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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

(1)   REPORTABLE:  NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED. 

 

	CASE NO: 57928/2013
In the matter between:
LEVHUWANI MAQADONI	PLAINTIFF
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS	DEFENDANT

 

JUDGMENT

 

MADIBA AJ

INTRODUCTION

[1]  The plaintiff instituted an action for damages against the defendant in its capacity as the official responsible for all acts and omissions by prosecutors.  He claimed that he was unlawfully and unnecessarily deprived of his freedom and suffered loss of amenities of life due to his detention from 19 October 2011 until 26 October 2011.  As a result of the defendant’s omission, the plaintiff alleged that he suffered damages in the sum of two hundred thousand rand (R200 000.00).

 

[2]  A claim by the plaintiff for unlawful arrest and detention against the South African Police Services was settled. 

 

[3]  The basis of the defendant’s defence is that the plaintiff failed to establish a case for damages as contained in his particulars of claim.  It is argued by the defendant that the plaintiff’s evidence does not support his cause of action as pleaded by him.  Consequently, the plaintiff’s claim is to be dismissed with costs.

 

FACTUAL BACKGROUND

 

[4]  An armed robbery was committed at the house of Mr. Amit Hira on 15 October 2011 in Lenasia.  The robbers were driving in a blue Chevrolet Aveo.

 

[5]  Inspector Madhava, a member of the South African Police Service stationed at Lenasia police station detective branch was assigned to investigate the robbery case of Mr. Amit Hira.  His investigations led him to a house at 224 Fitz Patrick Grobler Park Roodepoort.  Inspector Madhava found a blue Chevrolet Aveo with registration numbers RBM 780 GP.  The owner of the said vehicle was informed that he was investigating a case of robbery where a description of the vehicle used matched his vehicle.  Mr. Tshamano Ronald Maqadani told inspector Madhava that on the day of the alleged robbery, he attended a funeral at Potgietersrus and he left his car behind at his home in Roodepoort.

[6]  Mr. Levhuwani Maqadani (the plaintiff) who was present confirmed that on the alleged day of the robbery, he was the one who used the blue Chevrolet Aveo RBM 780 GP belonging to his father.  Inspector Madhava impounded the blue Chevrolet Aveo and took it to Lenasia police station.

 

[7]  Mr. Amit Hira was contacted on 17 October 2011 to come to Lenasia police station to identify the vehicle as to whether it was the one used by the robbers at his place of abode.  Mr. Amit Hira confirmed that it was the vehicle used by the people who robbed them.  He identified the said vehicle by the following features: - the colour, make, tinted windows and stickers or ornaments resembling animals such as monkeys.  These stickers / ornaments were at the back window of the vehicle in question.

 

[8]  Mr. Levhuwani Maqadani was arrested on 17 October 2011 as the suspect in the robbery case.  He appeared in court on 19 October 2011.  His case was postponed to 26 October 2011 for a formal bail hearing.  Charges of robbery were withdrawn against him on 26 October 2011.

 

[9]  He claims damages for loss of amenities of life and deprivation of freedom against the national Director of Public Prosecutions in this matter.  The issue to be determined is whether the omission of the prosecution to consider plaintiff’s address contained in the docket resulted in the plaintiff sustaining damages.

 

PLAINTIFF’S TESTIMONY

 

[10]       He was taken to court on 19 October 2011 in a police van seated at the back while handcuffed.  The court postponed his case to 26 October 2011 without giving reasons.

[11]       He enquired from the police officer who took his statement why he was remanded and the police officer failed to give any explanation.  The plaintiff was unrepresented in court.  He was further detained at Lenasia police station.  The contention by the plaintiff was that the conditions in the police cells were horrible. He was made to sleep with dirty and blood stained blankets. The food was so bad that he refused to eat and relied on the food brought by his family members.

 

[12]       On 26 October 2011 the plaintiff was taken to court.   His matter was again remanded to an unknown date without any reasons furnished.  He was taken to the court’s holding cells.  While in the court’s holding cells, the plaintiff’s family lawyer consulted with him thereafter his case was recalled.  The charge against him was withdrawn and he was released.

