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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023 /025526
1. REPORTABLE: YES/ NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES / NO
DATE: 20 January 2025
SIGNATURE OF JUDGE:
In the matter between:
STEPHANUS PRETORIUS FRITZ Applicant
and
THE MINISTER OF POLICE First Respondent
NATIONAL COMMISSIONER OF POLICE Second Respondent
JUDGMENT
MEADEN AJ
On 05 NOVEMBER 2024 upon hearing counsel for the Applicant , First and Second
Respondents and upon considering the papers, I handed down the following Order:
[1] “That the application is dismissed.
[2] That the Applicant pays the Respondents cost on the attorney and client scale
and counsel on Scale B. ”
The above Order was handed down, taking consideration of the undermentioned:
[1] By way of motion process, the applicant s ought the undermentioned relief1:
(i) An order removing the “hit” or “flagging” effected by the respondents on
the applicant’s passport/identity document;
(ii) a declaratory order confirming that the first and second respondents’
conduct of “ flagging ” and/or placing a “ hit” on the applicant’s passport
(Number: A[...]) and/or identity number 7[...] was unlawful and
unconstitutional;
(iii) a further declaratory order confirming that the conduct of the first and
second respondents in stopping and searching the applicant whenever
he crosses the South African Border (be that travelling in or out of RSA)
constitutes a direct violation of the applicant’s constitutional rights to
human dignity, privacy and freedom of movement; and
(iv) an order awarding the applicant general damages in the amount of R 1
Million and which damages arise as a result of the first and second
respondents ’ alleged violation of the applicant’s constitutional rights,
unlawful detention, humiliation and embarrassment allegedly suffered by
the applicant at the hands of the respondents ;
(v) a special order as to costs of this application and on the attorney and
own client scale.
[2] What becomes immediately apparent in perusing the founding and replying
affidavits deposed to by the Mr. FS Pretorius - the applican t in this opposed
application ; is that the applicant for his part has failed to take this court into his
confidence in setting out the full factual circumstances of this matter; including
1 NOM 001 -2 AND III.
his alleged unlawful detention, humiliation, public embarrassment and
victimization suffered and at the hands of the first and second respondents.
[3] Ad paragraphs 17 – 19 of the applicant’s founding affidavit2 he records that :
“17. I have been travelling without any hassles by the boarders for my entire life
and only started experiencing embarrassment, harassment and unlawful
detention on port of entry and exit of South Africa on the 14th of January 2022.
18. I was on this day (14 January 2022) unlawfully detained at the airport police
satellite station, searched without a warrant and subjected to inhumane
treatment, accompanied from port of entry by full police uniform to satellite
police station, then to the flight wherein my bags were stripped, then back to
the boarding pass gate with the uniform police official in full view of all
passengers inclusive of those not flying with me that are awaiting other flights.
19. It was really embarrassing, humiliating, and degrading I must say. It has
become an ordeal I had to endure for more than a year now.”
[4] The aforesaid is then supplemented with that recorded in paragraphs 2 0 - 21 of
the applicant’s Replying Affidavit3 and which paragraphs are recorded below:
“AD PARAGRAPH 10 THEREOF
20. The contents contained in this paragraph is denied, my right of freedom of
movement is impaired each and every time that I leave and enter the Republic
because I am not allowed to immediately leave the ports of entry. I must first be
subjected to undignified stop and search for no apparent or valid reason.
21. Immediately I hand over my passport to Immigration Officer by the counter.
The counter is stopped and queue blocked as my passport hit due to flagging.
