COMBINED SUMMONS

HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

In the matter between:

John Keene - First Plaintiff

Richard Henry - Second Plaintiff

Susanne Blenduif - Third Plaintiff

and

The Minister of Safety and Security [then Charles Nqakula] - First Defendant

and

The Minister of Defence [then Mosiuoa Lekota] - Second Defendant

SUMMONS

To the Sheriff or his Deputy

Inform:

The First Defendant, the Minister of Safety and Security in his official capacity as the Head of the South African Police Service and who will accept service of legal proceedings at the State Attorney, 8rh Floor, Old Mutual Centre, 167 Andries Street, Pretoria.
(hereinafter called "the First Defendant")

and

2. The Second Defendant, the Minister of Defence in his official capacity as the Head of the Defence Force and who will accept service of legal proceedings at the State Attorney, 8TH Floor, Old Mutual Centre, 167 Andries Street, Pretoria.
(hereinafter called "the Second Defendant")

That:

the first Plaintiff, Mr John Keene, hereby institutes action against the First and Second Defendant in which action the plaintiff claims the relief on the grounds set out in the particulars annexed hereto.
(hereinafter called "the First Plaintiff")

and
the second plaintiff, Mr Richard Henry, hereby institutes action against the First and Second Defendant in which action the plaintiff claims the relief on the grounds set out in the particulars annexed hereto.

(hereinafter called "the Second Plaintiff')

and

the third Plaintiff, Ms Susanne Blenduif, hereby institutes action against the First and Second Defendant in which action the plaintiff claims the relief on the grounds set out in the particulars annexed hereto.
(hereinafter called "the Third Plaintiff')

and

Inform the First and Second Defendants respectively that if the defendants wish to defend the action, the defendants shall:

2.1 within 20 (twenty) days of the service on the defendants' of this summons, file with the Registrar of this Court, at Supreme Court Building, Vermeulen Street, Pretoria, notice of the Defendants' intention to defend and serve a copy thereof on the Plaintiffs' attorneys, which notice shall give the Defendants full residential or business address, and also an address (not being a post office box or poste restante) referred to in Rule 19(3) for the service on the defendants' of all notices and documents in the action;

2.2 thereafter, and within twenty days after filing and serving such notice of intention to defend, file with the Registrar and serve on the plaintiff a plea, exception, notice to strike out, with or without a counterclaim.

Inform the Defendants further that if the Defendants fail to file and serve such notice, judgment as claimed may be given against the Defendants without further notice, or, if having filed and served such notice, the Defendants' fail to plead, except, make application to strike out or counterclaim, judgment may be given against the Defendants.

Immediately thereafter serve on the Defendants a copy of this summons and return the original to the Registrar with whatsoever you have done thereon.
Dated at Pretoria on 4^th NOVEMBER 2005

Registrar of the High Court

WEBBER WENTZEL BOWENS

PARTICULARS OF CLAIM

 1. The First Plaintiff is Mr John Keene, an adult male director of the South African National Museum of Military History ("the Museum") situated at 22 Erlswold Way, Saxonwold, Johannesburg and resident at 63 Clulee Road, Linbro Park, Sandton.

2. The Second Plaintiff is Mr Richard Henry, an adult male curator of Armoured Fighting Vehicles and assistant curator of Small Arms at the Museum situated at 22 Erlswold Way, Saxonwold, Johannesburg and resident at 12 Oban Avenue, Blairgowrie, Randburg.

3. The third plaintiff is Ms Susanne Blendulf, an adult female editor of the South African Military History Journal and curator of the Insignia, Memorial Plaques and Postal History Collections at the Museum situated at 22 Erlswold Way, Saxonwold, Johannesburg and resident at 174 Barkston Avenue, Blairgowrie, Randburg.

4. The first defendant is the Minister of Safety and Security in his official capacity as the Head of the South African Police Service ("SAPS") and who accepts service of legal proceedings at the State Attorney, 10^th Floor, North State Building, 95 Market Street, corner Kruis Street, Johannesburg.

5. The second defendant is the Minister of Defence in his official capacity as the Head of the South African National Defence Force ("SANDF") and who will accept service of legal proceedings at the State Attorney, 10^th Floor, North State Building, 95 Market Street, cnr Kruis Street, Johannesburg.

