ph 466 1njthe suprehe court pf south …...ph 466 1njthe_suprehe court pf south africa...

PH 4661NJTHE_SUPREHE COURT PF SOUTH AFRICA (HITMATERSRAND LOCftL DIVISION)In the matter between t —MAGXUNYftNft. Nobect HarrietandTHE MINISTER OF LAW ftND ORDER

CASE NO 195/56575

Plaint if.

/NOTICE IN TERMS OF RULE 3*>J

KINDLY TAKE NOTICE that Pleadings in this matt'efs&Kaving dosed)\ / <'«<* jr

x wthe Defendant is hereby requested to attend a^conference at a

mutually convenient time and place with the object of reaching a agreement of possible ways of curtailing the duration of the

Trial in this action and in particular as to all or any of the matters mentioned in Rule 37(1)(a ) of the rules of the Above Honourable Court.

DATED at JOHANNESBURG on this the S ’

TO : THE REGISTRAR OF THE ABOVE HONOURABLE COURT

day of JANUARY 1993.

NICHOLLS, CAMBANIS,AND SUDANOATTORNEYS FOR PLAINTIFF 23RD FLOOR, KINE CENTRE 1<+1 COMMISSIONER STREET JOHANNESBURG REF : VS/PP/27

- a -

AND TO : THE STATE ATTORNEYDEFENDANTS ATTORNEYS BB8 ROYAL ST.MARY’S BUILDING B5 ELOFF STREET JOHANNESBURGREF : Mr.Bowen/667^/9B/P5

Received copy hereof on this

FOR : DEFENDANT’S ATTORNEYS

S T A A T S P R O K U R E U R

IN THE SUPREME COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION')

Case Number : 92/26572

In the matter between:

MAGXUNYANA. Nobest Harriet Plaintiff

MINISTER OF DEFENCE Defendant

NOTICE OF INTENTION TO AMEND DEFENDANT’S PLEA

BE PLEASED TO TAKE NOTICE that Defendant intends to amend his Plea as

follows:

1. By deleting the citation of the Defendant as "Minister of Law and Order" and

by substituting it with "Minister of Defence".

2. By the addition of the following alternative to paragraph 3 of Defendant’s Plea

(ad paragraph 3 of Plaintiffs Particulars of Claim):

"3.2 Alternatively and in the event of it being found that the Plairuiffwas assaulted/that any physical act/s was/were committed against

the Plaintiff, as alleged or at all, by a member or members of the South African Defence Force, then the Defendant pleads as follows:

3.2.1 In terms of Government Notice No. 13519, Proclamation No. R2242 of 9 September 1991, the Minister of Law and Order in terms of Section 5A(1) of the Public Safety Act, No. 3 of 1953, declared that public disturbance, disorder, riot and public violence were occurring or threatening in inter alia the Tokoza area, as demarcated and described in Government Notice No. 511 of 10 April 1959, as ameiided, as from 9 September 1991. In terms cf Proclamation No. R2243,1991, of 9 September 1991, the Minister of Law and Order in terms of Section 5A cf the Public Safety Act proclaimed certain regulations ("the Regulations' . Proclamations R2242 and R2243 were valid and in force on 8 April 1992.

3.2.2 Regulation 12(1) of the Regulations provides that no civil proceeding shall be instituted agaimt any member of the Cabinet of the Republic cf South Africa or any member of a Security Force by reason cf any act in good faith advised, commanded, ordered, directed or performed by any> person in the canying out of his duties or the exercise of his powers or the performance of his functions in terms of the Regulations as therein more fully provided, with the intent to combat or to prevent public disturbance, disorder, riot or public violence or to maintain or to restore public order or for dealing with any circumstances which in his opinion have arisen or aie likely to arise as a result cf such public distui bance, disorder, riot or public violence or the combating or prevention thereof.

3.2.3

3.2.4

C 3.2.5

3.2.6

c

3.2.7

Page 3

The Defendant is a member of the Cabinet cf the Republic of South Africa.

