Dease v Minister of Justice

• Jurisdiction: South Africa
• Judge: Munnik AJ
• Judgment Date: 25 October 1960
• Court: Transvaal Provincial Division
• Hearing Date: 04 October 1960
• Citation: 1962 (3) SA 215 (T)

Dease v Minister of Justice
1962 (3) SA 215 (T)

1962 (3) SA p215

Citation	1962 (3) SA 215 (T)
Court	Transvaal Provincial Division
Judge	Munnik AJ
Heard	October 4, 1960
Judgment	October 25, 1960

Flynote : Sleutelwoorde A

Police — Actions against — Limitation of — Sec. 32 of Act 7 of 1958 — Notice in writing required by — Essentials of — State — Liability for acts of police — Minister in plea in abatement relying on failure to give notice as required by sec. 32 of Police Act, 7 of 1958 - Necessary averments.

Headnote : Kopnota

B The wording of section 32 of the Police Act, 7 of 1958, is such that it does not require the plaintiff to set out his cause of action in the technical sense of the words 'cause of action'. All that a plaintiff is required to do is to set out the facts which have given to the proposed action and to such an extent that the defendant is put in a C position to make the necessary investigations.

In an action by the plaintiff for damages for assault the plaintiff averred that members of the police had committed such assault in the course of their employment as servants of the defendant, the Minister. It was further averred that the members of the police concerned had been 'performing police duties, the precise nature of which is peculiarly within the knowledge of the defendant'. Defendant had filed a plea in D abatement in which he stated that it was a condition precedent to the institution of the action that defendant should in terms of section 32 of the Police Act, 7 of 1958, have been given notice in writing of the action one month at least before the commencement thereof. Plaintiff excepted to this plea on the ground that it disclosed no defence in that the defendant had not averred that the conduct of the defendant's servants was something done by them 'in pursuance of the Police Act'.

Held, that if the police were, at the time of the assault, 'performing E police duties' as alleged in the plea, then they were doing something in pursuance of the Act. Exception accordingly dismissed.

Case Information

Exception to a plea in abatement, alternatively, application to strike out a certain paragraph thereof. The nature of the pleadings appears from the reasons for judgment.

G. Colman, Q.C., (with him A. P. O'Dowd), for the excipient. F

G. Viljoen, Q.C., (with him D. A. Melamet), for the respondent.

Cur adv vult.

Postea (October 25th).

Judgment

G Munnik, A.J.:

On the 25th August, 1959, the excipient issued and caused to be served upon the respondent a summons in which she claimed

'payment of the sum of £1,200 for damages arising out of the injuries H sustained and indignity suffered by plaintiff as a result of an unlawful assault committed upon her by members of the South African Police acting in the scope of their employment as servants of the defendant at the Bantu Hall in Lady Selborne, Pretoria, on the 26th February, 1959'.

For the sake of convenience I shall refer to the excipient and the respondent as the plaintiff and the defendant respectively.

This summons was followed by a declaration containing the following averments relative to the present enquiry:

'3.

On the 26th day of February, 1959, and at the Bantu Hall in Lady

1962 (3) SA p216

Munnik AJ

Selborne, Pretoria, members of the South African Police, whose names are to the plaintiff unknown, wrongfully and unlawfully assaulted the plaintiff by striking her with batons.

4.

The said members of the South African Police committed the said assault in the course of their employment as servants of the defendant.

5.

As a result of the said assault the plaintiff suffered insult, A contumelia, loss of earnings and the following bodily injuries: (The details of these injuries are not relevant and I omit them.) . . . and thus suffered damage in the sum of £1,200.

7.

Notice of the present action and the cause thereof was given to defendant in writing one month before the commencement thereof.'

B In reply to the defendant's request for further particulars to para. 4 of the declaration, which request read as follows:

'What is the nature of the employment which it is alleged that the members of the South African Police were performing at the time of the said assault'

the plaintiff answered as follows:

'The members of the South African Police were performing police duties, the precise nature of which is peculiarly within the knowledge of the defendant.'

C Thereafter the defendant delivered a plea in abatement together with a plea over. The latter is not relevant to the present enquiry, but the former reads as follows:

'1. Defendant admits paras. 1 and 2 of plaintiff's declaration.

2. Ad para. 7:

(a)

Defendant admits that notice of the present action was given to him but refers to paras. 3, 4 and 5 hereof.

(b)

Defendant denies that notice of the cause of the present action D was given to him and refers to para. 6 hereof.

3. Defendant says it was a condition precedent for the institution of the present action by plaintiff that defendant should in terms of sec. 32 of Act 7 of 1958 be given notice in writing of the said action one month at least before the commencement thereof.

4. A notice as per copy marked annexure A, attached hereto, was given to defendant, which said notice was received by the defendant on the 28th E July, 1959.

5. The present action against the defendant was commenced on the 25th...