
‘
[t]he
court a quo upheld the claim for wrongful arrest on the basis that
the employees of Geen and Richards ‘instigated’
the
arrest and prosecution.
However,
a claim for wrongful arrest can succeed only if it can be said that
the defendant, or his or her agent, effected the arrest
.
On the evidence the claim for wrongful arrest against Geen and
Richards must fail because the arrest was effected by the police,
and
not by Geen and Richards or their employees.’ (emphasis added)
[67]
Moreover, e
x facie
the two SAPS registers for 15 November 2019
that the defendant discovered, there are no details of the plaintiff
as a suspect that
was charged at the Mthatha Central Police Station
on 15 November 2019 pursuant to his arrest on that day, and
subsequently conveyed
to court and back on the same day as he
alleges. These are the control registers used by the SAPS to record
all the processes that
a given SAPS member undertook concerning an
arrested person, as mentioned, from the time of arrival at the police
station to the
time of being taken out of detention to attend court.
Conclusion
[68]
All of the aforegoing being said, it does indeed follow from the
particulars contained in the
bail receipt that the plaintiff was
arrested at a certain point in time during 2019. However, in the
light of the defendant’s
denial of the fact that his members
arrested the plaintiff on 15 November 2019, the onus rests on him to
prove his arrest on 15
November 2019 by the members of the defendant.
He persisted, instead, with his reliance solely on the bail receipt.
[69]
I venture to state that in the absence of any other cogent evidence
adduced by the plaintiff
as proof of the disputed arrest, the
particulars contained in the bail receipt could very well be in
relation to any other case
unrelated to the one to which his cause of
action relates. Not only that – the plaintiff’s arrest
could have been effected
by any other law enforcement agency other
than the defendant in different circumstances for an offence other
than assault.
[70]
In the circumstances, a consideration of the defendant’s
alternative plea that if it is
found that the plaintiff was arrested
by his members on 15 November 2019 those members were not acting in
the course and scope
of their employment with the SAPS would then be
abstract.
[71]
I am not satisfied that the information in the bail receipt alone
establishes what the plaintiff
had to prove on a balance of
probabilities – namely, that on 15 November 2019 he was
arrested by the members of the defendant.
As COETZEE J said in
African
Eagle Life Assurance Co Ltd v Cainer
[15]
, where there is no probability, there is simply no proof of anything
(regardless of the measure by which you measure it) unless
you
believe one person and disbelieve the other.
[72]
When the pleadings and the entirety of the evidence adduced in these
proceedings are considered,
the versions put forward by the plaintiff
and defendant are mutually destructive and I am unable to accept the
version of the plaintiff
as true and reject that of the defendant as
false. Therefore, an appropriate order to make is that of absolution
from the instance.
Costs
[73]
In the light of the findings I have made, the defendant must be taken
as being the successful
party, costs must therefore follow the
result.
[74]
In the result, the following order shall issue:
1.
The defendant is absolved from the instance.
2.
The plaintiff shall pay the defendant’s
costs.
L. RUSI
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the plaintiff
:
Adv. S Mapekula
Instructed
by
:
MJULELWA INC ATTORNEYS
Unit
2 Glencombe
No.
45 Leeds Road
MTHATHA
Counsel
for the defendant
:
Adv.
C Nonkelela
Instructed
by
:
KOBOKA ATTORNEYS
No.
19 Cumberland Street
MTHATHA
Date
heard
:
29; 30 April 2024, and 02 May 2024
Date
delivered
:
27 August 2024
[1]
Relyant
Trading (Pty) Ltd. v Shongwe and Another
(472/05)
[2006] ZASCA 162
;
[2007] 1 All SA 375
(SCA) (26 September 2006).
[2]
Minister
of Justice v Hofmeyer
1993
(3) SA131(A);
Minister
of Safety and Security v Sekhotho and Another
(2011
(1) SACR 315
(SCA);
[2011] 2 All SA 157
(SCA);
2011 (5) SA 367
(SCA))
[2010] ZASCA 141
; 131/10 (19 November 2010), para 7
;Minister
of Law and Order v Hurley
1986
(3) SA 568
(A) at 589E-F.
[3]
Zealand
v Minister for Justice and Constitutional Development and Another
(CCT54/07)
[2008] ZACC 3
;
2008 (6) BCLR 601
(CC) ;
2008 (2) SACR 1
(CC) ;
2008
(4) SA 458
(CC) (11 March 2008), para 25.
[4]
Newman
v Prinsloo
1973(1)
SA 125 (W) 127-128;
Minister
of Justice v Hofmeyr
(supra)
at 154E-157C.
[5]
National
Employers' General Insurance Co Ltd v Jagers
1984
(4) SA 437
(ECD) at 440D – 441A, adopted by the SCA in
Baring
Eiendomme Bpk v Roux
2001
(1) All SA 399
(SCA), para 6.
[6]
Stellenbosch
Farmers' Winery Group Ltd. and Another v Martell & Cie SA and
Others
[2002]
ZASCA 98
;
2003 (1) SA 11
SCA para 5; see also
National
Employers General Insurance Co Ltd v Jagers
1984
(4) SA 437
(ECD) at 440D-G.
[7]
1984
(4) SA 437
(ECD) at 440D – 441A, in which EKSTEEN J also
referred to
Koster
Ko-operatiewe Landboumaatskappy Bpk v SuidAfrikaanse Spoorweë
en Hawens
1974
(4) SA 420
(W) at 426 – 427 and
African
Eagle Assurance Co Ltd v Cainer
1980
(2) 234 (W).
[8]
That
case number is referred to as ‘CAS’ number which in full
means “
Crime
Administrative System
”
(this
definition was sourced from
https://www.saps.gov.za/services/report_crime.php
accessed
on 26 August 2024).
[9]
1999
(3) SA 500
(C) at 513.
[10]
1990
(1) SACR 95
(A), at 98f – g.
[11]
1946
AD 390
, at 396 – 397.
[12]
Thompson
v Barclays Bank D.C.O
1965(1)
SA 365 (W) at 369 D-E; see also
Samuels
and Another v William Dunn and Co SA (Pty) Ltd
1949
(1) SA 1149
(T) at page 1158;
Von
Gordon v Von Gordon
1961
(4) 211 (T) at 213A.
[13]
Ruslyn
Mining & Plant Hire v Alexkor
(917/10)
[2011] ZASCA 218
(29 November 2011), at para 18.
[14]
Minister
of Safety and Security v Slabbert
(668/2009)
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) (30 November 2009), para
11.
[15]
Supra,
footnote 7, at 237H – 238A.