The member or members of the South African Defence Force, as alleged by the Plaintiff to have assaulted Plaintiff/committed physical acts against the Plaintiff, was a member/were members of a Security Force, as provided for in the Regulations.

The place at Phola Park, Tokoza, where the assault/ physical acts allegedly took place, is a place where the said Proclamations were valid and binding as at 8 April 1992.

The assault cf/physical acts against Plaiittiff was an act/were acts in good faith advised, commanded, ordered, directed or performed by a person or persons in the carrying out of his/their duties or the exercise cf his/ their powers or the peiformance of his/their functions in terms cf the Regulations, as more fully provided in Regulation 12(1).

In the premises the Plaintiff has no cause cf action as alleged and is not entitled to institute the said action."

The Defendant tenders the wasted costs (if any) occasioned by the proposed amendment

and subsequent amendment, save for the costs of opposition thereof.

4

Page 4

BE PLEASED TO TAKE FURTHER NOTICE that unless objection in writing is made

to the proposed amendment within ten (10) days, the Defendant will amend the

pleading in question accordingly.

TAKE NOTICE FURTHER that if no objection in writing be so made, the Plaintiff

shall be deemed to have agreed to the amendment.

Court, the Defendant shall within ten (10) days of the receipt of such objection, apply

to Court on notice for leave to amend and shall set the matter down for hearing.

DATED AT JOHANNESBURG ON THIS 5th DAY OF MARCH 1993.

C

If objection be made within the said period in terms of Rule 28(4) of the Rules of

STATE ATTORNEYDefendant’s Attorneys 888 Royal St. Mary’s Bldg 85 Eloff Street JOHANNESBURG Ref: Mr Bowen/

6674/92/P5 Tel: 29-2961

TO:

AND TO:

C

c

THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

NICHOLLS & CAMBANISPlaintiffs Attorneys 23rd Floor Kine Centre Commissioner Street JOHANNESBURG Ref: VS/PP/27

Received copy hereof on this the .....S:. day of March 1993.

_______________H 2 1 _________________________________

for: PlaintifFs Attorneys

IN THE SUPREME COURT QF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)




and


NOTICE IN TERMS OF RULE 28(5)

TAKE NOTICE THAT:

(a) as the Defendant filed a Notice of Intention to Amend its Plea on 9 March

1993; and

(b) as no objection was made in writing to this said notice of amendment;

the Defendant hereby files the amended pages to its Particulars of Claim.

DATED AT JOHANNESBURG ON THIS 1st DAY OF APRIL 1993.

c

TO:

AND TO:

C

% ________STATE ATTORNEYDefendant’s Attorneys 888 Royal St. Mary’s Bldg 85 Eloff Street JOHANNESBURG Ref: Mr Bowen/

6674/92/P5 Tel: 29-2961

THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG

NICHOLLS & CAMBANISPlaintiffs Attorneys 23rd Floor Kine Centre Commissioner Street JOHANNESBURG Ref: VS/PP/27

Received copy hereof on this the ..Q.... day of March 1993.

for: P la in tiffs Attorneys

WITHOUT PREJUDICE TO RIGHTS

IN THE SUPREME COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)




and


DEFENDANT’S AMENDED PLEA TO PLAINTIFFS PARTICULARS OF CLAIM

1. AD PARAGRAPH 1:

Save to admit that Plaintiff is Nobest Harriet Magxunyana, Defendant has

no knowledge of the remaining allegations contained in this paragraph,

accordingly denies same and puts Plaintiff to the proof thereof.

2. AD PARAGRAPH 2:

Defendant admits the contents of this paragraph.

AD PARAGRAPH 3 :

Defendant denies the contents of this paragraph and puts Plaintiff to the proof

thereof.

