Botha v Minister of Safety and Security and Others; January v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Tshiki J
• Judgment Date: 01 April 2011
• Citation: 2012 (1) SACR 305 (ECP)
• Docket Number: 575/2009 and 576/2009
• Counsel: GG Goosen SC (with PN Kroon and A Rawjee) for the excipients (defendants). CJ Mouton SC (with LD Ah Shene) for the respondents (plaintiffs).
• Court: Eastern Cape Division

Tshiki J:

(A) Introduction

[1] Both plaintiffs in case Nos 575/2009 (Botha) and 576/2009 (January) were, on 16 March 2008, arrested without a warrant on a charge of murder, and were detained in custody until their first appearance in court on 19 March 2008. On the latter date they were both remanded in C custody to 18 April 2008 when Mr Botha was released on bail, and the charges were withdrawn against Mr January. They are both suing the same defendants for delictual damages arising out of their alleged unlawful arrest and detention up to 19 March 2008, and further detention until their release on 18 April 2008. Plaintiffs' initial arrest and detention were effected by a policeman, and their further detention from D 19 March to 18 April 2008, having been applied for by the prosecutor, was authorised by the magistrate before whom they appeared in court.

[2] The allegations made by the plaintiffs in the above two matters are almost identical and are directed against the same defendants. The E exception by the first defendant to the plaintiffs' particulars of claim in each case is based on the same grounds. Therefore, I have been requested by the parties to prepare one judgment in respect of the two matters and I agree that there would be no prejudice to anyone if I prepare and write one judgment in respect of the two exceptions. In any event, it would be convenient and cost-effective for the parties if I do so. F

(B) Exceptions

[3] The controversy between the plaintiffs and the first and fourth defendants arises, and the exceptions relate, to the plaintiffs' allegations G regarding the second detention from 19 March 2008 to 18 April 2008. With regard to the second detention, plaintiffs seek to hold the first and fourth defendants jointly and severally liable.

[4] It is the plaintiffs' contention in the particulars of claim that the arresting officer and/or any other unknown policeman involved in the H purported investigation against the plaintiffs knew, alternatively ought to have known, that no reasonable, objective grounds or justification existed for their subsequent and continued detention. They could easily have ascertained by the taking of simple investigative steps that no such grounds or justification existed but failed to take any such steps. They, I therefore, failed in their duty to inform the relevant prosecutors dealing with the matter that there were no grounds or justification and indeed no objective facts reasonably linking the plaintiffs to the alleged murder. Consequently, plaintiffs contend that the police failed to take any steps whatsoever to ensure that the plaintiffs were released from detention as soon as possible. J

Tshiki J

A [5] As against the second and/or fourth defendants' employees, [*] plaintiffs contend that the prosecutor(s) who dealt with the case and had control over the relevant police docket and who dealt with the plaintiffs from time to time during their court appearances:

(i)

failed in his/her/their duty to acquaint himself/herself/themselves with the contents of the relevant police investigation docket from B which it would have been obvious that there were no reasonable grounds or justification for the continued detention of the plaintiffs;

(ii)

failed in his/her/their duty to timeously withdraw the charges against the plaintiffs;

(iii)

failed in his/her/their duty to inform any presiding officer expeditiously C that there were no objective facts reasonably linking the plaintiffs to the alleged crime of murder;

(iv)

in any event failed in his/her/their duty to ascertain independently that no reasonable grounds or justification existed for the continued detention of the plaintiffs;

(v)

failed to take steps to ensure that the plaintiffs were released from D detention as soon as possible.

[6] In response to the above allegations in the particulars of claim and in the exceptions, defendants submit that it is the prosecutor who is solely responsible for objecting to the release of an awaiting-trial prisoner and E to make representations for his further detention to the presiding officer; and there is no legal duty on the investigating officer, outside of placing a fair and honest statement of the relevant facts before the prosecutor, to make representations to the latter regarding the grounds or justification for the continued detention of an awaiting-trial prisoner once that F prisoner has appeared before court. Therefore, says the first defendant, the decision on whether to further detain the accused or to oppose bail is that of the prosecutor, and the decision to grant or refuse bail rests upon the exercise of a discretion by the presiding officer.

