REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2543/2024
In the matter between:
NALEDZANA SIMSON SINTHUMULE PLAINTIFF
And
MINISTER OF POLICE DEFENDANT
_______ _____
JUDGMENT
KGANYAGO J
(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . 81 G NATURE: ............ .
[1] The plaintiff has instituted an action against the defendant for alleged unlawful
arrest and detention. According to the plaintiff’s particulars of claim he was
arrested on 11 th June 2023 without a warrant by members of the South
African Police Service (SAPS) stationed at Seshego Police Station whose full
names and further details are unknown to him. He was detained at Seshego
Police Station for four days and thereafter released without making an
appearance in court. The plaintiff has further stated that the said unknown
police officers were acting within the course and scope of their employment.
[2] The defendant is defending the plaintiff’s action . In his plea the defendant has
raised a special plea of the plaintiff’s non -compliance to The Institution of
Legal Proceedings Against Certain Organs of State Act. On the merits the
defendant has admitted that members of the SAPS act within the course and
scope of employment with the defendant when they are on duty. For the
remainder of the plaintiff’s particulars of claim the defendant had pleaded that
the allegations are unknown to him, cannot admit same and put the plaintiff to
proof thereof.
[3] The plaintiff has noted an exception against the defendant ’s plea on the
grounds that it lacks averments which are necessary to sustain a defence. In
substantiating his exception, the plaintiff has stated that as provided by Rule
18(4), every pleading shall contain a clear and concise statement of the
material facts upon which a pleader relies for his claim or defence or answer
to any pleading, as the case may be, with sufficient particularity to enable the
opposing party to reply thereto. It is unclear on the defendant’s plea as to
what are the grounds for the defence since defendant only admits and deny
the paragraphs of the plaintiff’s particulars of claim without reasons or
sufficient particularity thereto.
[4] The plaintiff further stated that Rule 18(5) provides that when in any pleading a
party who denies an allegation of fact in a previous pleading of the opposing
party, he shall not do so evasively but shall answer the point of substance. It
is clear from the defendant’s plea that the defendant ignored to state the
reasons for the denial of the allegations in the plaintiff’s claim but merely
denied important allegations which contains the basis of the plaintiff’s claim
evasively.
[5] A party who raises an e xception will be complaining about the defect in the
pleadings and notifying the other party to cure the defect . In the case at hand
the plaintiff’s cause of complaint is that the defendant’s plea lacks averments
which are necessary to sustain a defence. The defendant failed to cure the
alleged defect despite been served with a notice in ter ms of Rule 23 of the
Uniform Rules of Court (the Rules). That led to the plaintiff noting an
exception and setting it down for adjudication. On the date of the adjudication
of the exception the defendant was in default , and th e exception is be ing
decided upon on the version of the pl aintiff only. I am called upon to
determine whether the defendant’s plea as it stand is excipiable.
[6] In order to succeed an excipient has a duty to persuade the court that upon
every interpretation which the pl eading in question can reasonably bear, no
cause of action is disclosed, failing which the exception ought not to be
upheld. In Living Hands v Ditz1 Makgoka J said:
1 2013 (2) SA 368 (GSJ) at para 15
“Before I consider the exceptions, the overview of the applicable general principles distilled
from case law is necessary:
(a) In considering an exception that a pleading does not sustain a cause of action, the court
will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a
cause of action.
(b) The object of an exception is not to embarrass one’s opponent or to take ad vantage of a
technical flaw, but to dispose of the case or a portion thereof in an expeditious manner, or to
protect oneself against an embarrassment which is so serious as to merit the costs even of an
exception.
(c) The purpose of an exception is to raise a substantive question of law which may have the
effect of settling the dispute between the parties. If the exception is not taken for that purpose,
an excipient should make out a very clear case before it would be allowed to succeed.
(d) An exc ipient who alleges that a summons does not disclose a cause of action must
establish that , upon any construction of the particulars of claim , no cause of action is
disclosed.