Police officials in full uniform are to take and escort me to the airport satellite
office. Search my bags I would be carried. Thereafter escort me the flight to
offload my luggages’ already packed in the flight. All this happens in full view of
all members or airport personnel. In fully view of the public and/or everyone
2 NOM 001 -10.
3 Applicant’s Replying Affidavit 005 -10 and 005 -5.
walking to various destinations in the airport. It is really embarrassing I have no
words to describe it. ”
[5] In pursuing this High Court applicatio n and over and above that recorded
aforesai d; the applicant omits provid ing additional necessary and material
insight and information regarding the following:
5.1 The dates and times of the applicant’s airline travel;
5.2 where the applicant is travelling to and from;
5.3 the airports of departure and arrival;
5.4 the airlines being flown on;
5.5 the airline counters attended on by the applicant;
5.6 the applicant’s flights and flight numbers;
5.7 particulars of how the applicant was allegedly unlawfully detained and the
circumstances in which this occur ed;
5.8 the period s of detention;
5.9 where the applicant is allegedly engaged and detained and by whom on
arrival at airports ;
5.10 particulars of what transpires in the course of the alleged detention;
5.11 particulars of the conduct including alleged inhumane treatment meted out
to the applicant and by whom;
5.12 the number and identification of police officials attending on , engaging and
escorting the applicant;
5.13 particulars relating to the circumstances of the actual searching of the
applicant and his luggage and by whom ;
5.14 particulars of the actual embarrassing, humiliating and degrading
circumstances suffered by the applicant.
What is recorded above is not to be construed as being exhaustive of
necessary and material information and insight s omitted from the applicant’s
above affidavit s. In the absence of the aforesaid necessary insight s, this
application as compiled by and on behalf of the applicant is bald, vague,
embarrassing and actually excipiable.
[6] The applicant’s application as framed leaves the court with more questions than
answers. As is apparent from the aforesaid, the applicant’s Founding and
Replying Affidavits lack necessary and material averments, particularity and
documentary evidence including annexures to establish, sustain and prove the
applicant’s contentions and claims and in the absence of which , render the
applicant’s application fatally defective.
[7] This court is not able in these circumstances to determine and establish the full
scope and extent of the applicant’s application as filed as of record.
[8] Further and in resorting in purs uing such court process, the applicant was
clearly able to anticipate that the allegations contained in his above founding
affidavit coupled with the relief sought in the notice of motion would be
scrutinized and challenged by and on behalf of the respondents . This indeed
occurred and with the respondents opposing this application and filing their
answering affidavit . The respondents ’ disputing of facts and allegations
contained in the applicant’s application were reasonably foreseeable.
[9] The respondents in their answering affidavit4 have confirmed that the applicant
is “a person of interest ” and in circumstances where the South African Police
Services Directorate for Priority Crime Investigation Unit has been in receipt of
information relating to the applicant and activities that he may be involved in,
including questionable cross border activities entailing his being in contact with
a known futigive of justice – Prophet Bushiri (who the SAPS are seeking to
apprehend and extradite back to RSA ) and which then render s the applicant a
suspect in ongoing police investigations. With this, the respondents then further
in their answering affidavit deny the various allegations raised by the applicant,
thus resulting in material dispute of facts arising.
[10] In this context, motion proceedings cannot be resorted to and where material
disputes of fact are foreseeable and have actually arisen . Application
4 Respondents’ Answering Affidavit 004 -6 and 004 -07.
proceedings are not designed to resolve factual disputes, but rather have as
their object; the determination of legal issues based on common cause facts.5
[11] This is then aggravated and with the applicant in the course and scope of
pursuing such application process , then also resorting and per paragraph 4 of
the notice of motion and in introducing an unliquidated financial claim for
damages (R 1 Million) and which the applicant can reasonable anticipate w ill be
opposed by the respondents and involve the ventilation and resolution of
factual issues associated with such unliquidated claim for damages.
