PERSONAL INJURY

Facts and issue: This is an action for damages by the plaintiff on behalf of her minor son (O.M.M) who sustained gunshot injuries whilst he was 7 years old during community protests. The injuries sustained by the O.M.M were caused by the members of the South African Police Service during their scope of employment with the defendant. The merits were conceded 100% in favour of the plaintiff and the only issue to be determined was the quantum of the damages. The head of damages claimed by the plaintiff are general damages, loss of earning and future medical expenses.

Discussion: The minor child who was not part of the protest, was shot on his right cheek and sustained serious injuries that resulted in him developing a keloid on his cheek which makes it difficult for him to fully open his mouth and suffers from continuous pain. The clinical psychologist compiled a report as well and noted that the scar on the O.M.M’s cheek affects his speech and led to him being bullied at school. He is affected emotionally by the scar as he displayed signs and symptoms of post-traumatic stress disorder and anxiety. He will require counselling. According to the educational psychologist, O.M.M’s quality of life has been compromised by the injuries. She noted that he is a vulnerable learner diagnosed with PTSD and fits the criteria for a neuro-developmental disorder. The report by the industrial psychologist indicates that the incident impacted negatively on O.M.M, psychologically, physically and emotionally. His work capacity has been limited and thus his earning abilities. He should therefore be compensated adequately. Pre-incident he would have been able to complete his tertiary and enter the open labour market and work until retirement age. Post-incident his earning abilities have been affected.

Findings: The child’s life has been affected by the incident which includes his schooling. He does have learning barriers that will affect his ability to progress in the labour market but for the incident. The contingencies to be applied are at 5% pre morbid and 25% post morbid. This will make the total loss of earning R1,278,000 as argued by the defendant. O.M.M has an ugly scar on his right cheek which affect his self-esteem and considering the value of damages and inflation, the appropriate amount to be awarded is R550,000 for general damages.

Order: The total amount of damages payable to plaintiff being calculated R2,328,000.

Facts and issue: The plaintiff, Mr. Macamo, sues the defendant, the Minister, for what he says was his unlawful arrest and assault, carried out by Sergeant Maluleke and Sergeant Mutavhatisindi, together with other members of the police officers. Mr. Macamo overtook Sergeant Maluleke’s vehicle shortly before he reached the JMPD roadblock. He stopped at the roadblock. His car licence and his driver’s licence were checked. He was breathalysed, and then allowed to continue. Around 30 metres after the roadblock, he was stopped again by Sergeant Maluleke’s team, hauled out of his vehicle, handcuffed, kicked, slapped and punched. He says that some of the officers taunted him because he is from Mozambique.

Discussion: Mr. Macamo’s account of the assault was corroborated by the evidence of Sergeant Nzimande. Sergeant Nzimande said that he stopped at the scene to see if he could help. He said that he saw Mr. Macamo sitting on the ground with his hands cuffed behind his back. He saw Sergeant Maluleke slap Mr. Macamo. He saw another police officer kick Mr. Macamo in the back of the head. Sergeant Nzimande’s evidence was clear and satisfactory in every respect. Although the doctor did not notice any injuries to the back of Mr. Macamo’s head, the weight of evidence is plainly that Mr. Macamo was assaulted in the manner Sergeant Nzimande alleged. Sergeant Maluleke’s and Sergeant Mutavhatisindi’s version that Mr. Macamo had bottles of beer in his car was a falsehood, made up after the fact. Sergeant Maluleke and Sergeant Mutavhatisindi were, overall, wholly unimpressive witnesses. Their demeanour in the stand was dogmatic and belligerent. Neither man’s evidence is consistent with what was said on their behalf in the Minister’s plea.