 

[13]       At the time of his arrest, the plaintiff was a second year tourism student preparing for his examinations and had lived at his parent’s house since 2008.  Counsel for the plaintiff requested him to describe the Chevrolet vehicle he used on the alleged day of the robbery.  His description of the said vehicle was as follows: that it was a blue Chevrolet Aveo and different to a standard Chevrolet Aveo.  Its windows were slightly tinted and it had mag rim wheels.  Teddy bear tokens / stickers from Vodacom were hanging from the back of its window.

 

[14]       The plaintiff further testified that when questioned about his whereabouts on the alleged date of the robbery, he said he went to Oriental Plaza with his girlfriend and bought a television set.  As it was for the first time he owned a television, he and his girlfriend went out to McDonalds and later to a tavern and celebrated.

 

[15]       He was referred to page 61 of a document contained in the bundle “Index Discovery.”  The documents therein were admitted on record as exhibit “B”.  The documents at page 61 of exhibit “B” depict the plaintiff’s details including the date of his arrest for a charge of house robbery.

 

[16]       When asked if the plaintiff knew what the reasons were for his arrest, his response was that he was only told at Lenasia police station that it was for house robbery.  His counsel referred the plaintiff to his statement appearing on page 49 of exhibit “B” and asked for his comment.  For the record, the plaintiff’s statement contained his details and reads as follows under paragraph 2: - “I have duly been informed by no 7006459-5 rank D/Sgt full names: Michael Mathibe of my right and I would like to state the following concerning the allegations against me. I deny any allegations against me of house robbery that happened at Lenasia. I was with my girlfriend at Kagiso.  That day I never drove out of Roodepoort and Kagiso.  That’s all I wish to state”. 

Signed by the suspect and the police officer.

 

[17]       The plaintiff denied the contents of his statement and said that he told the police officer that he went to Oriental Plaza with his girlfriend.  He only signed the statement in order to get out of jail, he did not read it, and he overlooked the details.  The reason why the plaintiff was suing the prosecution is because he was unnecessarily detained from 19 to 26 October 2011 in horrible conditions in the police cells.  He was subjected to an identity parade which was a torturous experience and was not identified as the robber.

 

[18]       Reference was made to page 71- a letter of demand in terms of Section 3 (2) of Act 40 of 2000 from O.A de Meyer Attorneys who represented the plaintiff.  The plaintiff was specifically referred to paragraph 4 thereof.  It reads as follows: “On the 19^th of October 2011 the case was remanded for reasons unknown to our client.  He was never asked to plead and never given opportunity to apply for bail”.

 

[19]       It was enquired from the plaintiff as to whether the reasons for the withdrawal of charges against him were explained. He responded in the negative.  His attention was further drawn to page 80 of exhibit “B” which is an investigation Diary of the South African Police Services.  He was requested by his counsel to comment on what appeared on page 80 under the date: 2011/10/26.  According to the plaintiff, the contents thereof were never explained to him. 

 

[20]       An entry on the investigation Diary – page 80 of stated the following: - “I am withdrawing this case for the following reasons: -

1)            The suspect raised an alibi which is supported by A7 and A10.

2)            The witnesses in the id parade specifically excluded the suspect as one of the perpetrators.

3)            It is of any relevance one possibly get S. 105 evidence i.e cell phone of the suspect and the girlfriend (A7) to see if story is objectively proven = until then we do not have a reasonable prospect of a successful prosecution.

4)            Comply with the above-signed and stamped by Senior public Prosecutor.

 

[21]       The plaintiff concluded his evidence by saying once again that he was traumatized and never thought he will one day be detained.

CROSS EXAMINATION OF THE PLAINTIFF

 

[22]       The plaintiff confirmed under cross examination that he instituted a claim for damages against the South African Police Services for unlawful arrest and the matter was settled.  He was asked to explain why he is claiming damages against the defendant.  The reason was that he wanted closure for his detention from 19 until 26 October 2011.  The defendant’s counsel wanted to know why he wanted closure from the defendant. He answered by saying that he was traumatized by his detention. 

 

[23]       The plaintiff was referred to paragraphs 4, 5, 6 and 7 in the pleadings titled Index Pleadings - marked Exhibit “A”.  The document referred aforementioned is the plaintiff’s particulars of claim and it contains the following details: -The plaintiff’s particulars of claim in paragraph 4, 5, 6, and 7 states that: -

Paragraph 4 thereof

The abovementioned arrest was unlawful. The plaintiff was brought to court on the 19^th October 2011 for his court appearance.

