Sabisa and another v Minister of Police
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Nhlangulela DJP |
| Judgment Date | 20 June 2023 |
| Citation | 2023 JDR 2404 (ECM) |
| Hearing Date | 13 June 2023 |
| Docket Number | 2889/2016 |
| Court | Eastern Cape Division |
Nhlangulela DJP:
2023 JDR 2404 p2
Nhlangulela DJP
Introduction
The plaintiffs each instituted an action against the Minister of Police for wrongful arrest and detention, assault, and contumelia at the hands of various policemen/women who were employed by the Department of South African Police Service. The Minister is cited as the political head of the department. He is vicariously liable in law for delicts committed by the members of his department. For those delicts, the plaintiffs each seek judgment against the Minister for the payment of damages in the sum of approximately R10m.
The Minister has filed a notice of intention to defend the plaintiffs’ action.
Pleadings
In pleading the claims for unlawful arrest and detention the plaintiffs alleged that the members of the SAPS committed an unlawful arrest in that they did not produce any warrant authorizing them to do so and, even if the warrants had been issued in terms of the provisions of s 43 of the CPA, the members did not have justification for executing warrants against them. As regards the claim for unlawful detention the plaintiffs alleged that their detention from 18 April 2016 to 26 April 2016 was unlawful as it derives from unlawful arrest. As I understood the pleadings, duly amplified by the pleaded factual bases and evidence adduced the plaintiffs seek to hold the defendant vicariously liable for the pleaded breaches, including for the sequelae suffered as a result thereof. Ultimately, the plaintiffs seek payment of delictual damages against the defendant as a solatium for injuries to dignity, liberty, physical integrity, and feelings. An exception to the pleaded claims did not arise in this case.
2023 JDR 2404 p3
Nhlangulela DJP
The defendant’s plea to the plaintiffs’ claims is rooted in the defence that since the members of the SAPS effected the arrest and detained the plaintiffs on the strength of the valid warrants of arrest issued by the magistrate of Tsolo on 18 April 2016, discovered as Item 3 and Item 4, the plaintiffs’ claims fall to be dismissed. In that event, the plaintiffs cannot be heard to say that the arrest and detention were not lawful, so the argument went on. It was pleaded further on behalf of the defendant that the warrants of arrest were produced by the arresting officer and shown to the plaintiffs at the time of their arrest on 18 April 2016. It was also pleaded that the members were justified in executing the warrants of arrest. The detention of the plaintiffs from 18 April 2016 to 26 April 2016 is admitted. The assault and torture were flatly denied. In putting his defense in a proper perspective, the defendant pleaded that upon the arrest of the plaintiffs on 18 April 2016 under valid warrants of arrest, the plaintiffs were admitted to St Mary’s Hospital, Mthatha on 19 April 2016, and they remained there on the authority of the court which had remanded them to 26 April 2016. In a nutshell, the defence pleaded on behalf of the Minister is that the plaintiffs’ claims fall to be dismissed on the bases that they were arrested and detained lawfully, it is not true that the plaintiffs were assaulted and tortured whilst being in the custody of the police and that they were treated in a civilized manner from the time of the arrest, incarceration in the awaiting trial police cells of Mthatha Central Police Station and until they left the custody of the police.
I now turn to deal with the defence that the plaintiffs’ pleading is bad for the reason that they pleaded only the case that their entitlement to judgment is predicated on the absence of warrants of arrest. It was submitted on behalf of the defendant that the plaintiffs’ particulars of claim cannot call upon the defendant to answer to the case of arrest without a warrant and then add the case of the improper
2023 JDR 2404 p4
Nhlangulela DJP
manner of execution of the warrants of arrest. In this regard, reliance was made on the case of Imprefed (Pty) Ltd v National Transport Commission [1] . It was argued that the plaintiffs did not plead an alternative claim that the existing warrants were invalid. The Court was urged to have regard only to the cause of action based on warrantless arrest as that is the claim that is defined by the plaintiffs’ pleadings-in terms as stated in Shill v Milner [2] . The court was exhorted to mark its displeasure with improper pleading by dismissing the plaintiffs’ claims.