6. The cause of action arose within the jurisdiction of the above Honourable Court.

7. On or about Thursday 13 January 2005, the First, Second and Third Plaintiffs were arrested by members of the SAPS and the Military Police Agency of the SANDF at the Museum at its premises at 22 Erlswold Way, Saxonwold, Johannesburg.

8. On the morning of Thursday, 13 January 2005 a number of members of the SAPS and SANDF arrived at the Museum.

9. Prior to the arrests being made, during the morning and afternoon of 13 January 2005, the Second Plaintiff was questioned in a very hostile and aggressive manner by certain of these persons, namely Captain Fanie Malapo ("Captain Malapo"), a member of the SAPS, and Flight Sergeant Banda, a member of the Military Police Agency of the SANDF and a Major Mashaba at the premises of the Museum, concerning a variety of matters pertaining to the Museum including the serviceability of armoured vehicles at the Museum, and the small arms on display in the Museum and in the weapons store.

10. The First Plaintiff was at home on of 13 January 2005, recuperating from an eye operation which had taken place on 12 January 2005. The First Plaintiff was contacted by concerned staff members of the Museum on 13 January 2005 to report to it. Their concern stemmed from the threatened removal of vehicles from the Museum by members of the SAPS and SANDF.

11. Members of the press arrived at the Museum during the course of 13 January 2005, including reporters from the South African Broadcasting Corporation ("SABC").

12. During the course of 13 January 2005 the Minister of Arts and Culture, Dr Pallo Jordan ("the Minister"), the Director General of Arts and Culture, Professor I Mosala ("the Director General"), and the Deputy Director General of Arts and Culture, Mr Themba Wakashe ("the Deputy Director General") also arrived at the Museum. The Director General and the Deputy Director General were present whilst the arrests of the Plaintiffs were effected.

13. The Second Plaintiff was arrested at or about 16h40 by Flight Sergeant Banda, who stated that the reason for his arrest was that Second Plaintiff was in possession of stolen military property. 

14. On First Plaintiff's arrival at the Museum at or about 17H00 the Minister informed the First Plaintiff that the Museum was in possession of military material in serviceable condition, which was impermissible. The First Plaintiff explained to the Minister that the function of the Museum is to collect military heritage material in a serviceable condition and to maintain this material in the condition in which it was received.

15. The Director General advised the First Plaintiff not to enter the Museum as arrests were being made. The First Plaintiff felt that as the Director of the Museum, it was his responsibility to find out what was happening and whether any of his staff were being arrested.

16. The First Plaintiff accordingly entered the Museum at approximately 17h20 and was approached by Flight Sergeant Banda who, after ascertaining his identity, placed him under arrest. The Third Plaintiff was arrested shortly thereafter on the premises of the Museum by a female member of the SAPS.

17. The First Plaintiff was advised by Captain Malapo that the arrests had been made because the Museum was in unlawful possession of military material which should have been destroyed. Captain Malapo ignored the First Plaintiff's explanation that the Museum's collection was fully documented, and that all the equipment made available to the Museum had been properly accounted for.

18. Captain Malapo informed the First Plaintiff that the SAPS were going to confiscate the small arms collection at the Museum as it contained serviceable weapons. Captain Malapo ignored the First Plaintiff's explanation that it was common practice for military museums to keep weapons in a serviceable condition, particularly for study and preservation purposes, and that all small arms were lawfully possessed by the Museum and were properly documented.

19. Captain Malapo accused the Museum of being in possession of weapons without permits. The First Plaintiff informed Captain Malapo that the Museum was accredited by the Commissioner of the SAPS as an Official Institution which rendered the Museum exempt from licensing in terms of the Firearms Control Act 60 of 2000. 

20. Captain Malapo's explanation of the Third Plaintiff's arrest was that "she spoke too much".

21. Captain Malapo and Flight Sergeant Banda were confrontational and aggressive in their attitude to the Plaintiffs.

22. The Plaintiffs' were handcuffed on the Museum premises by members of the SAPS. The press photographers present at the Museum, took photographs of the events described above, including the arrest and handcuffing of the Plaintiffs.

23. The handcuffing of the First Plaintiff was televised by the SABC on Thursday, 13 January 2005, on the 19h00 news bulletin.

24. Before the Plaintiffs were taken by Captain Malapo and Flight Sergeant Banda to Parkview police station to be formally charged, the First Plaintiff's attorney, Mr Barry Whitter arrived at the Museum and was denied permission to consult with the First Plaintiff in an aggressive manner by Captain Malapo. Such refusal was unlawful and in contravention of First Plaintiff's rights in terms of section 35(2)(b) of the Constitution. Thereafter, at about 18h30 Captain Malapo and Flight Sergeant Banda transported the Plaintiffs to the Parkview Police Station.