Paragraph 5 thereof

The matter was remanded on the 19^th October 2011 to the 26 October 2011 for confirmation of the plaintiff’s address despite:-

5.1        the fact that the plaintiff’s address appeared in the docket;

5.2       the arrest occurred at the plaintiff’s address where at that stage the plaintiff lived for 14 years and is still living;

Paragraph 6 thereof

The prosecutor omitted to avail him/herself of these facts that could reasonably be expected for a prosecutor.

 

Paragraph 7 thereof

The plaintiff was therefore unlawfully and unreasonably deprived of his freedom from the 19^th October 2011 until the 26^th October 2011 when the charges brought against him were withdrawn.

 

[24]       It was put to him that according to paragraph 5 of his particulars of claim the reason why his case was postponed to 26 October 2011 was for the confirmation of his address. He agreed with the contents thereof.  Subsequently, the plaintiff was asked if counsel for the defendant was correct to say that the basis of the plaintiff’s claim lies on paragraphs 5, 6 and 7.  His view and understanding was that it was correct.

 

[25]       The plaintiff was further requested to explain the contradictions in paragraph 5 of his particulars of claim and his testimony that the reasons for remanding his case on 19 October 2011 until 26 October 2011 were not explained to him therefore unknown.  No answer was provided by him.  When it was put to him that he could not reconcile the contents of paragraphs 5, 6 and 7 of his particulars of claim and the letter of demand from his attorney O.A De Meyer, he conceded that he could not do so.

 

[26]       The plaintiff’s attention was drawn to exhibit “B” page 78 – particulars of Investigation / Enquiry – where the prosecution enlisted the reasons for remanding the case.  It is apparent from page 78 that it is in fact the prosecution‘s instructions to the investigating officer about plaintiff’s case.  An entry dated 2011/10/19 – SPP reflects: -

1)    Docket to court for first appearance

 

2)    For investigations

 

3)    I/O to send 192s to war room

 

4)    Suspect’s profile

 

Signed by the SPP.

 

[27]       Appearing on the same page 78 – under 19/10/2011 I/O, the control prosecutor wrote: -

1)    Please hold id parade as soon as possible.

2)    Obtain statements from A1’s mother and father.

3)    Trace o/s suspects.

4)    Any other members? Please obtain the statements.

5)    Obtain statements from Mavis the suspect’s mother regarding the information as per A5.

6)    Obtain Sap 69’s.

7)    Trace stolen items.

Signed by the control prosecutor who attached her stamp dated 19 October 2011.

 

Below the control prosecutor’s signature and stamp, is another entry by a different prosecutor under the following:-

 

8)    Remanded 26/10/2011 FBA; which it was explained during the hearing that it stands for Formal Bail Application.

9)    Ensure a proper ID parade is done.

10) Prepare for FBA verify previous convictions, verify address.

11) Trial to be done in court (1).

 

[28]       It was put to the plaintiff that the prosecutor will testify that what is contained on page 78 are reasons why the case was remanded. The case against the plaintiff was postponed for further investigation and the prosecutor will confirm in her testimony.  The defendant concluded its cross examination on that note.

 

RE EXAMINATION BY PLAINTIFF’S COUNSEL

 

[29]       The plaintiff was referred to page 78 of exhibit “B”- Particulars of investigation / Enquiry and informed that the entries were not written by the same person.  He confirmed that was true.  He was asked to confirm that there are actually eleven reasons for the postponement of his case as stipulated therein and answered in the positive.  Nothing further emanated from re-examination.

 

[30]       The plaintiff’s counsel indicated that an application for the amendment of the plaintiff’s particulars of claim in terms of Rule 28 (10) of the Uniform Rules of Court will be instituted.  She later abandoned the amendment application she intended pursuing.

 

DEFENDANT’S EVIDENCE

 

[31]       The control Public Prosecutor (Tertia Wagenaar) was called to testify on behalf of the defendant.  She confirmed that she was indeed the prosecutor who dealt with the docket of the plaintiff on the 19 October 2011 when the plaintiff first appeared in court.  Among her duties was to see it to that the case was ready to be dealt with in court during the plaintiff’s first appearance.  She would remand the case in the event she held the view that further investigations were necessary.  Her next step was to instruct the prosecutor in court that day to postpone the case for further investigation and request the investigating officer to gather more information as she deemed necessary. The instructions would be written in the docket.