The submission that the plaintiffs in their pleadings drew the attention of the defendant to one case but stated a different case at the trial without recourse to the practice rules provided for the amendment of pleadings, does not have merit. In their particulars of claim, in paragraph 5.7 the plaintiffs make the following allegations:
When arresting the [plaintiffs], the aforementioned police officers and other police officers, whose names are unknown to the plaintiffs:
. . .
did not produce any warrant [s] for the arrest of the [plaintiffs] and did not have any justification for executing a warrant of arrest on the [plaintiffs] even if one was available.’
In my understanding of paragraph 5.7, the pleading provides for the scenarios of both the arrest with and without a warrant. And the issue being raised in both the pleadings and the evidence that was led at the trial it became plain that the gravamen of the plaintiffs’ case was that the arrest and detention were unlawful. is the unlawfulness of arrest and detention. Therefore, it remains for the evidence led at the trial to bring home a final decision to be made by this court whether the arrest and detention were lawful or not.
2023 JDR 2404 p5
Nhlangulela DJP
In the context that the material facts inscribed in the pleadings that crystalise the real dispute between the parties, I ruled in the case of N. Plaatjies v Minister Police [3] that a legal objection that less than, or more than, the ideal facts to be proved or disproved should have been inscribed on the pleading is untenable. In this case, the objection is framed similarly, albeit that the defendant targets the cause of action based on arrest with a warrant that is said to have not been pleaded. I have found that, as a fact, the plaintiffs pleaded an unlawful arrest with or without a warrant. However, it will help to also state that to plead a cause of action that fails to disclose a real dispute sought to be adjudicated would be improper. This was illustrated in the case of Christiaan Benjamin Weitz v Minister of Safety and Security and Others [4] where Plasket J (as he was then) said in paragraph 20:
‘The question of how Magadlela exercised his discretion to arrest arises somewhat obliquely from the pleadings, but it was accepted by both Mr Mouton who, together with Ms Bands, appeared for Weitz, and Mr Zilwa, who appeared for the Minister of Safety and Security and Magadlela, that this was the true crux of the case. As a result, Magadlela’s reasons for executing the warrant were put to Weitz in cross-examination; Magadlela testified as to how he took the decision when he was led, and did so in relation to paragraph 11 of Weitz’s amended particulars of claim; and he was cross-examined on this at some length. As a result, even if it could be said not to have been raised properly in the pleadings, it was understood by the parties to have been an issue on the pleadings and it certainly was canvassed fully in the evidence. I am therefore in a position to deal with what is clearly the real issue in the trial.’
2023 JDR 2404 p6
Nhlangulela DJP
In the application for leave to appeal [5] Plasket J (as he was then) stated:
The cases do not draw a distinction between an issue being pleaded inadequately and not being pleaded at all. In Collen v Rietfontein Engineering Works,[2] a case I cited in my judgment, the court decided the matter on the basis of a contract that was never pleaded, and contained different terms to the one that was, because all relevant material having been produced in evidence and placed before the court, it ‘would be idle for it not to determine the real issue which emerged during the course of the trial’.
In Middleton v Carr, also a case cited in my judgment, Schreiner JA, where a party sought to rely on an unpleaded tacit contract, stated that ‘where there has been a full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the Court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised’.
The onus of proof
Whereas both parties admitted that the overall onus to prove the plaintiffs’ claim lies with the plaintiffs, the duty to justify the arrests and detention lies on the minister. The reason for this is that the arresting of arrest of the plaintiffs is admitted but in law, the wrongfulness has to be justified by those policemen/women who affected the arrests of the plaintiffs on 18 April 2/20/16. The authority for that proposition is the case of Minister of Law and Order and Others v Hurley and Another [6] . The duty to justify arrest does not change even if the arresting officer arrests or purports to arrest a person on the strength of a
2023 JDR 2404 p7
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warrant. The authority for this proposition is the Minister of Safety and Security v Sekhoto And Another [7] . It was agreed between the parties that the duty to lead evidence first lies with the plaintiffs as the onus-bearing parties.
The approach towards discharging onus to prove wrongful detention is like the approach adopted towards proving wrongful arrest. This was authoritatively laid down in the case of De Klerk v Minister of Safety and Security [8] .
the approach adopted by the parties finds resonance with the analysis of the provisions...
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