IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CASE NO, 1276/04
In
the matter between :
KHAYA
FANA TSABEDZE PLAINTIFF
VERSUS
THE
DIRECTOR OF PUBLIC PROSECUTIONS 1st DEFENDANT
THE
COMMISSIONER OF POLICE 2nd DEFENDANT
THE
ATTORNEY GENERAL 3rd DEFENDANT
CORAM
SHABANGU AJ
FOR
PLAINTIFF MR. S.C. SIMELANE
FOR
DEFENDANT MR. S. MASEKO
27th
August, 2004
In
this action the plaintiff has instituted an action in which he claims
damages as detailed in his particulars of claim, which damages
allegedly arise from the alleged arrest, detention and malicious
prosecution by the Defendants. The arrest which was without warrant
and is alleged to have occurred on the 8th December, 2001 is admitted
by the defendant. It is further admitted that the aforementioned
arrest was followed by a subsequent detention of the plaintiff who
was kept in custody until 30th September, 2003 when the defendants'
withdrew the charges against the said plaintiff on the basis of
section 6 of the Criminal Procedure and Evidence Act 67/1938. It is
therefore common cause that the plaintiff was arrested and kept in
custody for almost two years and that the
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Defendants
did not proceed with the scheduled trial on 30th September, 2003 but
instead withdrew the robbery charges. In paragraph nine of the
particulars of claim the plaintiff further alleges that "there
was no reasonable basis upon which the Plaintiff could be suspected
of having committed the offence for which he was arrested." At
paragraph ten the plaintiff's particulars of claim conclude as
follows;
"The
prosecution of the Plaintiff by the First Defendant was malicious and
or wrongful in that there was no evidence on the basis of which the
charge of which the Plaintiff had been indicted, could be sustained.
In fact, the Plaintiff was never in jeopardy of being convicted. "
The
defendant in its plea has responded to paragraph five of the
particulars of claim by simple stating that "the contents of
this paragraph are not denied. The defendants state that the arrest
was effected within the ambit of section 22 of the Criminal Procedure
and Evidence Act (as ammended) 1938." To paragraphs nine and ten
the defendant after denying the contents of those paragraphs and
stating that the plaintiff is put to strict proof thereof plead as
follows;
"6...
The defendants state that the arrest and detention of the plaintiff
was lawful for the plaintiff was arrested on reasonable suspicion
that he had committed a crime of robbery."
Then
at paragraph seven of the plea the defendant states;
"7...
The defendants state that the prosecution withdrew charges before
plaintiff was called to plead so there is no question of malicious
and unlawful prosecution."
The
Plaintiff has excepted to the Defendant's plea and the exception is
formulated in the following terms. The complaint is that "the
plea does not disclose a defence, alternatively, that the plea lacks
necessary averments to sustain a defence in that;
1.
The defendant's state that the arrest and detention was lawful as the
Plaintiff was arrested on the reasonable suspicion that he had
committed the crime of robbery.
The
Defendants however, do not state the facts upon which the
[suspicion] was founded, i.e. whether the Plaintiff was positively
identified as the person who committed the robbery. Such
allegations are necessary for a litigant to establish a defence to
the Plaintiff's action.
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2.
The Defendants state that the Plaintiff was never prosecuted as the
charges were withdrawn before the Plaintiff was called upon to plead.
2.1
Such allegations do not establish a defence to the Plaintiff's action
and are untenable at law since the prosecution commences upon the
accused person being charged with the offence and ends either upon or
such Judgement being passed on the matter or such earlier event i.e.
withdrawal of the charge. The trial is only part of the process of
prosecution.
2.2
In casu the Plaintiff was charged at the Magistrates court, remanded
in custody on various occasions, committed for trial in the High
Court, indicted for the offence of robbery, underwent a pre-trial
conference and actually attended court on the day of the trial where
upon the charges were withdrawn. It cannot therefore be said that the
plaintiff was never prosecuted for the offence of robbery."