[7] First defendant therefore contends that the plaintiffs do not make G allegations in their particulars of claim which are sufficient to establish a causal link between the conduct of the investigating officer and the plaintiffs' continued detention as awaiting-trial prisoners. In the premises, plaintiffs have failed to allege facts sufficient to sustain a cause of action, alternatively have drafted particulars of claim which are vague and embarrassing. Therefore, the defendants are unable to fully or H properly deal therewith or plead thereto or to appreciate the nature of the plaintiffs' claim in that regard.

[8] During the argument of the exception Mr GG Goosen SC with Mr PN Kroon and Ms A Rawjee appeared for the defendants (excipients), and Mr CJ Mouton SC with Mr LD Ah Shene appeared for the plaintiffs I (respondents).

Tshiki J

(C) Merits of the exceptions

[9] An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action, or the specific defence relied upon. [1] B

[10] The true object of an exception is either, if possible, to settle the case, or at least part of it, in a cheap and easy fashion, or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception. [2] When an exception is considered for decision by C the court the facts alleged in the pleadings are taken as correct, and that principle does not extend to facts which on the face of them are manifestly false and so divorced from reality that they cannot possibly be proved. [3]

[11] In paras 12 – 14 of the particulars of claim both plaintiffs have pleaded similarly, as follows: D

'12.

Subsequent to his first appearance before a magistrate on 19 March 2008, the plaintiff was further wrongfully and unlawfully detained at the instance of employees of all the defendants until he was released on bail on 18 April 2008, when he was released from detention. E

13.

The further detention of the plaintiff from 19 March 2008 until 18 April 2008 was wrongful and unlawful in that:

13.1

the said Inspector van Zyl and/or other unknown policemen involved in the purported investigation of the matter against the plaintiff:

(i)

knew; alternatively, ought to have known; that no F reasonable or objective grounds or justification existed for either the arrest of the plaintiff or his subsequent and continued detention;

(ii)

could have easily ascertained by the taking of simple investigative steps that no such grounds or justification existed, but failed to take any such steps; G

(iii)

failed in his/their duty to inform the relevant public prosecutor/s dealing with the matter that there were no such grounds or justification and indeed no objective facts reasonably linking the plaintiff to the alleged crime of murder;

(iv)

failed to take any steps whatsoever to ensure the plaintiff H was released from detention as soon as possible.

13.2

The prosecutor or prosecutors, whose identities are unknown to the plaintiff, who had control over the relevant police docket and who dealt with the plaintiff from time to

Tshiki J

time during his several court appearances until he was released on bail on 18 April 2008:

(i)

failed in his/her/their duty to acquaint himself/herself/ themselves with the contents of the relevant police investigation docket from which it would have been obvious that there were no reasonable grounds or B justification for the continued detention of the plaintiff;

(ii)

failed in his/her/their duty to timeously withdraw the charge against the plaintiff;

(iii)

failed in his/her/their duty to inform any of the presiding magistrates expeditiously that there were no objective facts reasonably linking the plaintiff to the alleged crime C of murder;

(iv)

in any event failed in his/her/their duty to ascertain independently that no reasonable grounds or justification existed for the continued detention of the plaintiff;

(v)

failed to take any steps to ensure that the plaintiff was released from detention as soon as possible.

14.

14.1

D At all times material hereto the said Inspector van Zyl and/or the other policemen referred to above were employees of the first defendant acting in the course and scope of their employment as members of the aforesaid Service; further or alternatively, as employees of the Government of the Republic of South Africa.

14.2

At all times material hereto the aforesaid prosecutor/s E was/were employees of the second defendant; further or alternatively, of the fourth defendant; further alternatively, of the third defendant, acting in the course and scope of their employment as such.'

F [12] In the present case the exception is based on the fact that the pleading concerned lacks averments which are necessary to sustain an action. I say so because it is the contention of the first defendant that 'the plaintiff(s) has failed to allege facts sufficient to sustain a cause of...