Findings: The court rejects Sergeant Maluleke’s and Sergeant Mutavhatisindi’s evidence. On a balance of probabilities, Mr. Macamo was unlawfully detained despite having done nothing to provoke it. It cannot exactly be said what led to the arrest. It may have been because Mr. Macamo had the temerity to overtake a police vehicle, or perhaps it was simply because Mr. Macamo is from Mozambique. On the evidence, the assault was at least partly xenophobic in character. To kick and punch someone under restraint while taunting them about their national origin is despicable. It also adds a dimension of humiliation that cannot but force the value of the award upwards.

Order: The defendant is directed to pay to the plaintiff the sum of R270,000, plus interest at the prescribed rate.

Facts: In 2021, the plaintiff (Ms Ngwenya) attended at premises managed by the defendant, Accelerate Property Fund. She was employed by Electronic Toll Collection on behalf of SANRAL, a tenant, which was situated in one of the stores on the defendant’s premises. She went to the bathroom, and upon her return at a corner of the passage through the readily-used and accepted service entrance, she tripped “over something” and fell over a metal skirting that was on the wall on the open passage. In her words, “it felt like at the time, something pulled me back”. She testified that she was wearing wool-like boots. She was pregnant at the time and tried to protect her unborn child by placing her right hand to minimize the impact on her stomach, causing a fractured wrist.

Claim: The plaintiff claims damages arising from her injuries and contends that the defendant should have ensured that the metal skirtings and walkway on the premises were safe to the general public and properly affixed to the wall. The defendant denies that any breach of duty of care took place. Five disclaimer notices were in place on various pillars on main entrances or walkways inside the centre, including a disclaimer in the vicinity of the plaintiff’s place of employment.

Discussion: The video footage shows how the plaintiff barely passed the corner when she tripped, causing her to fall forward. The plaintiff can be seen cutting the corner and moving closer to the edge of the skirting, as if distracted. There was no foreseeable risk present at the defendant's premises, despite the occurrence of the incident established by the plaintiff. It cannot be concluded that there was a foreseeable risk of which the defendant ought to have been aware and that the defendant failed to take such steps as the diligence paterfamilias ought to have taken. The plaintiff did not prove foreseeability or negligence on the side of the defendant and accordingly failed to prove her case as she carried the burden to do.

Disclaimers: The disclaimer notices were prominently displayed and are 60cm by 42cm (A3 paper size) displayed at eye height, in clear and unambiguous terms, including on a pillar next to the scene of incident. The signs are not hidden or displayed amongst other more glamorous signs, but are displayed on their own. The signs were printed in black and red on a white background. At A3 in size, they are reasonable sized and pertinently displayed in a way that would draw the attention of a reasonable passerby. On her version, the plaintiff understood the consequences of the disclaimer signs. The plaintiff does not deny having noticed the signs, nor that she had read them. The allegation that the plaintiff says she did not pay attention to them for the two years she worked at the centre does not assist her. The court is satisfied that actual, or at the best for her, quasi-mutual assent was proven in respect of the said disclaimer.

* See the wording of the disclaimer at para [4].

Order: Plaintiff's claim is dismissed with cost on scale A.

MUDAU J

Facts and issue: The plaintiff instituted delictual action and claims damages for unlawful arrest and detention against the Minister and for malicious prosecution against the NPA. The arrest, detention and prosecution arise out of allegations of rape by the plaintiff. The issues for determination are whether the plaintiff has succeeded in proving the merits of his claim, in respect of claim 2; whether the defendant discharged the onus on him to show that the arrest of the plaintiff was lawful; and whether the plaintiff established a causal link between the actions of the defendant/ their employees and the patrimonial loss he alleges he suffered.

