Molala v Minister of Police and Another (2258/2018) [2024] ZANWHC 138 (12 June 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO : 2258/2018

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates:

YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

SOLLY MOLALA

PLAINTIFF

And

MINISTER OF POLICE

1st DEFENDANT

NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS

2ND DEFENDANT

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 12 JUNE 2024 at 11h30.

ORDER

(i) The special pleas are dismissed with costs.

(ii) The defendants are to pay the costs on a party- and party – basis on the High Court scale A, jointly and severally, the one paying the other to be absolved.

(iii) The parties are to liaise with the secretary of the Office of Judge Reddy for the arrangement of a trial date within ten (10) days of this order.

JUDGMENT

Introduction

[1] On 16 April 2014, the defendants’ special pleas were dismissed, with the defendants being ordered to pay the costs jointly and severally, the one paying the other to be absolved. On 26 April 2024 a request for reasons in terms of Rule 49(1) (c) of the Uniform Rules of Court, (“the Rules”) was filed at the Office of the Registrar. This request made its way to me

on 20 May 2024.What follows is my response to this request.

Parties

[2] The plaintiff is Mr Solly Molala. The first defendant is the Minister of Police, for the Republic of South Africa, cited in an official capacity as contemplated in section 2 of the State Liability Act, 20 of 1957. The second defendant is the National Director of Public Prosecutions cited in an official capacity as head responsible for conducting of criminal proceedings in the Republic. For purposes of convenience the parties will be referred to by the citations in this interlocutory application.

Background facts

[3] On or about 14 August 2015 in Mabopane the plaintiff contended that he was the subject of a warrantless arrest executed by Mr Mahlangu, a member of the South African Police Services, (“the SAPS”). The plaintiff was then escorted to the Terminus Police Station where he was allegedly assaulted for several hours by Mr Mahlangu and other unknown members of the SAPS. Thereafter, the plaintiff was detained at the Kgosi Mmampuru Correctional Facility for seven (7) days.

[4] During August 2015, the first and second defendants’ officers’ wrongfully and maliciously set the law in motion by charging the plaintiff with robbery notwithstanding a statement filed by the complainant which failed to identify the plaintiff as the perpetrator. The absence of a proper identification of the plaintiff resulted in the defendants having no reasonable or probable cause the charging the plaintiff, so the plaintiff averred. As a direct consequence of the first defendant’s conduct the plaintiff was arrested. The second defendant prosecuted the plaintiff on an allegation of robbery at the Ga-Rankuwa Magistrates Court. On 21 May 2018, the plaintiff was found not guilty and discharged by virtue of the application of the provisions of section 174 of the Criminal Procedure Act 51 of 1977, (“the CPA”). The plaintiff contends that he had spent six (6) months in custody owing to the actions of the first defendant.

[5] Arising from these succinct facts the plaintiff instituted two claims. In respect of Claim A the plaintiff contended that he suffered loss in the amount R 1 500 000.00, which comprised a claim for unlawful arrest and detention in the sum of R 750 000.00 coupled with a claim for inhuman treatment and emotional shock in the sum of R750 000.00. In respect of Claim B , the plaintiff contended that he suffered loss in the sum of R 1 650 000.00 made up of legal expenses incurred in the sum of R 50 000.00,damages for contumelia in the sum of R800 000.00, deprivation of freedom and discomfort in the sum of R800 000.00.

[6] The action was defended. The defendants raised three(3) special pleas which formed the nucleus of the interlocutory hearing which will be delineated below. The defendants pleaded over that the plaintiff had been lawfully arrested and detained as justified by the provisions of section 40(1)(e) of the CPA. Further, no assault had been perpetuated against the person of the plaintiff and that the plaintiff had made his first appearance before court within forty-eight (48) hours as prescribed by section 50(1) (iii) of the CPA.

First Special plea:

[7] The defendant asserted that the plaintiff at all relevant times knew or ought to have known that the defendant is an organ of State as defined in section 1 of the Institution of Legal Proceedings Against Certain Organs of the State Act 40 of 2002, (“the Act”). In accordance with this Act, the plaintiff was required to give notice in writing to the defendant of his intended action within six (6) months from the date the debt became due. The cause of action arose on 14 August 2015. This six (6) month timeframe that is prescribed by the Act the defendant contended expired on 14 February 2016. The plaintiff served the peremptory notice on 31 May 2018. Given these timelines, the defendant asserted that the plaintiff had failed to comply with section (1) of the Act. The absence of the delivery of a timeous notice disentitles the plaintiff from instituting any legal proceedings against the defendant so the contention ran.

Second Special Pleas: Prescription

[8] This special plea is regulated by section 12(1) of the Prescription Act 86 of 1969. The defendants reassert the common cause dates that underpin this plea of prescription. The plaintiff was arrested on 14 August 2016. Summons commencing this action was issued on 24 October 2018 and served on the defendant on 31 October 2018. The plaintiff was arrested on 14 August 2015 and knew who the debtor was. A simple calculation according to the defendant on the timelines set out indicate that the plaintiffs claim prescribed 14 October 2018.

The special plea of non-joinder

[9] In oral argument Advocate Makamu abandoned this plea. Resultantly this special plea was not deserving of any further attention.