3 2 Alternatively and in the event of it being found that the Plaintiff

was assaulted/that any physical act/s was/were committed against

the Plaintiff, as alleged or at all, by a member or members of

the South African Defence Force, then the Defendant pleads as

follows:

3.2.1 In terms of Government Notice No. 13519, Proclamation

No. R2242 of 9 September 1991, the Minister of Law

and Order in terms of Section 5A( 1) of the Public Safety

Act, No. 3 of 1953, declared that public disturbance,

disorder, riot and public violence were occurring or

threatening in inter alia the Tokoza area, as

demarcated and described in Government Notice No.

511 of 10 April 1959, as amended, as from 9 September

1991. In terms of Proclamation No. R2243, 1991, of

9 September 1991, the Minister of Law and Order in

terms of Section 5A of the Public Safety Act proclaimed

certain regulations ("the Regulations"). Proclamations

R2242 and R2243 were valid and in force on 8 April

3.2.2 Regulation 12(1) of the Regulations provides that no

civil proceeding shall be instituted against any member

of the Cabinet of the Republic of South Africa or any

member of a Security Force by reason of any act in good

faith advised, commanded, ordered, directed or

performed by any person in the carrying out of his duties

or the exercise of his powers or the performance of his

functions in terms of the Regulations as therein more

fully provided, with the intent to combat or to prevent

public disturbance, disorder, riot or public violence or

to maintain or to restore public order or for dealing

with any circumstances which in his opinion have arisen

or are likely to arise as a result of such public

disturbance, disorder, riot or public violence or the

combating or prevention thereof.

3.2.3 The Defendant is a member of the Cabinet of the

Republic of South Africa.

3.2.4 The member or members of the South African

Defence Force, as alleged by the Plaintiff to have

assaulted Plaintiff/committed physical acts against

the Plaintiff, was a member/were members of a Security

Force, as provided for in the Regulations.

3.2.5 The place at Phola Park, Tokoza, where the assault/

physical acts allegedly took place, is a place where the

said Proclamations were valid and binding as at 8 April

1992.

3.2.6 The assault of/physical acts against Plaintiff was an

act/were acts in good faith advised, commanded,

ordered, directed or performed by a person or persons

in the carrying out of his/their duties or the exercise of

his/ their powers or the performance of his/their

functions in terms of the Regulations, as more fully

provided in Regulation 12(1).

3.2.7 In the premises the Plaintiff has no cause of action

as alleged and is not entitled to institute the said action.

AD PARAGRAPHS 4. 5. 6. 7 and 8:

Defendant denies the contents of these paragraphs and puts Plaintiff to the

proof thereof.

AD PARAGRAPH 9 :

Defendant admits a demand and a failure or refusal to pay, but pleads that

Defendant is not legally liable to pay the amount claimed or any portion

thereof.

WHEREFORE Defendant prays that Plaintiffs claim be dismissed with costs.

IN THE SUPREME COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)

CASE NO 92/26572


MAGXUNYANA, NOBEST HARRIET Plaintiff

and

THE MINISTER OF DEFENCE Defendant

DEFENDANTS REQUEST FOR FURTHER PARTICULARS

The Defendant requests the following further particulars to the Plaintiff’s

particulars of claim:

1. AD PARAGRAPH 1

1.1 The Plaintiff is requested to furnish the Defendant with:

1.1.1 copies of her identity document and birth certificate;

1.1.2 her address at the time of the incident;

1.2 Is the Plaintiff a South African citizen?

1.3 If not, does the Plaintiff have permanent residence in South Africa or a

work permit to work in South Africa and if so, documentary proof of

same is required alternatively full details thereof.

2

2. AD PARAGRAPH 3

2.1 The Plaintiff is requested to state precisely where in Phola Park she

was assaulted by a member or members of the South African Defence

Force.

2.2 The exact time of the alleged incident is required.

2.3 Was the Plaintiff assaulted inside or outside a building or structure? If

inside any structures, then the full address thereof is requested.

C2.4 How many members of the South African Defence Force assaulted

the Plaintiff?

