Newman v Prinsloo and Another

• Jurisdiction: South Africa
• Judge: Margo J
• Judgment Date: 21 August 1972
• Citation: 1973 (1) SA 125 (W)
• Hearing Date: 21 August 1972
• Court: Witwatersrand Local Division

Margo, J.:

E This is an application in terms of Rule 21 (6) to compel the respondent to deliver certain further particulars to their plea. It will be convenient to refer to the applicant as the plaintiff and the respondents as the defendants.

F In the particulars to his summons the plaintiff sets out two separate claims. Claim (A) is for damages for alleged malicious prosecution, and claim (B) is for damages in consequence of an alleged 'unlawful apprehension'. We are concerned in this application only with claim (B), in which the relevant averments read as follows:

'7.

On or about 30th September, 1971. and at Johannesburg, a G prosecutor whose identity is to the plaintiff unknown applied for a warrant for the apprehension of the plaintiff on a charge of contravening sec. 70 oct. (4) read with sec. 70 oct. (1) of Act 46 of 1926 and pursuant thereto the plaintiff was on the same day arrested by the first defendant on the said charge.

8.

The aforesaid warrant for the apprehension of the plaintiff and his arrest pursuant thereto were unlawful and without reasonable and probable cause.

9.

The first defendant wrongfully and maliciously instigated the aforesaid application for a warrant for the apprehension of the plaintiff and incited and/or encouraged the prosecutor to make such application. H

10.

In consequence of his aforesaid unlawful apprehension the plaintiff has been injured in his good name and reputation and has suffered damages in the sum of R25000.

11.

At all times material hereto the first defendant was acting in the course of his duties as a member of the South African Police in the employ of the State and was acting within the scope of his duties as such.

Margo J

12.

At all material times hereto the aforesaid prosecutor was acting as an official in the Department of Justice and as such a servant of the State and acted within the scope of his duties as such.'

In a request for further particulars the defendants, in respect of para. A 8 of the particulars to the summons, asked for details of the respect in which the warrant was unlawful. The reply to that reads as follows:

'The warrant for the apprehension of the plaintiff was unlawful in that there was no reasonable and/or probable cause therefor.'

In para. 5 of their plea, the defendants admit para. 7 of the particulars to the summons. In para. 6 the defendants plead as follows to para. 8 of the particulars to the summons:

'6.

B Defendants deny each and every allegation contained in this paragraph and plead that the warrant and the consequent arrest were lawful and for good and reasonable cause as is set out in para. 4 (v) alternative above.'

It is clear that the reference to para. 4 (v) is a typographical error for para. 2 (v) the alternative portion of which reads as follows:

'The first defendant pleads that he reasonably and bona fide believed C that there was reasonable and probable cause for preferring a charge against plaintiff for contravening sec. 70 oct. (4) read with sec. 70 oct. (1) and sec. 229 of the Companies Act, 46 of 1926 (sic).'

In respect of para. 6 of the plea, incorporating the alternative portion of para. 2 (v), the plaintiff requested the following further particulars:

'4 Ad para. 6:

(a)

Do the defendants allege that the lawful and good and reasonable cause for the warrant and the consequent arrest was the first defendant's alleged reasonable and bona fide belief that there was reasonable and probable cause for preferring the charge against the plaintiff? D

(b)

If the answer to the question to the preceeding sub-paragraph is in the negative, the defendants are required -

(i)

to furnish full and precise details of the lawful and good E and reasonable cause that existed for the warrant and the consequent arrest of the plaintiff;

(ii)

to elucidate the reference in para. 6 of the plea to the alternative to para. 4 (v) thereof.'

The reply to this request reads as follows:

'This paragraph contains essentially a denial of plaintiff's allegations. The reference to para. 4 (v) alternative emphasizes the defendant's denial.'

F As before, 'para. 4 (v)' should read 'para. 2 (v)'.

The plaintiff now applies to compel the defendants to deliver the further particulars requested to para. 6 of the plea. It was common cause as between counsel that the plaintiff would be entitled to these particulars for the purpose of pleading, only if the onu...