Ntuthuzelo Thinga v Minister of Police

On 6 September 2022, the plaintiff was arrested by members of the South African Police Service (SAPS) in front of a crowd of people at Stanford Terrace Street in Mthatha. He was allegedly arrested by one Mr. Mtwa and other SAPS members based on a complaint that he had shot a young man. The plaintiff was taken to Central Police Station without being shown an arrest warrant. His fingerprints were taken and he was detained in cells described as inhumane with 30-40 people. He appeared in court on 7 September 2022 and his case was postponed to 15 September 2022, during which time he remained in custody for a total of 9 days. On 15 September 2022, the prosecutor reviewed video footage, determined the plaintiff was not the person depicted, and released him as he was not guilty of any offence. The plaintiff sued the Minister of Police for damages in the amount of R900,000.00. The defendant filed a notice to defend and a plea, but the defence was struck out on 12 November 2024 with costs. The defendant did not apply for reinstatement or rescission. The plaintiff applied for default judgment.

• Whether the plaintiff's particulars of claim contained the necessary averments to establish vicarious liability of the Minister of Police for the actions of SAPS members
• Whether the plaintiff complied with Rule 9 requiring a clear and concise statement of material facts
• Whether the plaintiff proved on a balance of probabilities that SAPS members committed delicts while acting within the course and scope of their employment
• Whether default judgment should be granted in the circumstances

The application for default judgment is refused. The plaintiff is granted leave, if so advised, to amend his particulars of claim. There shall be no order as to costs.

In an action claiming vicarious liability against the Minister of Police for delicts committed by SAPS members, the plaintiff must specifically plead in the particulars of claim: (1) that the employee who committed the delict was an employee of the defendant; (2) the scope of the employee's duties at the time of the commission of the delict; and (3) that the employee performed the delictual act in the course and scope of employment. The absence of these essential averments in the particulars of claim constitutes a failure to comply with Rule 9 of the Uniform Rules of Court, which requires a clear and concise statement of material facts. Such deficiencies cannot be cured by leading evidence at trial. A court cannot grant default judgment where the particulars of claim lack the necessary averments to establish the cause of action, even where the defendant's defence has been struck out and not reinstated.

The court noted that it need not deal with the quantum of damages given its finding on the pleadings. The court also observed that the law on vicarious liability is settled law, referencing the development over decades and the two tests (subjective and objective) formulated in Minister of Police v Rabie regarding whether an act falls within the course or scope of employment. The court cited the general description of vicarious liability from Neethling as 'the strict liability of one person for the delict of another' where there is a particular relationship between two persons. While sympathetic to the plaintiff's position (evidenced by granting leave to amend with no costs order), the court was firm that proper pleading requirements must be met before a claim can succeed.

This case emphasizes the strict procedural requirement in South African law that a plaintiff must properly plead all material facts necessary to establish vicarious liability in claims against the Minister of Police for actions of SAPS members. It reinforces that compliance with Rule 9 of the Uniform Rules of Court is mandatory and that deficiencies in pleadings cannot be remedied merely by leading evidence at trial. The case illustrates that even where a defendant's defence has been struck out, a court will not grant default judgment if the particulars of claim are fundamentally defective. The judgment serves as a reminder to practitioners of the importance of properly pleading the three essential elements of vicarious liability: employment relationship, scope of duties, and that the delictual act occurred within the course and scope of employment.