(e) An over-technical approach should be avoided because it destroys the usefulness of the
exception procedure, which is to weed out cases without legal merit.
(f) Pleadings must be read as a whole and an exception cannot be taken to a paragraph or a
part of a pleading that is not self-contained.
(g) Minor blemishes and unradical embarrassment caused by a pleading can and should be
cured by further particulars”.
[7] In C.W v GT2 it was held that:
“…the respondent’s exceptions were predicated on the contention that the applicant’s
particulars of claim did not disclose a cause of action. The test in this regard is trite: the court
asks the question upon any construction of the particulars of claim, no cause of action is
disclosed. The exceptions could only be upheld if this question was answered in the
disclosed. The exceptions could only be upheld if this question was answered in the
2 [2023] ZASCA 23 (13 March 2023) at para 35
affirmative. The onus is on an excipient such the respondent, to establish this. This should
have been the starting point for the high court in considering the exceptions. Unfortunately, it
did not embark upon such an enquiry. I do so now, in the light of the averments in the
particulars of claim”.
[8] The defendant in his plea has conceded that members of the SAPS when on
duty act within the course and scope of employment . For the remai nder of
plaintiff’s cause of action , the defendant could not admit as he alleges that
those facts are unknown to him and put the plaintiff to the proof . The
concession made by the defendant do not specifically refers to the members
of the SAPS who had allegedly arrested and detained the plainti ff on the day
in question, but to any members of the SAPS who arrest whilst on duty that he
or she will be acting within the course and scope of employment.
[9] As the defendant’s averment s in his plea are that the allegations which the
plaintiff’s cause of action is based are unknown to him, it will not be expected
of the defendant to add any further facts to his plea. The mere fact that the
defendant is stating that the facts which the plaintiff is relying on in his cause
of action is unknown to him, is the basis of his defence and is sufficient to
enable the plain tiff to reply and put facts which he fee ls are necessary in a
replication.
[10] The plaintiff in his particulars of claim is alleg ing that the arrest was unlawful
and wrongful. The plain tiff is seeking compensation for non -patrimonial
damages. Since the defendant is neither admitting or denying the arrest and
detention, the onus will be on the plaintiff to (i) establish that his liberty has
been interfered with; (ii) establish that this interference occurred intentionally ,
and not that the defendant knew that it was wrong to do so; (iii) the
deprivation of liberty must be wrongful, with the onus falling on the defendant
to show why it is not; and the plaintiff must establish that the conduct of the
defendant must have caused, both legally and factually, the harm for which
compensation is sought. (See De Klerk v Minister of Police 3). Upon
establishing these requirements, the defendant will be bound by his papers on
how to justify his defence as pleaded.
[11] Counsel for the plaintiff was engaged on what more facts could the defendant
have added to his plea if the facts which the plaintiff’s cause of action was
based was unknown to him, and his response was that the defendant should
have consulted properly. There is no evidence that counsel for the defendant
did not consult properly before preparing the defendant’s plea . What counsel
for the plaintiff was submitting was merely assumption which does not assist
the court in any way.
[12] It is not correc t that the defendant in his plea only admit, deny and note the
paragraphs of the plaint iff’s particulars of claim without reasons or sufficient
reasons. The defendant has stated that the allegations are unknown to him
hence he could not admit and put the plaintiff to proof. In my view, with the
averments made in the plea, it cannot be said that upon any construction of
the defendant’s plea, no defence has been disclosed or that the plea lacks
sufficient particu lars to enable the plaintiff to prepare for his case, or file a
replication if he so wishes. Accordingly, the plaintiff’s exception stands to fail.
[13] In the result the following order is made:
13.1 The plaintiff’s exception to the defendant’s plea is dismissed.
13.2 There is no order as to costs.
3 [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC); 2020 (8K6) QOD 1 (CC)
(22 August 2019) at para 14
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the plaintiff : Adv Mawela
Instructed by : Harman Nethonda Attorneys
INC
Counsel for the defendant : In default
Date heard : 20th July 2026
Electronically circulated on : 28th July 2026