ZACC 35
Hearing Date: 16 February 2023
Judgement Date: 14 November 2023
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 14 November 2023 at 09h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal.
The Applicant is Mmabasotho Christinah Olesitse N.O., cited in her capacity as the duly appointed executrix in the deceased estate of Tebogo P Olesitse (the deceased). The respondent is the Minister of Police, cited in his official capacity.
These proceedings relate to an incident that took place in May 2008, where a police task force conducted a large-scale operation in respect of vehicles and vehicle parts that had been stolen from police custody in the North West Province. Numerous members of the South African Police Service (SAPS) were involved in this operation and after extensive investigations, some of these members of the SAPS were subsequently arrested, and some of whom were later charged, successfully prosecuted, and sentenced. The deceased, a then police officer stationed at the Mafikeng Police Station vehicle identification section was one of the members of the SAPS who were arrested. The deceased was arrested by police officers without a warrant and detained on a charge of theft and corruption. The deceased was detained at the police station on 19 May 2008 and released on bail on 29 May 2008. On 17 May 2011, the charges against the deceased were formally withdrawn when the Director of Public Prosecution (the DPP) declined to proceed with the prosecution of the charges.
On 26 May 2011, the deceased instituted action proceedings in the High Court of South Africa, Gauteng Division, Pretoria (High Court), under case number 29788/2011 against the respondent for payment of damages in the amount of R400 000 in respect of his alleged wrongful arrest and detention. The deceased alleged that he was arrested without a warrant by the members of the SAPS, and at the time of his arrest such members had no reasonable or probable cause for arresting him. On 12 December 2012 and while the finalisation of the first action was still pending, the deceased instituted another action in the High Court under case number 71947/2012, claiming damages of R400 000 for malicious prosecution.
On 11 May 2016, and following adjudication on a number of preliminary issues, the High Court awarded the deceased R90 000 in damages occasioned by the unlawful detention of the deceased. In respect of the second action for malicious prosecution, the respondent filed a notice of objection on a point of law. The objection was premised on a submission that the deceased’s claim for malicious prosecution was a duplication of the first action and therefore offends the “once and for all” common law rule that obliges the claimant to claim all damages arising from one cause of action in a single action. The defendant reasoned that the award for the arrest and detention was compensation for all damages arising from the deceased’s arrest, including loss of freedom and prosecution flowing therefrom. In adjudicating the second action of malicious prosecution, the High Court found that there was a significant overlap between the two claims of malicious prosecution and unlawful arrest, even though these claims amounted to two separate causes of action. As such, the High Court upheld the respondent’s point of law and dismissed the applicant’s claim based on the reasons that it offended the “once and for all” rule.
The applicant appealed against the judgment and order of the High Court in the Supreme Court of Appeal. The Supreme Court of Appeal accepted that there was a difference between a claim for malicious prosecution, a claim for unlawful arrest and detention; however, in this case, the Supreme Court of Appeal held that the difference pales into insignificance because the events that gave rise to the deceased claim were the same. It held that the investigations conducted by the police officers formed the basis on which the decisions were taken to arrest, detain, and prosecute the deceased. Further, the Supreme Court of Appeal held that when the deceased filed the first action, it had all the necessary facts to institute a single action to recover damages and compensation for both the unlawful arrest and malicious prosecution. The deceased simply opted not to pursue the two actions simultaneously and was therefore barred from pursuing the second action separately (even though it is a separate cause of action) when considering the “once and for all” rule. Consequently, the Supreme Court of Appeal concluded that the High Court was correct in upholding the respondent’s objection that the claim for malicious prosecution was a duplication of the first claim for unlawful arrest and detention. The Supreme Court of Appeal dismissed the appeal on 15 June 2022.
Before the Constitutional Court, the applicant contends that the High Court and the Supreme Court of Appeal extended the “once and for all” common law rule to be applicable to two causes of action, and in doing so, developed the “once and for all” rule without following the general guiding principles regarding the development of the common law, and specifically that any development would require a deficiency that is at odds with the Bill of Rights.
The respondent submits before the Constitutional Court that the Supreme Court of Appeal and High Court judgments are specific to the facts of the litigants’ case and have no general application. As such, both the High Court and the Supreme Court of Appeal did not develop the once and for all common law rule as argued by the applicant.