Unlawful arrest and detention: The arresting officer, Molefe, read the statement of the complainant which indicated that the plaintiff inserted his penis in her mouth. Molefe visited the complainant on the same day and interviewed her in the presence of a social worker. He testified that the complainant confirmed the allegations contained on her statement. On the same day, Molefe went to the plaintiff’s place of residence where he met with his wife and left his contact details. Molefe testified that, the plaintiff came to his office where he informed him of the allegations and the plaintiff did not offer any explanation. He took the plaintiff to the Secure Care Centre, where the complainant identified him as a perpetrator. Molefe, thereafter, took the accused to the police station where he charged him. After being informed of his constitutional rights, the plaintiff elected to make a statement in court. Molefe gave a good impression to the court as a diligent, objective and reasonable officer who performed his duties in accordance with the standard required by the law. The preliminary investigations which Molefe conducted before the arrest of the plaintiff buttresses the fact that he had a reasonable suspicion that an offence has been committed and that his discretion to arrest the plaintiff was properly exercised.

Malicious Prosecution: There is no evidence to suggest that Nteo played any part in improperly influencing the exercise of that discretion by the presiding officer, more so that the plaintiff was legally represented. According to Makhanya, he read the complainant’s statement, and, in his belief and mindset, the plaintiff was guilty of rape of a minor, which falls under Schedule 6. His decision to charge the plaintiff on a charge of rape and to oppose bail was informed by his understanding of the facts at that time. Makhanya was acting within the legitimate exercise of prosecutorial authority in deciding not to adhere to the recommendations of the arresting officer. There was a prima facie case against the accused. This is fortified by the fact that the plaintiff’s legal representative argument is pivoted on a wrong charge preferred by the prosecution. The plaintiff failed in proving the essential element of malice on the part of the prosecuting authority.

Order: Claims 1 and 2 are dismissed.

Facts and issue: The plaintiff instituted an action against the defendant for damages suffered because of an accident, pursuant to allegations that the plaintiff was pushed from a moving train carriage, the doors of which remained open while the train was in motion. In consequence of the incident, the plaintiff sustained injuries to his left tibia and fibula and various bruises and abrasions. The claim is predicated on the assertion that the defendant was under a legal duty to take such steps as were reasonably necessary to ensure his safety. The matter proceeded on the issue of merits only.

Discussion: Counsel for the plaintiff submitted that the plaintiff had succeeded in discharging the onus on a balance of probabilities that the incident occurred, as the plaintiff's version was corroborated by independent evidence. Furthermore, it was contended that the defendant has a legal duty to ensure that train commuters travel safely. In failing to do so, PRASA had negligently and wrongfully breached its said legal duty, as the carriage doors remained open. In addition, it was also contended that the defendant failed to make out a case of contributory negligence. The responsibility remained with PRASA to ensure the implementation of a strict safety regime of closing coach doors, when the train is in motion. The traditional but-for test is adequate to establish a causal link between the conduct by omission between the PRASA and the injuries sustained by the plaintiff. Likely, the plaintiff would not have been thrown out of the train had the strict safety regime of closing coach doors, when the train is in motion, been observed.

Findings: The plaintiff succeeded to establish that the negligent omission by the defendant was closely connected to the harm suffered by the plaintiff because of the incident. The plaintiff’s choice to remain standing where he did, cannot be regarded as an assumption of risk when it was always the defendant's legal duty to ensure that train doors are closed during the commute for the safety of the commuters. The defendant failed to discharge the onus, as no evidence was adduced to establish negligence on the part of the plaintiff on a balance of probabilities. PRASA had an actionable legal duty to keep the doors of the carriage closed while the train was in motion, to prevent passengers from falling out of the train. The defendant is solely liable for the harm suffered.

Order: The defendant is liable for 100% of the plaintiff’s proven or agreed damages.

Facts and issue: Claim for delictual damages for unlawful arrest and detention which arises from the unlawful arrest of the plaintiff by members of the South African Police Service. The plaintiff was arrested and detained at Kagiso police station for 3 days on charges of possession of an unlicensed firearm and live ammunition. He was released without appearing in court. The defendant conceded the merits of the claim in favour of the plaintiff. Therefore, the only issue is that of quantum.

