Minister of Police v De Beer (69360/2013, A376/2016) [2017] ZAGPPHC 1112 (8 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 69360/2013

A376/2016

8/11/2017

(1) NOT REPORTABLE.

(2) NOT OF INTEREST TO OTHER JUDGES.

(3) REVISED

In the matter between:

THE MINISTER OF POLICE

APPELLANT

And

JAN DIRK DE BEER

RESPONDENT

JUDGMENT

Fabricius J,

1.

The Respondent in this Full Court Appeal was the Plaintiff in the Court a quo and instituted three claims against the Minister of Police, the Appellant in the present proceedings. The trial Court (Strijdom AJ) granted the relief and refused leave to appeal, which was then granted by the Supreme Court of Appeal in respect of claim 2.

2.

In respect of claim 1 it was alleged that the Plaintiff was arrested without a warrant of arrest by members of the South African Police Service on 13 March 2013 at about 13h00. He was thereafter detained and ultimately released without having been charged. A claim was instituted in respect of "general damages for contumelia, deprivation of freedom and humiliation". In this respect, an award of R20 000 was made, but this is not the subject matter of the appeal. In respect of claim 3 in the Court a quo an amount was claimed for legal expenses, and this was also granted and is not being appealed against. The appeal before us is in respect of Respondent's claim 2 which was formulated as follows:

"5.1 The Plaintiff is a self-employed businessman, and as a result of the unlawful arrest and unlawful detention by members of the SAPS, the Plaintiff was prohibited from conducting his his normal work, and as a result thereof the Plaintiff suffered damages in lost income.

5.2 During the arrest of the Plaintiff by members of the SAPS, the Plaintiff clearly indicated to the arresting officer that he had important business and appointments to attend to later on the day of 13 March 2013, being a meeting for award of several tenders, as per Annexure "B".

5.3 It is clear from the letter received from Bambanani Plant Hire and Civils (hereinafter referred to as "Bambanani ") that such tenders would have been awarded to the Plaintiff had he attended the abovementioned meeting. Such letter is annexed hereto as Annexure "C".

5.4 The Plaintiff furnished Bambanani with quotations regarding the tenders, as per Annexure "D", whereafter the Plaintiff would have received such tenders.

5.5 As a result of the unlawful arrest and unlawful deteniton of the Plaintiff, the Plaintiff was unable to attend the meeting where the tenders were to be discussed and awarded, and subsequently the Plaintiff has been informed that the tenders were not awarded to him due to his absence from such meeting, as per Annexure "E".

5.6 As a result of the unlawful arrest and unlawful detention, the Plaintiff suffered damages in the amount of R730 170 (SEVEN HUNDRED AND THIRTY THOUSAN,DONE HUNDRED AND SEVENTY), where these damages were foreseeable to the members of the SAPS responsible for the unlawful arrest and unlawful detention of the Plaintiff".

In respect of this claim the sum of R730 170 was sought and this amount was awarded by the Court a quo.

3.

Respondent attached a number of quotations to the Particulars of Claim in the name of L + JS Moving and Maintenance Services CC, the customer's name was indicated as being "Bambanani ". These quotes are all dated 4 March 2013 and relate to the service and maintenance of various excavators, trucks and trailers.

On 13 March 2013, Respondent received a note from Moses Mnguni, the managing member of Bambanani Plant Hire and Civils stating that

"regarding our repairs and maintenance contract, that has been accepted.

We would like you to urgently attend our meeting on 13 March 2013 at 15h00 at our premises at Benoni A/ H. We will then give you our urgent schedule and our machinery or breakdown in services".

Having not attended the said meeting as a result of the arrest, Respondent received a letter on 15 March stating "This letter serves to inform you that we are disappointed that you did not attend this meeting as planned for the last few weeks, we are now forced to give our repairs and maintenance contract to another company".

4.

What is immediately noticeable from Respondent's second claim as formulated is that no allegations are made relating to a legal duty on any particular police officer to release the Respondent so that he could attend a meeting and finalize contractual and/ or financial arrangements so as to avoid any financial loss. There is also no allegation that a breach of such legal duty occurred, who had breached it, and that this was wrongful. It was merely pleaded that he could not attend the meeting as a result of the unlawful arrest and unlawful detention. It was also not pleaded on which basis the damages sought here foreseeable by the members of the South African Police Service.