 

[32]       On the basis of the information contained in the docket on the 19 October 2011, Tertia Wagenaar (control prosecutor) decided to enroll the matter and charge the plaintiff with robbery with aggravating circumstances in terms of schedule 6 of Criminal Procedure Act of 1977 as amended.

 

[33]       Schedule 6 provides that an accused has to appear in court for bail application and satisfy the court that exceptional circumstances exists which permits his release on bail.

 

[34]       On 19 October 2011, the prosecutor postponed the plaintiff’s case for further investigations in terms of Section 50 (6) of the Criminal Procedure Act until 26 October 2011 and supplemented the control prosecutor’s instructions to the investigating officer for investigations.  Section 50 (6) (d) provides that the court is empowered to postpone bail application for a period not exceeding seven days at a time.  The prosecutor has to inform the court why a matter is to be postponed in terms of Section 50(6) (d). Such a postponement is not there for the taking. He added further instructions to be investigated.

 

[35]       The control prosecutor’s instructions appears on page 78 of exhibit “B” reflected under – 19/10/2011 i/o numbered from 1 to 7, while the other prosecutor who dealt with the postponement in court, his instructions are numbered from 8 until 11 just below control prosecutor’s signature and stamp.

 

[36]       Tertia Wagenaar testified that there is nothing untoward for another prosecutor to supplement her instructions on the docket.  Both instructions from the prosecutors involved, would be for the investigating officer to carry out.  The control prosecutor was requested to clarify why the plaintiff’s case was postponed to 26 October 2011. According to her, the case was remanded for further investigations and not solely for the verification of the plaintiff’s address.

 

[37]       Since the plaintiff was charged with a schedule six offence, he had to lodge a formal bail application and prove that there are exceptional circumstances that entitled his release on bail.  She reiterated, in conclusion, that the state had a prima facie case against the plaintiff and schedule six processes had to be followed and the case was thus postponed for further investigations.

 

CROSS EXAMINATION OF THE CONTROL PROSECUTOR

 

[38]       It was put to the control prosecutor that before anyone can be detained; there must be a good reason to do so. The prosecutor is to consider whether the probabilities are such that the suspect may be guilty. Her view was that in the plaintiff’s case, she did have enough evidence to enroll the matter.

 

[39]       The description of the vehicle by the victim of the house robbery, matched the vehicle used by the plaintiff on the day of robbery and as such, she was of the view that there was a prima facie case against the plaintiff and decided to charge him.

 

[40]       The plaintiff’s counsel asked her if it were correct that any suspect arrested should be detained and his matter postponed.  She responded that it was not necessarily the case. The plaintiff’s matter was postponed for further investigations and for a formal bail application as it was a schedule 6 offence. 

 

[41]       The court would explain the accused’s rights for bail proceedings under schedule 6 offence.

 

[42]       It was indicated to the control prosecutor that Section 50 provides that a case is to be postponed to verify the accused’s identity and confirmation of his address.   That the prosecutor in court and the magistrate failed to explain to the plaintiff his rights to apply for bail and the reasons why his case was remanded. 

 

[43]       She denied that the purpose of Section 50 caters for a remand for verification and confirmation of the accused’s identity and address. As to what transpired in court on the 19 October 2011, she cannot testify thereto as she was not in court.  She however said that according to the procedure in courts, the accused will be informed of his rights to bail and reasons for a remand by the court.  The prosecutor is the one who would apply to the court for a postponement and state the reasons for doing so.  It is not for the prosecutor to explain rights for a bail application to the accused.

 

[44]       The prosecutor was referred to page 106 of exhibit “B” – Investigation Diary – and pointed out the description of the vehicle used by the robbers as described by the victim, differs with that on page 106.  The contents of page 106 reads as follows: – 11.15 (1) F.T.C as per A₁ Get away vehicle is believed to be a blue Chevrolet Aveo.  Security officials assessed that they previously (few weeks ago) chased such a vehicle with Reg. RBM 780 GP. Vehicle was tested via Soweto PES and came out negative belonging to someone in Roodepoort.

 

[45]       Tertia Wagenaar (control prosecutor) pointed out that the entry on the Investigation Diary was made on the 15 October 2011 whereas the identification of the said vehicle was done on the 17 October 2011 by the victim of the robbery who attested to a statement regarding the robbery incident.  She maintained that based on the information in the docket and the victim’s identification of the vehicle matching the description of the one used by the robbers at his home, she decided to charge the plaintiff.  Bail could not be fixed on the 19 October 2011 as the charge fell under schedule 6 and further investigations were necessary.