Discussion: At the trial, the plaintiff was the only witness. He testified that he was arrested at a private home in the West Rand and furthermore that there was no evidence linking him to the allegation that he was in possession of a firearm and/or live ammunition. He testified that upon his arrest, as he was about to enter the police van, he requested to be allowed to relieve himself. The police refused. As a result, he urinated in the police van. The plaintiff testified further that he was held in a police cell with ten other people. The police cell was smelly; had no hot water; there was a single toilet in the cell and the persons in the cell would have to use the toilet in the presence of each other. He was forced to sleep on a mattress that was not comfortable and was given a smelly blanket. He was served tea and plain bread, pap and cabbage. The plaintiff could not sleep due to the conditions of the mattress and the blanket. The plaintiff was held in detention for a period of approximately three days and did not appear in court, nor does it appear that he was charged with any offence.

Findings: The defendant led no evidence. The defendant did not put any version to the plaintiff in cross-examination. The detention was without justification; and the plaintiff was deprived of his freedom; his treatment was degrading and inhumane and clearly infringed his constitutional rights to freedom and dignity. The plaintiff should be awarded a sum of R120,000. This amount is a discretionary amount based on the facts and circumstances of the case at hand. It is arrived at by balancing the rights of the individual to his personal freedom, of which he was arbitrarily deprived in the case, with that of not lavishly enriching the plaintiff. The amount is a solatium for his injury.

Order: The defendant is ordered to make payment to the plaintiff in the sum of R120,000.

Facts and issue: The plaintiff brings a claim for damages based on the unlawful arrest and detention of the plaintiff by the defendants. The plaintiff is employed by the South African Police Service as a Sergeant. The plaintiff was arrested without a warrant of arrest by members of the SAPS. The plaintiff was arrested on the of conspiracy to commit business robbery.

Discussion: The plaintiff’s version seems to be reasonable and believable. That he was already arrested/deprived of his freedom at the Engen garage is supported by Dlamini’s (arresting officer’s) statement as well as the defendants’ plea. The plaintiff’s version that he was arrested and detained because he argued with the Hawks members and did not want to apologise was not disputed in cross-examination and stands uncontested. The plaintiff’s version of why he was at the Engen garage seems to be reasonable. It was not disputed that the members of the Hawks knew his name, his rank and at which police station he worked and at any stage after the incident at the Engen station, after obtaining a warrant of arrest they could have arrested him. No reasonable explanation was provided why it was necessary to arrest and detain the plaintiff that evening and not first do a diligent search and investigation in respect of his alleged involvement in the proposed robbery. It is a reasonable inference that if the plaintiff was involved with the suspects in the proposed robbery he would have aborted the mission and informed the suspects immediately after recognising Dlamini and Wynand as Hawks members at the Engen garage.

Findings: It was not disputed that the plaintiff was told by Mokwena that if he did not apologise for arguing with the members of the Hawks at the scene, they were going to arrest him and detain him. This points to an ulterior motive. It was not disputed that plaintiff became argumentative with Wynand and Dlamini, because Wynand was pointing his finger at him, and they wanted him to be afraid because they are the Hawks. There was an ulterior motive for his arrest and detention because he refused to apologise to the Hawk members for arguing with them and the reason for the arrest was not to bring him to court. The fact that the charge against the plaintiff was dropped even before he appeared in court the next day and he was released without appearing in court, confirms that the decision to arrest him based on the alleged suspicion that the plaintiff committed an offence referred to in schedule 1, did not rest on reasonable grounds and was not objectively sustainable.

Order: The plaintiff’s arrest and detention were unlawful.

Facts and issue: The plaintiff, instituted a claim for damages based on unlawful arrest and detention against the Minister of Police, the National Commissioner of Police, and the Provincial Commissioner. The plaintiff was arrested by a police officer and detained together with her four months old baby. Both were released without her appearing in court. The defendants plead that the officer who effected the arrest acted in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977. The court is called to decide whether there was a reasonable suspicion that the accused committed a Schedule 1 offence and if so whether the plaintiff’s arrest and detention was lawful. Secondly whether the child’s detention was lawful.