If
one were to summarise and paraphrase the matters raised by the
exception the matters so raised may be stated as follows, namely
whether it is necessary for a defendant who pleads that an arrest and
a subsequent detention of the plaintiff was because the defendants'
had reasonable suspicion that the plaintiff had committed an offence
mentioned in Part II of the First Schedule, to make factual
allegations which if proved at the trial the conclusion that the
defendants' had reasonable grounds for the suspicion, would follow.
The defendants' plea does not make any factual allegations which
allegations would if proved at the trial justify the conclusion that
the defendants had a reasonable suspicion or reasonable grounds for
the suspicion by the defendants. Paragraph 3 of the plea as already
observed simple states that "the arrest was effected within the
ambit of section 22 of the Criminal Procedure and Evidence Act, 1938.
This is not a pleading. Whether the arrested was indeed effected
within the ambit of section 22 of the Criminal Procedure and Evidence
Act 67 of 1938, is a matter of law which the court will have to
determine having regard to the factual circumstances revealed by the
evidence at the trial or as revealed in the plea. It is the factual
circumstances which the defendant must plead. The defendant must make
allegations of facts which would bring
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the
defendants' conduct within section 22 of the Criminal Procedure and
Evidence Act of 1938.
Similarly
in my opinion to merely state as the defendants have done in
paragraph six of their plea that " plaintiff was arrested on
reasonable suspicion that he had committed a crime of robbery,"
is merely to state a legal proposition. What is required of the
defendant is to allege facts which if proved at the trial can lead
the court to conclude that there were reasonable grounds for
suspecting the plaintiff of having committed the crime of robbery.
What the defendant has done is simple to state its view about the
reasonableness of the suspicion, even though it is for the court to
determine that question. To require the defendant to plead the facts
or grounds upon which the reasonable suspicion was based is not to
require the defendant to plead the evidence. To allege, for example
that plaintiff was found in possession of items a, b and c which
items are also alleged to have been taken from the robbery would be
to plead the appropriate facto, probanda to justify the arrest.
Whether in fact being found with the items would legitimately justify
a reasonable suspicion that the person found with the items (i.e.
plaintiff) had committed the robbery is a matter which the plaintiff
would be able to assess on the pleadings and understand fully the
case he has to meet at the trial. Having regard to this therefore the
complaint raised by the exception that "the defendants...do not
state the fats upon which the [suspicion] was founded" is well
founded. On this latter point even though I have not been referred to
case law in support thereof and I have not been able to find any case
law authority which is directly in point I am of the view that the
complaint raised by the exception is well founded. In the premises
the point raised in paragraph 1.1 of the exception is upheld.
I
turn now to the aspect of the exception raised and as formulated in
paragraph 2 of the plaintiff's exception to the defendants' plea.