Discussion

[10] Given the chronicled matrix that has been set out, the remaining special pleas can be disposed of in toto. I find abstruse to understand submissions made by Advocate Makamu for the defendant. The reasoning that underpinned this will become apparent later. The plaintiff in his particulars of claim contended that he was arrested on 14 August 2015. The defendant contended that the date of arrest was 13 August 2015, not much turned on this dispute of fact so far as it related to this interlocutory hearing.

[11] Advocate Makamu submitted that the plaintiff was released on bail on 25 August 2015. This submission is not structured on the pleadings. The law on pleadings is trite. Moreover the date of 25 August 2015 was a material date in the defendants timeline . Our jurisprudence is replete with authorities that underscore the importance of pleadings.

[12] North West Salt Co Ltd v Electrolytic Alkali Co Ltd (1913) 3 KB 422 at 425, CA where the following was stated:

“If a party relies on a fact, and will fail in his claim or defence unless at the trial that fact is proved, that fact will be a ‘material fact’ or ‘factum probandum.’ However, where the fact relied on is such that if the party fails to prove it at the trial he may nevertheless succeed on his claim or defence, that fact will in general not be a material fact, but only evidence of a material fact. Facts of this kind are known as ‘facta probantia’ and should not be pleaded.”

[13] The term “material fact” as stated in the North Western Salt case was adopted in the case of McKenzie v Farmer’s Co-operative Meat Industries Ltd 1922 AD 16 at 22 in the following terms:

“… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

[14] The purpose of the pleadings was echoed in Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 108D-E as follows:

“In support of this contention counsel referred to inter alia Shill v Milner 1937 AD 101 at 105 and Marine & Trade Insurance Co Ltd v Van der Schyff 1972(1) SA 26(A) at 44D - 45E. Both these decisions cite an earlier

one of this court, Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 in which at 198 it was said: ‘The object of pleading is to define the issues; and parties will be kept strictly to their pleas

where any departure would cause prejudice or would prevent full enquiry. But within those limits the Court has a wide discretion. For pleadings are made for the Court, not the Court for pleadings. And where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been." Also see: Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433.

[15] The case for the defendant is not that the plaintiff was released on bail on 25 August 2015, which in the overall scheme may have been decisive in the computation of the various time limits. This is more so when considering the plaintiff’s cause of action was that he was detained for six (6) months before being released.

[16] Advocate Makamu was of the view that the operative date would be the date that the plaintiff was released on bail namely the 25 August 2015. This computation of the various timelines that formed the centre of the time limits for the remaining special pleas began to run on this date. This was ill-contrived when considered in isolation. The computation of the timelines in so far as it relates to the section 3 notice in terms of the Act became even more muddled when the special plea is juxtaposed with the oral argument of the defendant.

[17] Advocate Makamu submitted that the plaintiff was not barred from instituting of the civil action for unlawful arrest and detention , while the criminal proceedings where the plaintiff featured as accused were incomplete. Put differently, the civil action and the criminal proceedings resulting from identical facts could run contemporaneously. To this end, Advocate Makamu continued that if the criminal proceedings concluded with the conviction or acquittal of the plaintiff, it would have no bearing on the civil action. This is simply beyond reason. From my perspective, the decisive date would be 21 May 2018, when the plaintiff was found not guilty and discharged by way of the application of section 174 of the CPA. On 31 May 2018, the plaintiff directed a Notice in terms of section 3 of the Act notifying the Minister of Police of the plaintiff’s intention

to institute action for the unlawful arrest and detention, contumelia as a result of the unlawful arrest and detention, inhumane treatment, emotional shock consequent to the arrest and for the “unlawful

prosecution”. On the face of the notice, it appears to have complied with the mandatory timeline of six (6) months within which it is to be delivered. Thereafter the summons commencing this action was issued on 24 October 2018 and served on the defendant on 31 October 2018.

[18] The remaining special pleas are without merit. What Advocate Makamu completely ignored was whether in terms of the amended particulars of claim which joined the second defendant, a proper notice in terms of section 3 of the Act was peremptory. Of particular significance was the service of the notice in terms of section 3 of the Act on only the Minister of Police was adequate. In fairness this was not the special plea raised before this Court. It would be probably prudent for the defendant to revisit section 3 of the Act.

[19] Regarding costs, there was no reason to deviate from the usual order, that costs follow the result. This action has been traipsing through the corridors of this Court for an inordinate time. It is evident that the defendants have no will have the action ventilated. It is for this purpose that this action must be “trial managed”. This speaks to the ethos of the Judge President’s mandate on the disposal of all matters, both in the criminal and civil process.

Order

[20] Consequently the following order was made, which now included the management of the trial, in the absence of a potential appeal.

(iii) The parties are to liaise with the secretary of the Office of Judge Reddy for the arrangement of a trial date within ten (10) days of this order.

A REDDY

JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

Counsel For Plaintiff: Advocate P.A Mabilo Attorneys For Plaintiff: Steven Magoro Attorneys C/O Motshabi & Associates 12 Havenga Street Goldview Email Address: info@stevenmagoroattorneys.co.za Mahikeng Counsel For Defendant : Advocate M. Makamu Attorneys For The Defendant: The State Attorneys Email address: ONdabeni@justice.gov.za Megacity Complex East Gallery 3139 Sekame Road Mmabatho Date Of Hearing: 16 April 2024 Date Of Judgment: 16 April 2024 Date Of Request For Reasons: 20 April 2024 Date Request for ForReasons Received : 20 May 2024 Date Reasons Handed Down : 12 June 2024