On 6 September 2022, the plaintiff was arrested by members of the South African Police Service (SAPS) at Stanford Terrace Street in Mthatha without a warrant. A young man had complained that the plaintiff had shot him. The plaintiff proclaimed his innocence and requested that his brother be contacted to track his car's location, but this request was ignored. He was taken to Central Police Station, fingerprinted, and detained in inhumane conditions in overcrowded cells with 30-40 people. He appeared in court on 7 September 2022 and his case was postponed until 15 September 2022. On that date, the prosecutor reviewed video footage and determined that the plaintiff was not the person depicted in the footage and released him, stating he was not guilty. The plaintiff was detained for a total of 9 days. Summons were issued on 24 November 2022. The defendant filed a notice to defend on 13 March 2023, but the defence was struck out on 12 November 2024 with a costs order. The defendant did not apply for reinstatement or rescission. The plaintiff then applied for default judgment, claiming damages of R900,000 for wrongful arrest and detention.
The application for default judgment was refused. The plaintiff was granted leave, if so advised, to amend his particulars of claim. There was no order as to costs.
In an application for default judgment based on vicarious liability of the Minister of Police for wrongful conduct by SAPS members, the plaintiff must allege in the particulars of claim the material facts establishing that: (1) the employee who committed the delict was an employee of the defendant; (2) the scope of the employee's duties at the time of commission of the delict; and (3) that the employee performed the delictual act in the course and scope of employment. Failure to plead these essential averments means the particulars of claim do not comply with Rule 5's requirement for a clear and concise statement of material facts, and default judgment cannot be granted even where the defendant has failed to defend. The onus rests on the plaintiff to prove on a balance of probabilities that the master is vicariously liable for wrongs committed by the employee whilst acting within the course and authority as a servant of the master.
The court noted that the law on vicarious liability is settled law and provided a comprehensive review of the applicable legal principles, including the dual test (subjective and objective) from Minister of Police v Rabie. The court also observed that the defendant had not instituted any interlocutory application for reinstatement of the defence or for rescission of the order striking out the defence. While the court made findings about the inhumane conditions of the cells (30-40 people in overcrowded cells), this was not determinative of the legal issues and formed part of the factual narrative only. The court's grant of leave to amend suggests that the defect in the pleadings was considered curable through proper amendment.
This case reinforces the fundamental principle that pleadings in South African civil procedure must contain all material facts necessary to establish the cause of action. It emphasizes the strict requirements for pleading vicarious liability against the state, particularly that plaintiffs must specifically allege that employees acted within the course and scope of their employment when committing delictual acts. The case demonstrates that even where a defendant is in default, the court will still scrutinize whether the pleadings disclose a sustainable cause of action. It serves as a practical reminder to legal practitioners of the importance of proper pleading, particularly in claims against the Minister of Police based on vicarious liability for conduct of SAPS members.