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Minister of Police vs. Gqamane - (03 May 2023)

A party was bound by their pleadings and ordinarily, they would not be allowed to raise a different or fresh case without a due amendment


The Respondent (Mr. Gqamane) was arrested without a warrant for allegedly assaulting the complainant. A charge of assault with intent to commit grievous bodily harm was laid against the respondent. Upon his arrest, he was detained in police cells over the weekend until the Monday and was subsequently released directly. In April 2017, the Respondent instituted a claim for damages of R240 000 in the Regional Court, Port Elizabeth (the trial court), against the appellant arising from allegations of unlawful arrest and detention.

The trial court dismissed the action and found that the jurisdictional requirements to arrest were met. On appeal, the high court reversed the decision of the trial court and ruled in favour of the Respondent. It held that the trial court failed to address the issue of the discretion to arrest, and, this failure caused the trial court to reach a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.

It was trite that, a party was bound by their pleadings and ordinarily, they would not be allowed to raise a different or fresh case without a due amendment. A court was equally bound by those pleadings and should not pronounce upon any claim or defence not made in the pleadings. A court may relax this rule where the issue involves a question of law which emerged fully from the evidence or was apparent from the papers.

Once the high court found that the jurisdictional requirements to arrest the respondent were met, the appellant discharged the onus, which rested on it to justify the arrest. That should have been the end of the matter. Whether or not the discretion was properly exercised cannot be judged based on facts not known at the time, against the standard of what was best in hindsight, based on a standard of perfection. If it was intended to found the case upon an alleged improper exercise of a discretion to arrest, then that ought to have been pleaded unambiguously.

An arrest made in terms of Section 40(1)(q) of Criminal Procedure Act, 1977 explicitly refers to an offence in respect of which violence is an element, while an arrest made pursuant to Section 40(1)(b) of Act, 1977 requires that there be allegations of a commission of a schedule 1 offence. The high court conflated the onus and pertinent questions about the lawful exercise of the discretion to arrest the respondent, which were neither pleaded nor fully canvassed at the trial. Appeal allowed.


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