This aspect of the exception relates to the allegation in paragraph
seven of the defendants' plea that "the prosecution withdrew
charges before the plaintiff was called upon to plead". After
making this factual allegation the defendant continues to draw the
conclusion that there can be no case for malicious and unlawful
prosecution therefore. In other words the defendants' case
5
appears
to be that because the charges were withdrawn before the plaintiff
was called upon to plead it cannot be said that there was a
prosecution of the plaintiff in fact and that since there was no
prosecution the wrong of malicious prosecution was not committed. On
the other hand it was argued on behalf of the plaintiff that it does
not matter and therefore it is no defence to the claim that the
plaintiff was not called upon to plead. In other words the plaintiff
disputes, as a matter of law, the legal conclusion which the
defendant seeks to draw from the fact that the charges were withdrawn
before the plaintiff was required to plead. (See ISAACS, BECKS THEORY
AND PRINCIPLES OF PLEADING IN CIVIL ACTIONS 5th EDITION 1982 at
paragraph 62 page 125). The exception raises a question of law as to
whether in a claim of malicious prosecution it is necessary that the
plaintiff must have pleaded to a criminal charge before such a claim
could lie. Rule 23 of the rules of this court defines the
circumstances when it would be competent for a party to except to a
pleading. Subrule (1) of that rule reads;
"Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case may be, the
opposing party may, within the period provided for filing any
subsequent pleading, deliver an exception thereto and may set it down
for hearing in terms of rule 6 (14)... "
The
subrule three of the aforementioned rule makes it a requirement that
the grounds upon which the exception is founded shall be clearly and
concisely stated. A reading of the said subrule 1 of rule 23 may seem
to suggest that the excipient who complains that the pleading does
not disclose a cause of action or defence must clearly and concisely
state what essential averment is lacking in the pleading, thus
rendering same to be excipiable. This is the usual method by which an
exception is taken to a pleading. However as ISAACS supra observes at
paragraph 62,
"The
modern exception being thus restricted to pure matters of law it is
of the essence of a valid exception that no new facts should be
raised at all, no any facts disputed. The excipient, for the purposes
of the exception is bound by the pleading to which he excepts and is
taken to admit those facts. This admission is, however, purely for
the purpose of the exception and for nothing more... An exception
being thus understood to be a legal objection which admits the
correctness of the facts averred but urges that, the truth thereof
notwithstanding, those facts do not in law establish any sufficient
case either of claim or defence as the case may be,..."
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From
the above quoted passage that even though the rales limit the
circumstances under which exceptions can be taken to pleadings, the
exception taken in the present matter is not outside the scope of
those limits.
I
now turn to the question of law raised by the exception, namely
whether the fact that the plaintiff did not reach a stage in the
proceedings whereby he was called upon to plead to the robbery
charge, would be a defence to the plaintiff's claim. The wrong of
malicious prosecution sometimes also known as malicious procedure
does not require that the plaintiff must have been called upon to
plead in order for the wrong to have been committed. In fact even the
plaintiff has not averred that the criminal proceedings which the
defendants's instituted against him had reached a stage where he was
called upon to plead. No authority either at the level of case law or
principle was cited to me in support of the proposition that a
plaintiff who sues for damages arising from malicious prosecution or
procedure must have been required to plead to a criminal charge in
order to succeed in his claim. In fact whether he has been required
to plead or not is irrelevant to the case, that is, to any cause of
action or defence that might be raised. The essential elements of the
cause of action based on malicious prosecution appear to be these (a)
that the defendant set the law in motion (b) that the defendant acted
maliciously (c) that the defendant acted without reasonable and
probable cause and (d) the criminal proceedings must have been
instituted upon a charge which is false in fact. ISAACS, BECKS THEORY
AND PRINCIPLES OF PLEADING IN CIVIL ACTIONS paragraph 120 and the
cases cited there. (See also HARMS L.T.C. AMLER'S PRECEDENTS' OF
PLEADINGS, 3RD edition. P. 197) In light of this there is a
possibility that the plaintiff's particulars claim themselves do not
disclose a cause of action for malicious prosecution. That the
plaintiff's particulars of claim may not disclose a cause of action
is arguable but I make no finding on whether indeed no cause of
action for malicious prosecution is disclosed. In any event no
exception has been taken by the defendants that no cause of action is
disclosed in the particulars of claim. It is the label in paragraph
eleven of the particulars of claim which informs the defendants that
the plaintiff intends to claim for inter alia, malicious prosecution.
That is not to say that the label in itself sufficiently informs the
defendants of the case against them. Whether a case for malicious
prosecution is correctly and sufficiently made depends on the
allegations of
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fact
made in the body of the particulars of claim and not on the label.
Inspite of these the objection raised in paragraph two of the
exception is also upheld.
The
whole exception is therefore upheld with costs. The defendants are
given twenty-one days within which to ammend their plea, if they are
so advised.
ALEX'S.
SHABANGU
ACTING
JUDGE