Discussion: The complainant laid a charge of malicious damage to property against the plaintiff. The complainant took Constable Ndlazi to his house for him to see the damage to his Television screen. On arrival he could see that the television screen was damaged. He could see that it was struck with a rock from the direction of the door. He went to the accused’s home in the company of the complainant. The plaintiff was very angry saying that the complainant who is her ex-boyfriend had bewitched her and as a result she cannot have intimate contact with other men, and that he had to undo what he did to her. The accused admitted to damaging the Television screen, adding that she will continue to trouble and harass him. Constable Ndlazi then arrested her and took her to the police station. He decided to detain her because she was angry, and she was threatening to cause further harm to the complainant. While at her home, Constable Ndlazi asked the plaintiff to leave the child at home, and she refused to do so. He could have taken the child to a place of safety, but the plaintiff refused.

Findings: The officer did not act on the word of the neighbour alone and arrested the plaintiff, he conducted some investigations to satisfy himself if indeed a crime was committed or not. He even gave the alleged suspect an opportunity to explain the allegations against her. He arrested the plaintiff after he had interviewed her and seen the need to stop her from carrying out her threats which she uttered in front of him even though he was a law enforcement officer. Police cells are not homes for children and are thus not equipped to cater for their needs. The detention of the child was unlawful. The same cannot be said to about the plaintiff’s arrest and detention. On the contrary the plaintiff’s arrest and detention are found to be lawful. Only the child is therefore entitled to damages that have been proved.

Order: The plaintiff claim for unlawful arrest and detention is dismissed. The plaintiff’s claim for unlawful detention in respect of her minor child is upheld. The defendant is ordered to pay damages to the plaintiff in the amount of R100,000 occasioned by the child’s unlawful detention.

Facts: At the time of the accident, the plaintiff was a Grade 5 learner and, together with the other learners of the school, was being conveyed from the school to destinations in New Town, Postmasburg. It was not in dispute that by virtue of section 60(1) of the South African Schools Act 84 of 1996, the State (represented by the HoD and the MEC for Education in the Northern Cape) was liable for the delictual damages suffered by the plaintiff in 2006 when she was pushed or fell from the moving Nissan bus which was operated by the Frans Hael Bus Service. The issue of liability was settled and in terms of a consent order it was ordered that the HoD, MEC and Frans Hael Bus Services, jointly or severally, would pay to the plaintiff the sum of R10 million.

Apportionment: The HoD and MEC, on the one hand and the Frans Hael Bus Service, on the other hand, were declared to be joint wrongdoers in terms of section 2(2) of the Apportionment of Damages Act 34 of 1956, and the court would make a just and equitable apportionment, having regard to the degree in which each joint wrongdoer was at fault in relation to the damages suffered by the plaintiff.

Discussion: This court cannot see how the previous court could have determined in the consent order that the HoD and MEC on the one hand and the Frans Hael Bus Service, on the other, are joint wrongdoers for purposes of the Apportionment of Damages Act, when it had not determined their respective degrees of negligence which is causally linked with the damage. The assessment or determination of the defendants’ respective degrees of negligence for the purpose of apportionment cannot be thumb-sucked. It must be based on the evidence before the court. In this case, no evidence was presented which could have enabled the court to determine, let alone to assess, the negligence or fault of the respective defendants. This makes it even more difficult to imagine how the court could have been able to determine that the Hod and MEC on the one hand and the Frans Hael Bus Service, on the other hand, were both negligent and that their negligence was causally linked to the plaintiff’s damages.

Findings: The liability of the HoD and MEC to compensate the plaintiff in this case is statutory, not delictual in nature. For this reason, so it is argued, the HoD and MEC cannot be joint wrongdoers with the Frans Hael Bus Service. This contention finds support in various judgments of our courts. Because apportionment is based on fault in its ordinary sense, the purpose of which is to measure each of the parties’ degree of fault or negligence, absent “fault” or negligence on the part of the HoD and MEC, as it is the case here, then there cannot be apportionment of liability between the HoD and MEC on the one hand, and the Frans Hael Bus Service on the other hand.

