Bisha and Others v Minister of Police (4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020) [2021] ZAECMHC 24 (13 July 2021)

Bisha and Others v Minister of Police (4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020) [2021] ZAECMHC 24 (13 July 2021)

The court held that applications for default judgment in claims for unliquidated damages arising from unlawful arrest and detention cannot be set down in motion court. The Judge President's directive applies to such matters, requiring that they be heard on the trial roll with oral evidence. The plaintiffs must prove the facta probanda by acceptable evidence, and the onus on the defendant to justify the arrest only arises after the plaintiff has established the relevant facts. The use of affidavits or separation of issues does not circumvent the need for viva voce evidence. The applications for default judgment are therefore removed from the roll, and no order as to costs is made.

Citation
[2021] ZAECMHC 24
Parties
Plaintiff: Lucas Bisha; Plaintiff: Ntomikhona Zikalala; Plaintiff: Kholiswa Stungwa; Plaintiff: Sanele Mlambo; Plaintiff: Cebo Rashalala; Plaintiff: Nkosithethile Mafa; Defendant: Minister of Police
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
13 July 2021
Case Number
4144/2020, 1124/2019, 3806/2021, 4143/2020, 80/2021, 4342/2020
Procedural Posture
Civil Procedure / Application for Default Judgment; Interlocutory Determination on Procedural Propriety
Outcome
Applications for default judgment are removed from the roll; no order as to costs.
Judges
R W N Brooks, F B A Dawood, B R Tokota
Legal Topics
Default Judgment, Unliquidated Damages, Unlawful Arrest, Actio Iniuriarum, Judicial Directives, Separation of Issues
Civil Procedure Delict Default Judgment Unliquidated Damages Unlawful Arrest Actio Iniuriarum Judicial Directives Separation of Issues

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Parties

Lucas Bisha

Plaintiff

Ntomikhona Zikalala

Plaintiff

Kholiswa Stungwa

Plaintiff

Sanele Mlambo

Plaintiff

Cebo Rashalala

Plaintiff

Nkosithethile Mafa

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Procedure / Application for Default Judgment; Interlocutory Determination on Procedural Propriety

Legal Issues

  1. 1 Is it procedurally appropriate to set down applications for default judgment in motion court where unliquidated damages are claimed for unlawful arrest and detention against the Minister of Police.
  2. 2 Does the Judge President's directive apply to such applications for default judgment.
  3. 3 Can plaintiffs establish the merits of their actio iniuriarum by affidavit rather than viva voce evidence in default judgment proceedings.

Ratio Decidendi

The court held that applications for default judgment in claims for unliquidated damages arising from unlawful arrest and detention cannot be set down in motion court. The Judge President's directive applies to such matters, requiring that they be heard on the trial roll with oral evidence. The plaintiffs must prove the facta probanda by acceptable evidence, and the onus on the defendant to justify the arrest only arises after the plaintiff has established the relevant facts. The use of affidavits or separation of issues does not circumvent the need for viva voce evidence. The applications for default judgment are therefore removed from the roll, and no order as to costs is made.

Court Disposition

Applications for default judgment are removed from the roll; no order as to costs.

Orders

  • The applications for default judgment are removed from the roll.
  • No order for costs is made in respect of these proceedings or the costs reserved on 28 April 2021.