2.5 Plaintiff is requested to give a description of each of the members

responsible for Plaintiff’s assault in order to enable Defendant to

identify the said member(s).

2.6 Were the members clothed in uniform? If in the affirmative, were they

clothed in:

C

2.6.1 neutria ("browns"); or

2.6.2 camouflage uniforms?

2.7 How many times was the Plaintiff assaulted?

AD PARAGRAPH 4

Plaintiff is requested to state the nature and extent of the following

injuries:

3.1.1 the sprained left hand;

3.1.2 swollen lips;

3.1.3 missing upper front tooth;

3.1.4 bruising on the back;

3.1.5 bruising on the left shoulder;

3.1.6 internal bleeding.

What caused the following injuries:


3.2.2 swollen lips;





What was the nature, extent and duration of the treatment to:


3.3.2 swollen lips;





AD PARAGRAPH 5

Plaintiff is requested to state separately the exact nature, duration and

extent of the following disability:

4.1.1 the inability to bend her back;

4.1.2 the disability to lift objects with the left hand.

What caused the disability to the left hand?

4.3 What caused the disability to the back?

5. AD PARAGRAPHS 6 AND 7

5.1 What is the nature, extent and duration of the pain and suffering?

5.2 What is the nature and extent of the contumelia?

5.3 What is the nature, extent and duration of the disfigurement?

5.4 What caused the disfigurement?

DATED at JOHANNESBURG on this

LJLOWIES Defendant’s Counsels

Defendant’s Attorney888 Royal St Mary’s Building85 Eloff StreetJOHANNESBURGTEL: 29-2961REF: 6674/92/P5

6

TO:THE REGISTRAROF THE ABOVE HONOURABLE COURT JOHANNESBURG

AND TO:NICHOLLS CAMBANIS & SUDANOPlaintiff’s Attorneys23rd Floor, Kine CentreCommissioner StreetJOHANNESBURGREF: MRS C H NICHOLLS

RECEIVED COPY HEREOF ON THE

.......%......DAY OF >|WLY 1993.

Vfor: PLAINTIFF’S'ATTORNEYS

P^ P ' - c t

G.p.-r wa-0192 T.P.H. 25B

BUITEPASIENTE EN/OF ONGEVALLE AFD. « OUTPATIENT AND/OR CASUALTY DEPT.

.HOSPiTAAL* HOSPITAL PASIENT • PATIENT No. 3 3 2 1 4V

FoonPhone No..

S S ff lS L - . . . Q s . t ' f . f f . . . . . . . ., .... 3 1 ... .2,......................... J L . ........................jL fb i

>g -

£ill...............

. . . . . . :. . . . . M l

Huisadres Residential address

Huwelikstaat ^ Geslag Marita! slate........... .....................1.... S e x .....

Ras 5> -. Race............

BeroepOccupation

Geboortedatum Date of birth.......

Naam van persoon verantwoordelik vir betaling van rekening Name of person responsible for payment of account.................

Volgno. Serial No

Sy/Haar adres • His/Her address...............

Naam van werkgewer • Name of employer..

^ dres van werkgewer • Address of employer....................................................................

O Naam van siekefonds S/F Name of sick fund......................................................................................................................................... S/FNo.

•Jaarlikse gesinsinkomste • Annual family income Uit alle bronne From all sources

Broodwinner • Breadwinner.

Vrou • W ife..........................

7 / V /£>-

R ..........................

J t L

Ander afhanklikes • Other dependants....................................................................................... R

‘ Getal persone in gesin (broodwinner ingesluit)Number of persons in household (including breadwinner).

Meld ouderdomme van afhanklikesState ages of dependants..................................................

Totaal • Total

Rede vir afhanklikheid Reason for dependence...... ........................................................................... *

(Minderjariges van 16 jaar en ouer wat selfooderhoudend is, moet uitgesluit word) (Minor children of 16 years and older who y e self-supporting must be excluded)

Plekf '-~ \ Datum van ongeluk/besering r f / j fDate of accident/injury..................... .................................................. Place.. .................................................................