 

[46]       It was put to her that the plaintiff’s address was on the docket and that the plaintiff lived at that address for the past fourteen (14) years and further that it was not necessary to remand the matter for verification of the address.  Her response was that she could not have known then that plaintiff lived for fourteen (14) years on that particular address. She stated that verification and confirmation of his address among other investigations was necessary.  Her position on the matter was that she had a prima facie case against the plaintiff and required further information.

 

[47]       Counsel for the plaintiff put it to her that the plaintiff’s alibi was already in the docket when she perused it for the first time. She did not agree and said the plaintiff’s mother made a statement that the plaintiff is the one who was using her husband’s blue Chevrolet Aveo on the day of the alleged robbery.  In any event the plaintiff denied the contents of his own statement contained on page 106 relating to his whereabouts on the day of the robbery.

 

[48]       An identification parade which was held on the 23 October 2011 failed to point out the plaintiff as the perpetrator of the robbery. The control prosecutor was asked why based on this information; the plaintiff was not immediately released.  She only became aware of the results of the identification parade’s results on 26 October 2011 when the docket was brought to court by the investigating officer and could therefore not have acted before she received it. 

[49]       Tertia Wagenaar insisted that she charged the plaintiff on 19 October 2011 as she had enough evidence to formulate a prima facie case against the plaintiff.  Other information and documents only became available on 26 October 2011 and as a result thereof, charges against the plaintiff were withdrawn.  In her view, it was not possible to release or grant the plaintiff bail on 19 October 2011 as she then had enough prima facie evidence to proffer charges against him.

 

ADDRESS BY PLAINTIFF AND DEFENDANT’S COUNSEL

 

[50]       Both counsel submitted heads of argument which became very helpful to the court and the court is indebted to them.  The contention by the plaintiff’s counsel is that the plaintiff’s version was not disputed and as such the defendant’s case should be dismissed.  It was argued on behalf of the plaintiff that it is apparent that the case was remanded on the 19 October 2011 for the verification of the plaintiff’s address despite his address being reflected on the case docket.  The submission was supported by the provisions of Section 50 of the Criminal Procedure Act which provides that a case may be postponed for the identification of the accused’s address. 

 

[51]       In my view it is not correct that the plaintiff’s version was not challenged.  The Plaintiff’s version on the events of the 19 October 2011 is that the case against him was remanded until the 26 October 2011 without any explanation given to him.          

 

[52]       Neither the prosecutor nor the presiding officer explained the plaintiff rights to bail. In the same breath, he stated that verification of his address was the reason for the remand and one wonders who told him about the postponement date and the reason thereof. 

 

[53]       The plaintiff’s reliance on page 78 of exhibits “B” that the reasons for a remand as contained therein was for the verification of his address is not helpful to his cause. There are other reasons (ten) why the matter was remanded but the plaintiff chose to be selective and conveniently forgot that no explanation was given for the remand. 

 

[54]       As to why he chose to disavow the averments in his particulars of claim and a letter of demand from his attorneys, remains a mystery as he could not tender any plausible explanation thereto. 

 

[55]       With the greatest of respect to plaintiff’s counsel, Section 50 provides for a procedure after arrest.  Section 50 (1) (b) stipulates that an accused detained shall as soon as reasonably possible, be informed of his right to institute a bail proceeding.  In terms of Section 50 (6) (d) the court may postpone any bail proceedings or bail application to any date or court for a period not exceeding seven days at a time, on the terms which the court deem proper and which are not inconsistent with any provision of this Act if: -

i)             The court is of the opinion that it has insufficient information or evidence at its disposal to reach a decision on the bail application;

ii)            It appears to the court that it is necessary to provide the state with reasonable opportunity to procure material evidence that may be lost if bail is granted, or perform the functions referred to in Section 37 of the CPA or it appears to the court that it is necessary in the interest of justice to do so.

 

[56]       Nowhere is it provided that the purpose of Section 50 is specifically for the identification of the accused’s address as submitted by the plaintiff’s counsel.  For completeness sake, Section 50 (6) (a) provides: - “At his first appearance in court, a person contemplated in subsection 1 (a) who: -

i)             was arrested for allegedly committing an offence shall, subject to this

subsection and section 60: -

aa)      be informed by the court (emphasize added) of the reasons for his / her further detention; or

bb)      be charged and be entitled to apply to be released on bail and if the accused is not so charged or informed of the reasons for his / her further detention he or she shall be released.”

