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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case Number.: 13/2021
In the matter between:
MINISTER OF POLICE Applicant
and
N[...] S[...] obo L[...] M[...] Respondent
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
Beshe J:
[1] This is an application for leave to appeal against the judgment and order I
rendered on the 8 August 2024. In the judgment I found the applicant who was the
first defendant in the action liable for damages suffered by plaintiff’s son as a result
of being unlawfully arrested, detained and assaulted. The second defendant was
absolved from liability. The application is opposed. At paragraph [51] of the
judgment, I made the following finding: Applicant is liable for damages suffered by
plaintiff’s son as a result of unlawful arrest, detention and assault after the traffic
officers had left. As I understand it, the main thrust of applicant’s complaint or ground
of appeal is that:
I committed a misdirection in finding that the defendant was liable for damages – for
assault on the basis that plaintiff’s son was assaulted by Sergeant Thungatha after
the traffic officers had left. This being so because no claim of assault of assault by
Thungatha in this regard had been instituted. And that therefore the court was not
called upon to adjudicate on such a claim. No such assault was pleaded. In other
words, the plaintiff had not been called upon to meet such a claim. Th is constituted a
new cause of action. So, it was argued. As would appear from what I stated
hereinabove, the claim was against the Minister of Police (applicant) and the Enoch
Mgijima Municipality on the basis that their employees inter alia assaulted plaintiff’s
son. In this regard, paragraph 5 of plaintiff’s particulars of claim reads thus:
5. The plaintiff’s minor son was assaulted by:
5.1 being shot at;
5.2 being struct with a firearm;
5.3 being thrown to the ground where he was kicked and trampled on w ith
booted feet;
5.4 being lifted off the ground and again dropped onto the ground;
5.5 be having his private parts exposed and by having his testicles crushed.
6.1 Subsequent to the assault aforesaid, the said members of the South
African Police Services arrested plaintiff’s son whilst he was on the ground,
placed him in hand cuffs and pulled him to his feet by the handcuffs, and
forcibly pushed him into a waiting van.
In paragraph 7.1 of the particulars of claim, the following is pleaded:
In and as a result of the said assault upon the plaintiff’s minor son
suffered the following injuries and sequelae as a result thereof:
7.1.1 … … …
7.1.2 … … …
7.1.3 … … …
7.1.4 … … …
7.1.5 … … …
7.1.6 a bruised left arm.
7.1.7 … … …
[2] In turn, applicant pleaded as follows:
Paragraph 3.1 According to the defendant’s records, the plaintiff was not
unlawfully arrested and detained by members of the SAPS and in particula r
defendant denies that the plaintiff was assaulted by members of the
defendant.
[3] As rightly pointed by applicant’s counsel, Rule 18 (4) provides that every
pleading shall contain a clear and concise statement of material facts upon which the
pleader relies for his claim, defence or answer to any pleading, as the case may be,
with sufficient particularity to enable the opposite party to reply thereto.
[4] It is trite that parties are limited to their pleadings, that a pleader cannot be
allowed to direct the attention of the other party to one issue and then at the trial
attempt to canvas another. In Minister of Safety and Security v Slabbert1 the court
added that: it is not permissible for the trial court to have recourse to issues falling
outside the pleadings when deciding a case . Later in the same judgment 2 the
following is stated:
‘The court is not bound by the pleadings if a parti cular issue was fully
canvassed during the trial. But there is not the slightest suggestion that matter
was so canvassed. As a matter of fact, neither the plaintiff’s friend nor his wife
testified on his behalf in respect of his state of intoxication at the police
station. … … … The defendant was entitled at that stage, at the very least, to
know that it had to establish that the legality of the continued detention was an
issue.’
1 [2010] 2 All SA 474 SCA at 478 paragraph [11].
2 Page 480 paragraph [22].
[5] Trite also is the principle that pleadings are made for the court and not the
court for the pleadings. That is the duty of the court to determine what the real issues
are between the parties and to decide the case on these real issues.
[6] This is the approach I took during the trial, as indicated in paragra ph [39] of
my judgment, namely that I had a wide discretion to make findings on the evidence
in relation to issues not foreshadowed in the pleadings. And came to the conclusion
that the parties had ample opportunity to place facts before court in respect o f those
aspects that may not have been clearly pleaded.
[7] Having said that I am not of the view that the issue relating to assault by
Sergeant Thungatha constituted a new cause of action if the pleadings are read as a
whole, paragraphs must not be read in isolation.3
[8] In my considered view, the appeal does not have a reasonable prospect of
success on this ground.
[9] I made my credible findings in my judgment, and I abide by them.
[10] Applicant argues that there are reasonable prospects that the appellate court
would find that the awards granted namely R1000 000.00 and R60 000.00 in respect
of assault and wrongful arrest and detention respectively are grossly excessive and
award lesser amounts.
[11] The assaults by members of the applicant m ay not have been as egregious
as that which was perpetrated by the traffic officers. But at the time of the assault by
applicant’s employees, plaintiff’s son was in vulnerable position. Having already
suffered a lot at the hands of traffic officers. Young, scantily clad in the early hours of
the morning and apparently in a state of despair or traumatized. The same applies to
the arrest and detention. In this regard, I am not persuaded that the appeal has
reasonable prospects of success. As far as the arrest and detention are concerned,
it is trite that the right to dignity and freedom and security of a person are core values
it is trite that the right to dignity and freedom and security of a person are core values
3 Jowell v Bramwell-Jones and Others 1988 (1) SA 836 WLD at 902.
of the Constitution. See Minister of Safety and Security v Slabbert supra.4 I am of the
view that the award was fair to both parties.
[12] The complaint regarding the interest awarded has since fallen by the wayside.
The respondent has abandoned the award of interest at the legal rate from date of
demand to date of payment ac cepting that it will be entitled to interest from date of
judgment to date of payment.
[13] Applicant also seeks leave to appeal on the ground that I did not exercise my
discretion regarding costs judicially, in which case if I did, I would have ordered costs
at the Magistrates Court’s scale and that therefore there are reasonable prospects
that another court would find that costs should have been awarded in the
Magistrates Courts’ scale. I gave reasons why I was of the view that cos ts should be
awarded at High Court Scale. I adhere to those reasons. And for those reasons, I do
not think that there are reasonable prospects of success on this ground too.
[14] Accordingly, the application for leave to appeal is dismissed with costs.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Adv: F Petersen
Instructed by : THE STATE ATTORNEY
C/o JOKO & COMPANY INC.
7 Somerset Street
MAKHANDA
Ref.: Mr S Joko
4 At 479 paragraph [20].
Email.: sjoko@jokoco.co.za
Tel.: 041 – 101 1053
For the Respondent : Adv: S H Cole SC
Instructed by : MBAMBO ATTORNEYS INC.
C/o ZILWA ATTORNEYS
41 African Street
MAKHANDA
Ref: Mr H Zilwa
Email: zilwa@zilwaattorneys.co.za
yzilwa@zilwaattorneys.co.za
Tel.: 047 – 531 0356
Date Heard : 17 January 2025
Date Reserved : 17 January 2025
Date Delivered : 15 July 2025