Persoon wat beseerde ingebring het Person who brought in the injured.......

Sy/Haar adresHis/Her address.................................

r \

Sy/Haar handtekening His/Her signature.........

Was beseerde:Was injured:

en voertuig No. and vehicle No.

(i) Onder die invloed van drank? Under the influence of liquor?.

(ii) By sy/haar bewussyn? Conscious?..........................

Geteken: Opnemingsbeampte Signed: Admitting officer.......

Die aard van die pasient se siekte mag vir rekeningdoeleindes vrygestel word. The nature of the patient's illness may be disclosed for accounting purposes.

GetuieW itness...............................................................................................................

GetekenSigned....

Datum Date....

KlagteComplaint.. M EHuidige siekte Present illness.

T.P.H. 25B

SLEGS VIR AFSKEURSTROKIES FOR COUNTERFOILS ONLY

ONDERSOEK/BEHANDELING/VORDERINGEXAMINATION/TREATMENT/PROGRESS

P c / A < o M l

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VOORSKRIF • PRESCRIPTION rpH ',-2

-H O S F IT A A L.H O S F iT A L

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IndeiingClassification

DatumD a‘ e

V oorskrif besqnderhede D etails o' prescription

H oev. uit. C ty . issd.

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“ the v v c c s ••oreq-lv£.£r.5” &re not deletes by the p re s e rv e r this will indicate that the approved generic equivalent m a yb e

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supplied.

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G BOWEN / lu

6674/92/P5

30 March 1993

N.H. MAGXUNYANA / MINISTER OF DEFENCE

i. Information in respect of the appearance of the member(s) who allegedly assaulted the Plaintiff is requested in regard to height, race, general appearance, colour of hair, eyes, build, etc. in the event of Plaintiff being unable to identify the number(s).

ii. Were the member (s) armed, and if so, what were the nature of the arms or implements in their possession ?

iii. Was Plaintiff assaulted with any of these arms or other instruments?

iv. A copy of the birth certificate and identity number of the Plaintiff is requested.

v. In respect of the Plaintiff's disfigurement, are any photo's available, and if so, copies thereof are requested.

MEMO

PLAINTIFF'S FULL NAMES : W MAfj V l / M Y r t f M *

CASE NO. : ° \ Z / 1(9

ADDRESS : f L o i ^ .7 M S I * '

SA CITIZEN OR NOT : L l r * * sU^ )

Nature of injuries $ Vsj j^ c W |H ^ J &C''iSc2> L£ £ irJ^SuDLtir'K/ S H ^ K c s AU- c A u i r t W ^hf ^ *

Date and time of incident : <j /j } ftf. f ") .

Quantum : 77? •

Eve-witnesses :

Other witnesses :

Number of visits to doctor or hospital :

Specify visits to doctor or hospital :(names and venues) *

Employed o, n o t : U h t f R /W /P ,* * *t x r s , /V ^ T O A i . .

Nature of employment : DoAAfcS'MC WD/C locK. .

Income and proof thereof : fL t - H ■ ‘ ®^ f /v/v ' ^ ^ ® f

Current state of injuries :X

If future loss of earnings are claimed, the relevant duration and proof that it was so claimed :

Names of assaulters :

Were criminal charges laid, if so where?

Was an ID parade attended? ^

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MIRANDA )ANE TAYLORPRACTISING ATTORNEY (R.S.A.)

COMMISSIONER CF OATHS ‘ 23rd FLOOR KINE CENTRE

14! COMMISSIONER STREET JOHANNESBURG 2001

o

I!i

Collection Number: AK2702 Goldstone Commission of Enquiry into PHOLA PARK Records 1992-1993 PUBLISHER: Publisher:-Historical Papers, University of the Witwatersrand Location:-Johannesburg ©2012

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