THE
HIGH COURT OF SWAZILAND
SIPHO
SIBUSISO POMA MASUKU
Plaintiff
And
THE
COMMISSIONER OF POLICE
1st
Defendant
THE
DIRECTOR OF PUBLIC PROSECUTIONS
2nd
Defendant
THE
ATTORNEY GENERAL
3rd
Defendant
Civil
Case No. 2312/2003
Coram S.B.
MAPHALALA – J
For
the Plaintiff MR, S. SIMELANE
For
the Defendants MR. KHULUSE
JUDGMENT
(21/07/2004)
The
Plaintiff instituted action against the Defendant by way of combined
summons dated 12th September 2003 where he claims a sum of E800,
000-00 as damages he
2
alleges
to have suffered as a result of unlawful arrest and subsequent
malicious prosecution.
Defendants
by way of notice in terms of Rule 23 of the High Court rules raised
an exception to the plaintiff's summons. The basis of the Defendants'
exception is that plaintiff's Particulars of Claim lack the
necessary averments to sustain a cause of action in that no
allegation is made of the fact that at all material times the members
of the Royal Swaziland Police Force were acting within the course and
scope of their employment by the Swaziland Government.
The
Defendants in their submissions contend that it is trite law that for
an employee to be held liable for the wrongful conduct of his
employee, the employee must have acted within the cause and scope of
his employment when the delict was committed. In casu there is
nothing whatsoever to associate the Swaziland Government with the
conduct that is complained of. It is merely alleged that members of
the 1st Defendant did something unlawful in respect of the Plaintiff,
but it is not shown how the Swaziland Government is affected thereby.
The
court was referred to the cases of Belfort vs Morton and Co. 1920 CPD
589 at 591 and that of Mckenzie vs Farmers Co-operatives Meat
Industries Ltd 1922 AD 16 at 23 to support the Defendants arguments.
Mr.
Simelane arguing for the Plaintiff took the view that the exception
advanced by the Defendants is purely technical in that it does not
advance the Defendants' case in any way. He argued that the
Particulars of Claim in the present case reflect a cause of action in
accordance with the general principles in pleadings. He argued
further that the liability of the Commissioner of Police is a matter
of law. He attacked the exception itself as being defective in that
it does not conform to the full strictures of Rule 23.
Having
considered the submission advanced in this case I am inclined to
agree with the submissions made on behalf of the Defendants. An
employer is liable for damages occasioned by the delicts committed by
his employee in the course of his employment. The onus rests on the
Plaintiff to allege and prove that the person who
3
committed
was: (see Stadraad Van Pretoria vs Pretoria Pools 1890 (1) S.A. 1005
(T):
The
servant of the Defendant; (see Gibbins vs Williams, Muller Wright &
Mastery Ingelyf 1987(2) S.A. 82 (T)).
That
he performed the act in the course and scope of his employment;
What
the servant's duties were or with what work he was entrusted at the
relevant time, (see Mkize vs Martens 1914 A.D. 382, Minister of
Police vs Mbilini 1983 (3) S.A. 705 (A), Net vs Minister of Defence
1979 (2) S.A. 246 (R) and Antler's Precedents of Pleadings at page
320).
The
Plaintiff in casu has not complied with requirement (b) set out
above.
Therefore
for the reasons advanced above I would allow the exception taken and
I would, however allow the Plaintiff to file an amended pleading
within 14 days from the date of this judgment.
The
costs to be costs in the cause.
JUDGE
