Makushu and Others v Minister of Safety and Security (662/2011) [2016] ZALMPTHC 6 (1 February 2016)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NO: 662/2011

DATE: 1 FEBRUARY 2016

In the matter between:

SOLOMON MAKUSHU................................................................................................1st

PLAINTIFF

MBULAHENI NDOU....................................................................................................2nd

PLAINTIFF

RABELANI MBEDZI....................................................................................................3rd

PLAINTIFF

And

THE

MINISTER OF SAFETY AND SECURITY.........................................................DEFENDANT

JUDGMENT

MV SEMENYA

[1] Defendant excepted to Plaintiffs' particulars of claim on the basis that they do not contain necessary averments to disclose the cause of action, alternatively, that the amended particulars are vague and embarrassing.

(2) The main complaints raised are that in most paragraphs, plaintiffs are pleading evidence, draw legal conclusions, express their own opinion and make factual findings. That this is a function that should be left to the judicial officer’s determination.

[3] Counsel for the defendant argued that the defendant would be embarrassed which embarrassment would lead to prejudice should he be expected to plead to these particulars of claims as they stand. She further contended that instead of pleading material facts on which its action is based, plaintiffs plead evidence which makes it difficult to determine what their cause of action actions are.

In their particulars of claim, plaintiff deal in detail with what happened at the scene prior their arrest, during the arrest and after. It also state comprehensively what each person involved said or did, the explanation given by the plaintiffs to police and that given to the police by their employer. The contents of the police case docket and what witnesses said in their statement are also touched.

In addition to stating what witnesses said, the plaintiffs went further to highlight the contradiction in their statements, the improbabilities of what they have stated and the failure by the arresting officer to accept what they refer to as exculpatory statements.

Plaintiffs’ Counsel argued that they have drawn their particulars in line with the decision in Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA). I have read the Judgment and fail to find anything that lends support to the argument that the plaintiffs’ particular of claim should contain a comprehensive account of material facts on which they rely. The Judgment does not in anyway, alter or add to Rule 18 (4) as it now stands. It also does not state that the plaintiff is allowed plead evidence or express an opinion.

I fully agree with defendant’s contention that it is difficult to ascertain from the plaintiffs' particulars of claim what the questions in issue are. I find that the defendant will indeed be prejudiced due to the embarrassment it will have to face should it be expected to plead. It will have to state evidence to counter the allegations made by plaintiffs, make its own opinion, draw its own inferences and make legal and factual findings.

In Buchner and Another v Johannesburg Coin Co PTY Ltd 1995 (1) SA 215 (T) at 215 H - J it was stated that:

"77ie necessity to plead material facts does not have its origin in this Rule (referring to Rule 18 (4)). It is fundamental to the judicial procoss that the factors have to be established. The court, on the established fact, then applies the rules of lav,v and draw conclusions as regards the rights and obligations of the parties and gives judgment A summon which

propounds the plaintiffs own conclusions and opinions instead of material facts is defective. Such summon does not set out a cause of action”.

If find that plaintiffs' particulars are couched in such a way that they fail to disclose the cause of action as envisaged in Buchner (supra) in addition to them being vague and embarrassing.

In conclusion the following order is made

1. The exception is upheld.

2. Plaintiffs is afforded the opportunity to remove the cause of complaint within thirty (30) days if they so wish.

3. Cost reserved.

M V SEMENYA

ACTING

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON : 02 NOVEMBER 2015

DELIVERED ON : 01 FEBRUARY 2016

FOR PLAINTIF : ADVOCATE TP SYMAN

INSTRUCTED BY : ERWEE ATTORNEYS INC

FOR DEFENDANT : ADVOCTE TSATSI

INSTRUCEDBY : STATE ATTORNEY, THOHOYANDOU