25. From Parkview police station the Plaintiffs was transported in two SAPS vehicles to Kameeldrift police station in Pretoria ("Kameeldrift") at about 20h00. They were driven to Kameeldrift at a speed in excess of the speed limit. A tyre on one of the SAPS vehicles burst on the way. The tyre had to be changed in the emergency lane of the highway.

26. At Kameeldrift, the Plaintiffs were taken into the charge office and told by a member of the SAPS on duty there to stand in a corner and keep quiet. 

27. The Plaintiffs were transferred to cells during the evening at about 22h00, which were filthy, unhygienic and smelled of urine.

28. The First Plaintiff had undergone surgery to his right eye during the hours 19h00 to 22h00 on 12 January 2005. He had been told by the surgeon who performed the operation that as part of his recovery, he needed to lie flat on his back for at least 24 hours after the operation and administer his medication at two hourly intervals. At the Museum's premises Captain Molapo had prevented First Plaintiff from administering his eye-drops, after his arrest. The members of the SAPS on duty at Kameeldrift also refused to allow the First Plaintiff to administer his medication, and to lie down. The reason offered for the refusal by the members of the SAPS was that the medication could be poison and that they did not want to be responsible for the death of a criminal. When he was transferred to a cell First Plaintiff did not lie down but sat, as he feared exposing his eye to more infection if he lay down, having regard to the unhygienic condition of his cell.

29. As a result of the aforesaid conditions of his detention First Plaintiff's retina in his right eye became detached during the evening of 13 January 2005, during the course of detention at Kameeldrift. Requests were repeatedly made during the evening to members of the SAPS by the First Plaintiff's family to summon the District Surgeon to examine the First Plaintiff. The SAPS made no visible attempt to do so, but claimed that the District Surgeon was coming. The District Surgeon did not come to treat First Plaintiff.

30. At approximately 01h10 on the morning of Friday 14 January 2005, Dr Ismail, who had been brought to the police station by First Plaintiff's attorney, examined the First Plaintiff and summoned a Netcare ambulance. The Netcare paramedics attended to the First Plaintiff and discovered that his blood pressure was so high that he stood the risk of a stroke. The First Plaintiff was lifted onto a stretcher and an oxygen mask was placed over his face. A member of the SAPS present shackled the First Plaintiff's right leg to the stretcher. The First Plaintiff was accompanied in the ambulance by a member of the SAPS.

31. The First Plaintiff was taken to the Pretoria Eye Institute, where he arrived at approximately 03h20 on the morning of Friday, 14 January 2005, where a doctor performed a second operation to the First Plaintiff's right eye at about 13h00. This operation turned out to have been a failure.

32. The First Plaintiff was kept shackled to the bed at the Pretoria Eye Institute with leg irons, the shackles only being removed while he was on the operating table.

33. On the morning of Friday 14 January 2005 the Second and Third Plaintiffs were transported by members of the SAPS in a SAPS vehicle to the Randburg Magistrates Court.

34. Shortly after arriving at the Randburg court, the Second and Third Defendants were transported to the Johannesburg Magistrates Court by members of the SAPS, where they were advised by Mr Anil Singh, the legal representative for the Department of Arts and Culture, that the State Prosecutor had declined to prosecute.

35. The Second and Third Plaintiffs were released from the custody of the SAPS at the Johannesburg Magistrates Court at or about 14h00 on 14 January 2005, after the State Prosecutor declined to prosecute.

36. The First Plaintiff was released from the custody of the SAPS after his operation at the Pretoria Eye Institute on 14 January 2005 at or about 18h00. Only then were the shackles removed from him. Thereafter, the First Plaintiff remained at the Pretoria Eye Institute, overnight.

37. The members of the SAPS and SANDF referred to in these particulars of claim all acted intentionally, unlawfully and in the course and scope of their employment, respectively with the South African Police Services and the SANDF, and within that capacity and within the scope of their authority as such when effecting the unlawful arrest and detention of the Plaintiffs. These members of the SAPS and SANDF acted jointly and in concert with each other.