[12] As a general rule, a party claiming damages, must produce the best evidence
available to substantiate the claim for damages , so as to enable an accurate
assessment to be made thereof.6 It is not competent for the court to award an
arbitrary approximation of damages to a plaintiff who has failed to produce
available evidence upon which a proper assessment of the loss could have
been made.7 The court cannot embark upon conjecture in assessing damages
where there is no factual basis in evidence for an assessment.8
[13] In Greyling v George Randell High School9 the court concurred with the
decision in Leymac Distributors Ltd v Hoosen which held that the quantum of
damages claimed necessarily , has to be assessed by a court on the basis of
what the court itself considers to be reasonable, fair and just. The court went
further to say “the court cannot assess the quantum of damages in a vacuum. It
has to hear evidence …”10
[14] Per Rule 17(2)(a) of the Uniform High Court Rules, a combined summons
drawn in accordance with Form 10 is to be used where the claim is not for a
debt or liquidated demand. The applicant’s claim contained in paragraph 4 of
his notice of motion constitutes an unliquidated claim for damages requiring to
be proved and established and which in the ordinary course of being pursued
5 Plascon -Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A).
6 Erasmus v Davis 1969 2 SA (AA) 227 -G (per Muller AJA).
7 Monument Art Co v Kenston Pharmacy (Pty) Ltd 1976 2 SA 111 ( C) 118D -F.
8 Monument Art Co 118D -F.
9 (PR11/22) [2023] ZALCPE 2; [2023] 5 BLLR 412 (LC); (2023) 44 ILJ 1254 (LC) (27 February 2023).
10 1974(4) SA 534(D.
would form the subject of a combined summons (as opposed to motion
process ) and as envisaged in terms of Rule 17(2) of the Uniform High Court
Rules.
[15] Further, and per Rule 18(10) of the Uniform High Court Rules, a plaintiff in
suing for damages requires to set such claim out in such a manner as would
enable the defendant to reasonabl y access the content thereof and be able to
plead thereto. In Economic Freedom Fighters v Manuel11 it was held that:
“92. …an unliquidated claim for damages must be pursued by the institution of
an action … that has always been the position and it is reflected in Uniform
Rules of Court. Uniform Rule 17(2) compels a person claiming unliquidated
damages to use a long form summons and file particulars of claim, and Uniform
Rule 18 (10) obliges a plaintiff suing for damages to set them out in such a
manner as would enable the defendant reasonabl y to access the content
thereof and plead thereto… .
93. This is not mere technicality. Claims for unliquidated damages by their very
nature involve a determination by the court of an amount that is just and
reasonable in the light of a number of imponderable and incommensurable
factors. That exercise cannot be undertaken in proceedings by way of
application.”
[16] The formulation and incorporation of such an illiquid claim for damages in this
application in the prevailing circumstances is clearly irregular and with that
wholly incomplete. There is no indication of how the applicant’s claim for
damages is founded and quantified and the raising of such an illiquid claim for
financial damages amounts to an abuse of process.
[17] In National Director of Public Prosecutions v Zuma12, the Supreme Court of
Appeal clarified the Plascon -Evans principle as follows:
11 2021 3 SA 425 SA at para 92.
12 2009 (2) SA 277 (SCA), at para 26.
“Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual issues
because they are not designed to determine probabilities.”
[18] Rule 6(5)(g) of the Uniform High Court Rules provides that where an application
cannot be properly decided on affidavit, the court may dismiss the application
or make such order as it deems fit with a view to ensuring a just and
expeditious decision.
[19] The applicant in referencing there allegedly being breaches of his rights,
including fundamental constitutional rights in this opposed application; then
enjoys the onus of formulating and making out a substantial case to this end.
With this, the applicant is required to correctly and substantially frame his cause
of action and which in the face of foreseeable opposition includ ing disputes of
fact arising; will entail leading of oral witness testimony and in the
establishment of the applicant’s case.
[20] In the face of the applicant’s founding and replying affidavit s being
substantively incomplete and devoid of necessary and material facts required in
the proper formulation of the allegations and claims and this then being
aggravated with the further introduction by the applicant of the above il liquid
financial claim for damages in the amount of R 1 Million and which in so doing ;
the applicant could and should have realized will culminate in a serious dispute
of fact arising that is not capable of resolution on the court papers at hand; this
court has proceeded to dismiss the application and with an appropriate punitive
order as to costs against the applicant.
ORDER
Accordingly , this application has been dismissed and on the basis below.
[1] “That the application is dismissed.
[2] That the Applicant pays the Respondents cost on the attorney and client scale
and counsel on Scale B.”
MEADEN JR
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 1 7h00 on this 20th day of January 2025.
Appearances
For Applicant: TN Baloyi (Baloyi Ntsako Attorneys Inc.)
For Respond ents: Office of the State Attorney – Ref Mr. E Scharf
Date of Hearing: 05 November 2024
Date of Judgment: 20 January 2025