 

[57]       It is clear from the reading of Section 50 (6) (a) that it is the court which is vested with the authority to inform the accused of his right to apply for bail and to inform the accused why his further detention is necessary.

 

[58]       The accused cannot therefore be detained any further without the knowledge and intervention of the court. An inference can be drawn in my view, that the reasons for the plaintiff’s further detention were explained to him by the court. How does one explain the knowledge of the reasons of a remand and the date of his next appearance if not explained?

 

[59]       I find that the court did inform the plaintiff as to why it was necessary for his further detention.  The plaintiff albeit not in so clear terms, stated that the matter was indeed postponed for verification of his address which he on the hand alleged that he did not know the reasons for a remand. 

 

[60]       When requested to reconcile his versions by the defence, the plaintiff could not do so. In fact, the plaintiff conceded that he is unable to reconcile his versions which are mutually destructive. 

 

[61]       It is further provided in Section 50 (6) (c) that the bail application of an accused charged with a schedule 6 offence must be considered by a magistrate court.  The prosecutor could not under the circumstances of the case, in my view have considered the bail on her own. My finding is that the plaintiff’s version was challenged in this matter. 

 

[62]       The plaintiff’s counsel argued that the control prosecutor was a poor witness, argumentative and relied on assumptions. She was defensive and condescending when answering or rather not answering questions put to her.  The submission made is that her evidence is of no consequence and it should be dismissed. 

 

[63]       My observation of the witness was that she answered questions honestly under trying circumstances as she was repeatedly interrupted without even completing a sentence.  The court had to intervene as the proceedings were turning into an argument contest. 

 

[64]       The submissions that it was upon the prosecutor to inform the plaintiff of his rights and reasons of the remand is contrary to the procedure relating to bail application under schedule 6.  The final decision as to whether bail is to be granted or a remand as requested by the prosecutor under schedule 6 offence rests with the presiding officer. 

 

[65]       The role of the court in bail applications is investigative and inquisitorial. What happened in court on 19 October 2011 during the plaintiff’s appearance remains a “mystery”.  The plaintiff’s testimony and his averments made on paper further throws the cat among the pigeons.  It is rather strange for the plaintiff to have appeared in court on 19 October 2011, nothing was explained to him and ultimately he was in a position to know the remand date and reasons for such a postponement. A police officer who obtained the plaintiff’s statement did not also know why the case was remanded according to the plaintiff. I did however rule that the plaintiff’s rights were indeed explained to him. 

 

[66]       The contention that the reasons for the remand as per the control prosecutor in casu, were enough to have been conducted after the plaintiff was granted bail is of no moment herein. Schedule 6 charges proffered against the plaintiff required the magistrate to consider bail. The case was not ready according to the prosecutor as it needed to be further investigated. 

 

[67]       It is not expected of the plaintiff to all of a sudden seek pilgrimage on the reasons for a postponement by the prosecution as he literally stated that no reasons were furnished to him.  It is my view that the submission made is at odds with the plaintiff’s testimony. 

 

[68]       I do not agree with the contention that the prosecutor played no role after her decision to charge the plaintiff was taken.  The record shows that she requested further investigations and gave the investigating officer specific instructions to carry out in relation to the case at hand.  After the investigations were completed, based on the results thereof, she took the decision to withdraw the charges against the plaintiff. 

 

[69]       I therefore hold the view that the prosecutor cannot be faltered under the circumstances.  The defendant’s case is simply that the plaintiff pleaded a particular cause of action and has failed to prove his claim.  When confronted as to why the plaintiff was instituting a damage claim against the defendant, his response was that he wanted closure. 

 

[70]       The defendant submitted that instead of the plaintiff providing evidence to support the basis of his averment in terms of his particulars of claim, he decided to provide testimony contrary to the said averments.  As aforementioned, the basis of the plaintiff’s claim are the averments contained in paragraph 5, 6, and 7 of his particulars of claim. 