5.

In the judgment of the Court a quo the present facts were distinguished from those in Minister of Safety and Security v Scott 2014 (6) SA 1 SCA, and it was accepted the only factor that stood between the Plaintiff and awarding of the work as quoted for, and the financial benefits that would have accrued therefrom, was the arrest and detention of the Plaintiff. It was also held by the Court a quo that Defendant should have foreseen the consequences for the Plaintiff and should have acted to prevent such damages from accruing.

6.

Before dealing with the cause of action which Plaintiff's Counsel in Court described as a claim ... "for economic loss", it is necessary to deal with the actual evidence that was in my view not correctly dealt with and analysed by the Court a quo, nor in fact by the parties' Counsel. Respondent's evidence was that he explained to "police officers" that he has a contract to sign and a meeting to attend. The question of the Court then was: "but they still had to accept the quotation before you sign any contract? - We were such good friends at that stage for me it was just a formality just to go there and just go and do the proper thing. I was pretty sure that I was going to get the job". He was then asked what would have to be discussed at the meeting and replied that it was the maintenance of the machines and how this could be done to avoid possible breakdowns. A contra had not been produced by then, and it still had to be discussed. He was given an opportunity to phone his Attorney, but obviously did not make use of this opportunity to ask him to inform Bambanani that he was unable to attend the meeting.

Under cross-examination the following question and answer appears: "At the premises during your arrest you did not inform Constable Malulani about the meeting that you were supposed to attend? - No". At a later stage he was cross-examined as follows: "What was the meeting going to be about? - To tell me if I can go ahead and do the repairs and give me the go ahead with doing the services and to put it on paper between us which says okay this is an agreement between us.

COURT: Are you saying that the meeting was about them being or that they will accept your quotations? - That is correct yes.

Or that they were to inform you whether they accepted your quotations? - Yes".

At a later stage during cross-examination he testified that he was only told about the meeting on 13 March on that particular morning.

7.

Mr M. Mnguni from Bambanani Plant Hire and Civils gave evidence and this is particularly significant in the light of Respondent's allegation and the Court' s acceptance thereof, that a contract had already been entered into by 13 March. Mr Mnguni testified that the acceptance of the quotation was an agreement between him himself and his partner in the business. As far as Respondent was concerned, the position was that: "If he agreed to the terms of the contract and he would then take a decision whether to sign it or not. And after the signature then we would move forward with the job". He was also asked about the amounts quoted per the written quotes and his reply was the following: "Ja, this was his quotation and the decision was not yet taken. It was to be taken at the meeting". He further added the following: "We are taking a decision to give him work in accordance with terms and conditions with the contract". There was no oral agreement in relation to the quotations, nothing was written down he said, and there was no binding oral agreement in any event.

8.

In my view, the Court a quo materially erred in finding that an agreement had been entered into, and that as a result of the non-attendance it followed that the profits emanating from that agreement had been lost. It is clear from the quotations themselves that they give no detail as to when services had to be performed, at which particular rate, when an invoice would have to be submitted and

paid. There is no mention of the duration of any such contract and how it could be terminated. In my view, the situation is analogous to that in BlundeII v Blom 1950 (2) SA 627 w, OK Bazaars v Bloch 1929 WLD 37 and Lambons (Edms) Bpk v BMW (Suid- Afrika) (Edms) Bpk [1997] ZASCA 51; 1997 (4) SA 141 HHA at 153, wherein reference was made to the dictum of Mullin J in Blundell v Bloch where the following was said: "Those are cases where it was found on investigation of the facts that the parties had negotiated and had come to terms on certain main features of their contract, but had clearly contemplated that there were other points outstanding which would have to be agreed upon between them before a binding contract came into force".

In Pitout v North Cape Live Stock Co-operative ltd 1977 (4) SA 842 (A} Corbett JA said the following at 850 C to D, in the present context: "The question which arises, accordingly, is whether the undertaking, given as it was during the course of uncompleted negotiations, had, or has been shown to have had, contractual force.

Was the undertaking and offer made, animo contrahendi, which upon acceptance would give rise to an enforceable contract, or was it merely a proposal made by the Appellant while the parties were in the process of negotiating and were feeling their way towards a more precise and comprehensive agreement? This is essentially a question to be decided upon the facts of the particular case".