38. Damages incurred by the First Plaintiff

As a result of the unlawful arrest and detention during the 13 and 14 January 2005, the First Plaintiff has suffered damages as follows: 

38.1 R124 660.97 in respect of past medical costs and hospital expenses arising from continuing treatment of his right eye calculated as follows: 

38.2 Future medical costs and hospital expenses

R100 000.00 in respect of future medical costs and anticipated future medical expenses in respect of treatment of his right eye.

38.3 Pain and suffering and loss of enjoyment of amenities of life

38.3.1 R300 000.00 for loss of enjoyment of amenities of life arising from the detachment of the First Plaintiff's retina on 13 January 2005, and the resultant permanent damage to Plaintiff's right eye, being the general loss of vision in his right eye, that has reduced his ability to read, drive and target shoot, and has prevented him doing any technical work or working with tools, which was an aspect of his work which he enjoyed doing as a hobby;

38.3.2 R100 000.00 for pain and suffering, in respect of his right eye, arising from the interruption in the treatment of his right eye on 13 January 2005;

38.4 Damages to motor vehicle

R3 653.70 in respect of damages to First Plaintiff's motor car (Registration number JYB 983 GP), resulting from an accident on or about 17 May 2005, which occurred whilst he was driving the vehicle, which accident was caused by the loss of vision in his right eye. Such damages represent the diminution of the market value of the vehicle arising from damages to the right front fender, the right rear parking light, and the front bumper cover.

38.5 Unlawful detention

R500 000.00 general damages as a result of the deprivation of his liberty and contumelia, arising from his unlawful arrest and detention.

39. Damages incurred by the Second Plaintiff

Second Plaintiff has suffered general damages in the amount of R250 000.00 as a result of the deprivation of his liberty and contumelia suffered as a result of his unlawful arrest and detention.

40. Damages incurred by the Third Plaintiff

Medical expenses

40.1 As a result of her unlawful arrest and detention, the Third Plaintiff has suffered from post-traumatic stress disorder. She has incurred damages, comprising medical expenses, in the amount of R1 458.00, in respect of the treatment of her post-traumatic stress disorder calculated as follows:

40.2 Loss of enjoyment of amenities of life

Third Plaintiff has suffered general damages of R250 000.00 as a result of the temporary loss of the enjoyment of the amenities of life, in that her powers of concentration and her ability to think rationally were reduced by the post-traumatic stress she suffered as a result of her unlawful arrest and detention, the consequences of which include:

40.2.1 her work on her Masters Dissertation with the University of South Africa on the role of women in war work in South Africa, during the First World War, was delayed, the consequence of which is that her completion of the degree will be delayed a full academic year;

40.2.2 Third Plaintiff's ability to edit the latest issue of the South African Military History Journal, of which she is the Editor, was negatively affected and as a consequence it was published late.

40.3 Unlawful detention

Third Plaintiff has suffered R250 000.00 general damages as a result of the deprivation of her liberty and contumelia arising from the unlawful arrest and detention.

41. The First and Second Defendants are jointly and severally liable to pay such damages to the respective Plaintiffs, the one paying the other to be absolved.

42. On 30 June 2005 notice of the Plaintiffs' intention to institute these proceedings were given to the First and Second Defendants in terms of section 3(1) and (2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. A copy of this notice is attached marked "N1".

WHEREFORE Plaintiffs pray for judgement against the Defendants for:

(a) To the First Plaintiff payment in the total sum of R1 128 314.67 by the First and Second Defendants, in their official capacities, they being jointly and severally liable, the one paying the other to be absolved; and

(b) interest on the amount of R1 128 314.67 at 15,5% per annum calculated from date of demand (30 June 2005) to date of final payment;

(c) To the Second Plaintiff payment in the amount of R 250 000.00 by the First and Second Defendants, in their official capacities, they being jointly and severally liable, the one paying the other to be absolved; and

(d) interest on the amount of R 250 000.00 at 15,5% per annum calculated from the date of demand (30 June 2005) to date of final payment;

(e) To the Third Plaintiff payment in the total sum of R 501 458.00 by the First and Second Defendants, in their official capacities, they being jointly and severally liable, the one paying the other to be absolved; and

(f) interest on the amount of R 501 458.00 at 15,5% per annum calculated from the date of demand (30 June 2005) to date of final payment;

(g) costs of suit;

(h) further and/or alternative relief.

Dated at JOHANNESBURG on 2^nd NOVEMBER 2005.

Moray Hathorn

WEBBER WENTZEL BOWENS

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