Order: There is no apportionment of liability between the HoD and MEC on the one hand, and the Frans Hael Bus Service on the other hand. Each of the defendants shall bear their own costs.

RAMAEPADI AJ

Facts: The plaintiff was arrested and detained in the presence of members of the public by Warrant Officer Brijall together with other unknown members of the South African Police Service (SAPS), all acting within the course and scope of their employment with SAPS. The plaintiff was then transported to the police station where he was detained in the police cells until he was taken to the magistrate's court holding cells. He was charged by the prosecuting authority with theft, money laundering and fraud. The plaintiff was released on payment of R20,000 bail. The plaintiff was compelled to make five appearances at court.

Claim: The plaintiff claims for payment of damages suffered firstly against the defendants for contumelia, deprivation of bodily freedom, liberty and discomfort as well as the infringement of the plaintiff’s good name, reputation and standing in the community in the total amount of R500,000 as a result of his unlawful arrest and detention; secondly, against the further defendants, as a result of malicious prosecution for contumelia, deprivation of bodily freedom, liberty and discomfort as well as the infringement of the plaintiff’s good name, reputation and standing in the community in a further total amount of R500,000. Thirdly, against all the defendants for loss of earnings.

Discussion: The plaintiff contends that he suffered past and future loss of earnings because of the decline in the business of a museum, restaurant and pub, in consequence of his arrest, detention and prosecution. The plaintiff’s case as framed in the particulars of claim is that the warrant for his arrest was irregular and bad in law. Had WO Brijlall considered the plaintiff’s known age, his health and that it is unlikely he was a flight risk, as well as the possible consequences of arresting him in full view of his patrons, he might well have gone about the arrest differently. If he had been more circumspect, the consequences of the arrest and detention might well have been very different. Regarding the claim that the warrant of arrest was irregular and bad in law, WO Brijlall conceded not only that in obtaining the warrant the requirements were not complied with, but that the warrant was irregular and wrongful, and that the arrest of the plaintiff was wrongful. These concessions were correctly made. WO Brijlall caused the warrant for the arrest of the plaintiff to be pursued and obtained, without due consideration and investigation of the facts and circumstances prevailing, and in the absence of justification to do so.

Findings: The application for the warrant was fatally flawed and the warrant in consequence was invalid. It follows the arrest of the plaintiff was unlawful and wrongful. The factual causa sine qua non for the institution of the proceedings against the plaintiff was the conduct of the NDPP’s members or employees. There was no evidence upon which the employees or members of the NDPP may reasonably have concluded the plaintiff was probably guilty of the offences with which he was charged. In instituting the prosecution against the plaintiff, the NDPP’s members or employees clearly directed their will to prosecuting the plaintiff which in consequence infringed upon his rights. As there was no reasonable and probable cause to do so, their conduct was wrongful. The plaintiff’s arrest and detention directly led to the demise of his businesses and damage to his patrimonium in respect thereof. According to the evidence, he suffered a loss of both and past and future earnings. The Minister of Police and WO Brijlall and the members of the NDPP were the factual cause thereof. As regards legal causation, WO Brijlall’s conduct, as well as that of the members of the NDPP, were a direct cause of the loss suffered by the plaintiff of past and future earnings.

Order: Judgment is granted against the first, second and fifth defendants jointly and severally on the merits in respect of Claim A based on the actio iniuriarum for payment of damages. Judgment is granted against the first, second and fifth defendants jointly and severally on the merits in respect of the Aquilian claims set out in Claims C and D.