In a majority judgment penned by Makgoka AJ (Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Potterill AJ and Theron J concurring) and in considering whether the Constitutional Court’s jurisdiction is engaged, the Court held that it is trite that, ordinarily, the mere misapplication of an accepted common law rule by the lower courts does not raise a constitutional matter, and thus does not engage the Constitutional Court’s jurisdiction. The question therefore arises whether by applying the “once and for all” rule to two causes of action, the Supreme Court of Appeal merely misapplied the law or whether it developed the common law. In answering this question, the Court held that the High Court and the Supreme Court of Appeal adopted an incorrect “legal standard” by applying the “once and for all” rule to facts to which the rule does not apply and this does not amount to a misapplication of law, but an error of law which engages the Constitutional Court’s jurisdiction.
Further, the Court held that the High Court and Supreme Court of Appeal applied the “once and for all” in a manner that permanently prevented the applicant from having the deceased’s claim based on malicious prosecution resolved by the application of law before a court as provided in section 34 of the Constitution. This too, the Court held, engages the Constitutional Court’s jurisdiction.
On the merits, the Court held that the reasoning in the judgments of the High Court and the Supreme Court of Appeal marked a departure from how the “once and for all” rule has always been applied. Once both Courts accepted that there were two causes of action as they did, they should have dismissed the respondent’s objection on that basis, since the “once and for all rule” only applies in respect of a single cause of action. What the Courts did was to apply the “once and for all” rule to the facts to which the rule did not apply, and thereby created an exception to the rule for cases where two or more actions arose from the same facts. This departure from how the rule had always been applied, the Court held, amounts to a development of the common law.
However, such development was not undertaken in accordance with the Constitution as neither the High Court nor the Supreme Court of Appeal embarked on an enquiry as to whether the common law rule suffered any sort of deficiency at odds with the Bill of Rights, and thus necessitated its development. The Constitutional Court in DZ obo WZ set out the general approach to the development of the common law under section 39(2) of the Constitution. In terms of that approach, a court must: (a) determine what the existing common law position is; (b) consider its underlying rationale; (c) enquire whether the rule offends section 39(2) of the Constitution; (d) if it does so offend, consider how development in accordance with section 39(2) ought to take place; and (e) consider the wider consequences of the proposed change on the relevant area of the law. The Supreme Court of Appeal considered none of these factors, nor the applicant’s right in terms of section 34 of the Constitution.
The Court therefore concluded that leave to appeal should be granted and the appeal must succeed. Costs should follow the result, including costs of two counsel. The order of the Supreme Court of Appeal ought to be set aside and replaced with one upholding the appeal with costs, setting aside the order of the High Court, and remitting the matter back to the High Court to adjudicate the applicant’s claim for malicious prosecution.
In a concurring judgment penned by the Chief Justice, he agrees with the conclusion reached by the first judgment that this Court has jurisdiction and the order granted therein. The Chief Justice, however, prefers a shorter and, in his view, simpler approach to dispose of the matter. This is owing to the increased caseload that the Justices of the Constitutional Court carry since the expansion of the Constitutional Court’s jurisdiction and as such, the Chief Justice is of the view that one should adopt a shorter and maybe, simpler, approach or route to the determination of some of the matters that come before the Court.
The first judgment relied on the proposition that in deciding the matter in the way it did, the Supreme Court of Appeal developed the common law on the “once and for all” rule. That may be so but the basis for jurisdiction that the Chief Justice prefers is section 34 of the Constitution. The point is that the High Court refused to adjudicate the applicant’s claim for malicious prosecution on the basis that it should have been included in the first action. The result is that the applicant's deceased husband’s right to have the dispute between himself and the respondent adjudicated in a fair public hearing which is entrenched in section 34 of the Constitution is implicated in this matter. That is a constitutional issue which engages the jurisdiction of the Constitutional Court. During the hearing of this matter the Chief Justice raised with the parties the question whether it could not be said that this Court had jurisdiction because the Supreme Court of Appeal’s decision implicated the applicant’s section 34 right. Counsel did not challenge this proposition. The Chief Justice held that there is no unfairness in deciding the issue of jurisdiction on this basis because the issue was put to Counsel, notwithstanding the fact that the point was raised by the Court mero motu.
On the merits, the Chief Justice held that both the Supreme Court of Appeal and the High Court referred to and quoted authorities that stated the “once and for all” rule applies where the same cause of action applies to both claims. Despite the fact that the High Court was aware that a single cause was the requirement for the application of the “once and for all” rule, it went on to hold that the rule applies to this case. The Supreme Court of Appeal dismissed the applicant’s appeal on the basis that the “once and for all” rule applied to this case. In doing so, both Courts failed to apply the authorities to which they referred and which were binding on them. It is for these reasons that the Chief Justice agrees with the order in the first judgment. .
The Full judgment here