Whether in a particular case the initial agreement acquires contractual force, or not, depends upon the intention of the parties, which is to be gathered from their conduct, the terms of the agreement and the surrounding circumstances.

9.

It is in my view clear from the evidence of Mr Mnguni that the quotations sent and returned would merely have formed the basis of

further negotiations and the signing of an agreement relating to the material rights and obligations of each party. No agreement had been entered into on his evidence, and even on the Respondent's evidence no fixed terms and obligations had been shown in a number of material respects that I have mentioned. One does also not know what Respondent's expenses would have been.

10.

On that basis alone, it is my view that the Court a quo erred in finding that an agreement had been entered into and making an order as a result.

11.

It is also in my view abundantly clear that the Respondent neither properly pleaded, nor was able to prove, a claim based on economic loss in the form of loss of projects, as it was put by his Counsel. No legal duty resting upon the police officer was pleaded, nor do any other elements of such claim appear either in the Particulars of Claim or from the evidence. The whole topic is dealt with in Neethllng- Potgieter-Visser, Law of Delict 7th Edition Lexis Nexis 2015 at p. 305 and further.

To found liability for pure economic loss under certain circumstances, the wrongdoer's conduct must comply with the general delictual

requirements. The element of wrongfulness is important which in the present instance would allegedly lie in the breach of a legal duty to avoid damage. It must be remembered that a general duty to prevent pure economic loss for other persons does not exist; or, in other words, that the factual causing of pure economic loss is not prima facie wrongful.

See: Country Cloud Trading CC v MEC , Department of Infrastructure Development, Gauteng /2014/ ZACC 28 at par. 22.

Consequently, it must be determined in each case whether, according to the circumstances, there was a legal duty to avoid pure economic loss. The yardstick that must be applied in this determination is the general criterion of reasonableness or boni mores. This is made clear in the decision of Minister for Safety and Security (now Minister of Police) v Scott /2014/ 3 ALL SA at 306 (SCA). This criterion requires the Court to exercise "a value judgment embracing all relevant facts and involving considerations of policy". This is usually described as the "policy based aspect" of the "duty of care" concept, by means of which the scope of delictual liability is judicially controlled. The boni mores criterion implies a careful weighing-up of the interests of the parties involved, taking into account the public interest.

It must at the very least be shown that the Defendant knew or subjectively foresaw that his intentional or negligent conduct or

omission would cause damage to the Plaintiff. In my view there is no evidence in this regard. At best, the Respondent mentioned that he had to attend a meeting that particular afternoon. It is not even certain to whom this was said. As far as loss is concerned, the Courts would have to consider that any particular situation could lead to indeterminate liability, or is "one fraught with overwhelming potential liability". This applies for example, where the act complained of would probably result in a "multiplicity

of actions" which could be "socially calamitous". In the present instance it is my view that society would not place a legal duty upon the arresting officers. Too wide a liability would be incurred, the extent of which could obviously not even be foreseeable to the arresting officers, particularly on the facts of this case. The Respondent himself did not even know what the material terms of -the contract were, or would be, and imposing liability on the police on the present facts is not justified by considerations of public policy, nor by the facts.

12.

In my view, the Court a quo erred in distinguishing the decision of Minister of Safety and Security v Scott supra. The question of remoteness of damages is an important one, especially on the present facts, and there is no sound reason to impose liability on the loss of contractual income and profits onto the police in relation to contract the details of which they were unaware of, and could not have been aware of.

13.

The particular loss relied upon herein was certainly not foreseeable in any event, and claim 2 ought not to have been granted. Claim 2, as pleaded, in any event does not draw the distinction between an unlawful arrest and unlawful detention which was claim 1, and a possible breach of a legal duty to release a person on the basis that he would suffer economic loss by being unable to attend a particular meeting on the day of the arrest. Even on that account alone, claim 2 should have failed.

The result of the above is the following:

1. The appeal in respect of claim 2 is upheld with costs;

2. The order made by the Court a quo is set aside and it its place, the following order is made:

Claim 2 is dismissed with costs.

JUDGE H.J FABRICIUS

JUDGE OF THE GAUTENG HIGH COURT, PRETORIA

I Agree

JUDGE N. MNGQIBISA-THUSI

I Agree

JUDGE V.V THLAPI