 

[71]       The defendant’s counsel argued that the plaintiff’s cause of action is not whether the prosecutor should have released the plaintiff on bail, or whether he should have remanded him for a shorter period.       His contention is basically that the prosecutor failed to establish the fact that the plaintiff’s address appeared in the docket.  The prosecutor in postponing the case for the verification of the plaintiff’s address unnecessarily deprived him of his freedom and consequently he suffered damages due to his further detention. 

 

[72]       My view is that it could have been a different ball game should the plaintiff have pleaded that the prosecution failed to apply its mind and properly considered the docket, the plaintiff would have not endured the trauma and infringement of his right of freedom caused by his further detention.  To simply aver that the prosecution omitted to avail itself of the facts that plaintiff’s address is in the docket is not good enough. 

 

[73]       It is not unheard of that despite an accused having provided an address or alleged to having resided at a particular homestead, the police would still verify the details provided by the accused.  Sometimes, the place where the accused was arrested at does not necessarily imply that he resides at that particular address. 

 

[74]       The contents of the docket including the warning statement of the plaintiff does not state that the plaintiff has been residing at the place he was arrested at for the past fourteen (14) years to date of the arrest.  Surely it could not have been expected from the prosecution in casu, to have established the allegations aforementioned, in a vacuum. 

 

[75]       The reasons relied upon for the withdrawal of the charges against the plaintiff are:-

a)    That an alibi raised by the plaintiff was established to be true.

b)    That the witnesses in the identity parade excluded the plaintiff as the assailant. It therefore stands to reason that the case was not withdrawn due to the plaintiff’s address having been verified.

 

[76]       The defendant’s version that the plaintiff’s case was postponed for further investigations in my view is not far-fetched. 

 

[77]       It is expected from the plaintiff to stand and fall by his averments as pleaded.  Realising that the shoe was pinching on the other foot, the plaintiff’s counsel submitted during the hearing of the matter, that the defendant should not consider the contents of the particulars of claim as evidence but what is to be regarded as such is the plaintiff’s testimony during the hearing. The reasons why the plaintiff’s counsel intended to amend plaintiff’s particulars of claim during the hearing remains unknown as it was never pursued. 

 

[78]       It is trite law that the parties are not allowed to rely on a dispute not raised in the initial pleadings. The parties are to identify the issues and it is for the court to make a determination on that particular dispute.[1]  It is indeed correct that the pleadings define the issues between the parties and the averments in the pleadings embody evidence. 

 

[79]       The court in Naidoo and Another v Sunker and Others[2] held that: - “If an issue is not cognizable or derivable from these sources, there is little or no scope of reliance on it. It is a fundamental rule of fair civil proceedings that parties… should be appraised of the case which they are required to meet. One of the manifestation of the rule is that he who [assets] … must… formulate his case sufficiently clearly so as to indicate what he is relying on”. 

 

[80]       The rules governing the court process serve an important purpose and cannot be disregarded.  It is said that the rules exist for the courts and not the court for the rules[3]. 

 

[81]       I accordingly hold the view that the plaintiff cannot be allowed to only rely on his contrary testimony during the hearing in disregard to what he pleaded in his papers initially.

 

[82]       The onus rests upon the plaintiff to establish his case on a balance of probabilities.  He has to prove that the prosecution’s omission to avail itself of the facts pertaining to his address as contained in the docket resulted in him suffering damages.  My finding is that the plaintiff failed to prove its case as pleaded in these matter.  Accordingly, the plaintiff’s claim stands to be dismissed.

 

COSTS

 

[83]       The issue whether to award costs is premised on two basic rules namely[4]:

a)    That the award of costs is a matter of a judicial discretion by the court;

 

b)    That the successful party should as a general rule be awarded costs.

 

 

[84]       The court has to consider all the facts of each and every case when exercising its judicial discretion.  The discretion of the court is not unlimited and has to be fair and just to all the parties.  I am therefore of the view that costs should follow the results.

 

ORDER

           

[85]       I make the following order: -

1. That the plaintiff’s claim for damages is dismissed;

 

2. The plaintiff to pay costs.

 

 

 

                                                                                                MADIBA SS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

Appearances:

Plaintiff’s Counsel                          :Advocate M de Meyer

Plaintiff’s Attorneys                       : F Van Wyk Attorneys

                                                        

Defendant’s Counsel                      : Advocate SM Malatji

Defendant’s Attorneys                    : Mr Motsepe

 

Date of hearing                                : 13 & 14 August 2020 (2 days)

Date of judgment                             : 08 SEPTEMBER 2020

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