KRUGER AJ

Facts and issue: The plaintiff instituted action against the defendant for his unlawful arrest and his subsequent detention. Only the quantum of the plaintiff’s claim remains to be determined. The plaintiff pleaded that as a result of his unlawful arrest, alternatively apprehension and the unlawful detention by members of the defendant, he suffered damages in the amount of R5 million based on the deprivation of his liberty, the injury to his person, being humiliated and traumatised, his right of security and safety being injured, injury to his reputation, being subjected to adverse circumstances, being detained in a police cell for two days and for approximately seven months in the Grootvlei Correctional Services facility, loss of income for a period of more than seven months, and being offended by acts of the members of the defendant.

Discussion: When the police arrived at his flat, he was upstairs in his room whilst Lerato made breakfast for them. He heard her screaming, and she sounded frightened. He was naked and went downstairs, where he saw the police officers carrying firearms. He was informed that they were there to arrest him. The firearms were pointed at him, and they shouted that he must go down on the floor, to which he complied. The arrest took place not long after he was discharged from the hospital as he had an open fracture to his leg. At the date of his evidence, the wound has not yet healed, and he still has to receive physiotherapy. When he enquired the reason for his arrest, various reasons were mentioned, that there was footage of a robbery that was committed at a certain shop. He told them that it was impossible for him to have been involved in the robbery and showed them the operation he had on his right leg. All three police officers could see the injury and could notice that he was unable to walk properly as he had a limp. He suggested they approach Pelonomi Hospital to see when he was admitted and discharged. The officers did not heed his request.

Findings: Police officials are expected to treat persons suspected of crime with dignity. The plaintiff was vulnerable (naked) when he proceeded downstairs, in his own home, where the police officers were waiting. He was unarmed when he was instructed to lie down; all three officers pointed their firearms at him. His request that his whereabouts on the alleged robbery day be verified at the hospital fell on deaf ears. His pregnant girlfriend was frightened, and this undoubtedly impacted his psychological state. He could not be present when his son was born. He was then taken to a holding cell for two days. The case law is replete with references to the unacceptable conditions in holding cells, especially concerning the lack of privacy. He was then detained at Grootvlei for approximately seven months.

Order: The defendant shall pay the plaintiff R1,000,000 for general damages.

Facts and issue: Action for damages against the Minister of Police. The plaintiff pleads that he was arrested without a warrant by police officers who were all members of the South African Police Services (SAPS) and whose full names and rank are unknown to him. It is further pleaded that, subsequent to his arrest, the plaintiff was detained at the police station at the instance of these policeman as well as various other policemen whose names and identities are also unknown to the plaintiff. The plaintiff pleads that he was assaulted by being punched in the face and grabbed and forced into a police vehicle.

Discussion: The plaintiff then was given time to prepare a substantive amendment in terms of which he sought to plead a new factual complex. This was done to attempt to mirror the evidence already provided by him. The amendment sought to change the pleaded version. The amendment sought to take into account the newly produced statement and assault charge which was significantly at odds with the pleaded case. The fact that the police officers, whilst pleaded as unknown to the plaintiff, were named in the statement and traceable was also a factor which had only just come to light for the defendant. The plaintiff had confirmed in his evidence that the identity of these police officers was discovered based on the register kept at the shop which recorded the visits of policemen who were deployed routinely to inspect shops owned by foreigners during the period of xenophobic violence. The defendant claims prejudice in that for years it has been dealing with a case which is to the effect that the plaintiff was arrested by unknown police officers and detained by unknown police officers at a police station.

Findings: The fact that the police officers involved were known to the plaintiff all along is of enormous significance. The defendant has been deprived of the opportunity to lead evidence and cross- examine. One can only speculate as to the course the trial would have taken had the charges laid against the two police officers not been latterly found by the defendant. The defendant was called upon by the proposed amendment after eight years and after the case of the plaintiff had come to a close to meet an entirely new case. The eight-year delay in moving for the amendment was not explained nor is it explicable on any basis which was in accordance with good faith. The plaintiff should have explained the delay in seeking the amendment. This is not a matter where it would be appropriate to allow the amendment.

Order: The plaintiff’s claims are dismissed with costs.