IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN (CASE NO.: 11479/2022 In the matter between: NICO ERIK HEERSCHAP Plaintiff and MINISTER OF POLICE First Defendant NATIONAL COMMISSIONER OF POLICE ‘Second Defendant PROVINCIAL COMMISSIONER OF POLICE, WESTERN CAPI Third Defendant THE HEAD; DIRECTORATE FOR PRIORITY CRIME INVESTIGATION Fourth Defendant THE FIRST DEFENDANT'S FIRST SPECIAL PLEA THE FIRST DEFENDANT HEREBY raises the following first special plea 4. The Plaintiff claims inter alia the following: 4.1. Under claim 1, R1 030 000 comprising funeral casts and “damages, present and future™ flowing from the death of the Plaintiffs father on 8 July 2019, Page 1 of 271.2. Under claim 3, R3 000 000 for general damages flowing from the “past and future psychological pain and suffering, discomfort, loss of amenities, emotional shock and traums’ flowing from the death of the Plaintiff's father on 8 July 2019. 2. The Plaintiff's summons was only served on the First Defendant on 8 July 2022, which is more than three years after the date on which the Plaintiff's claim arose. 3. Accordingly, the Plaintiff's claims in this regard have prescribed by operation of section 14(d) of the Prescription Act, 1969. WHEREFORE THE FIRST DEFENDANT PRAYS THAT ITS FIRST SPECIAL PLEA BE UPHELD AND THAT PLAINTIFF'S CLAIM AGAINST IT BE DISMISSED WITH costs. Page 2 of 27THE FIRST DEFENDANT'S SECOND SPECIAL PLEA THE FIRST DEFENDANT HEREBY raises the following second special plea: 1 Under claim 2, the Plaintiff claims R5 000 000 in damages for “the inaction by the defendants in causing the termination of the plaintiff out of the SAPS” 2. On 31 August 2020, the Ptaintiff was discharged from the South African Police Services as a result of “progressive incapacity and poor prospects of functional incapacity’ 3. _ Inthe letter addressed to him, informing him of that decision, the Plaintiff was pertinently invited to address representations challenging the decision to wr Cone om ple 4. ‘The Plaintiff failed to do so. we’ 5. Accordingly, through his failure to challenge the decision, the Plaintiff jitulated in the decision. co “ ye yam go WHEREFORE THE FIRST DEFENDANT PRAYS THAT ITS SECOND SPECIAL ye PLEA BE UPHELD AND THAT PLAINTIFF'S CLAIM AGAINST IT SE DISMISSED | | | WITH COSTS. ww | discharge him. Page 3 of 27THE FIRST DEFENDANT'S THIRD SPECIAL PLEA THE FIRST DEFENDANT HEREBY raises the following third special plea: 1, Under claim 4, the Plaintiff claims R9 030 000 in Constitutional damages, in the alternative to claims 1-3. 2. In Thubakgale end others v Ekurulen! Metropolitan Municipality and others 2022 (8) BCLR 985 (CC), at paragraphs 40-42, the Constitutional Court (per Majiedt J) explained when Constitutional damages might be an appropriate remedy: “Courts are under an obligation in terms of section 38 of the Di z by 1© who cea right inthe: Rights that has been infringed or threatened, and __this_may inglude constitutional damages. This Court in Fos considered the meaning of appropriate relief contemplated in section 7(4)(a) of the interim Constitution, which contained similar wording to section 38, The majority said that ‘\alppropriate relief will in essence be relief that is required to protect and we enforce the Constitution’. In that case, the applicant sought constitutional damages in addition to common law damages (delictual damages) for an assault perpetrated against him by the police. After a comprehensive excursus on foreign jurisprudence, this Court observed that il is preferable, for the A present, to refer to the appropriate relief envisaged by section C 74) merely gs 9 2 constitional remedy. And Said ii. Court, Page 4 of 27and enforce the Constitution’. I{ may include @ declaration fights, an inferdict, a mandamus or relief of a different nature to ensure the protection and enforcement of enshnned rights for ‘as jong as the remedy opted for by @ court protects and ‘enforces the Constitution, Courts are required to be innovative in fashioning new remedies to meet this constitutional obligation. {emphasis added} 3. The Plaintiff fails to plead any facts justifying the award of Constitutional damages where an Aquilian action for damages lies. 4 Inthe circumstances, the Plaintiff's claim for Constitutional damages is bad in taw. WHEREFORE THE FIRST DEFENDANT PRAYS THAT ITS THIRD SPECIAL PLEA BE UPHELD AND THAT PLAINTIFF'S CLAIM AGAINST IT BE DISMISSED WITH costs. Page § of 27THE FIRST DEFENDANT'S PLEA OVER THE FIRST DEFENDANT HEREBY pleads over the merits of the Plaintiff's particulars of claim, dated 7 July 2022, as follows: AD PARAGRAPH 1 4. The First Defendant notes: 1.1. the identity of the Plaintiff. / 4.2. that the Plaintiff is presently employed as a “second-hand car salesman”. 2. The First Defendant admits that: 2.1. the Plainti was previously employed by the South African Police Services (SAPS). JS 2.2, during his employment by SAPS, the Plaintiff was deployed within the Fourth Defendant, in its Assets and Fraud Division. Page 6 of 272.3, the Plaintiff's persal number is c4se9002 3. The First Defendant bears no knowledge as to the remainder of the allegations in this paragraph. Accordingly, the Plaintiff is put to the proof thereof. q . 0 AD PARAGRAPHS 2-5 4. The First Defendant admits the allegations in these paragraphs. J AD PARAGRAPH 6 5 Save for alleging that the Plaintiff was employed by the Fourth Defendant, the First Defendant admits the allegations in this paragraph, AD PARAGRAPH 7 6. The First Defendant notes the allegations in this paragraph. AD PARAGRAPHS 8-9 7. The First Defendant admits that this Honourable Court has jurisdiction. S 8 However, the First Defendant denies that it is domiciled within this Honourable 4 Court's jurisdiction, Page 7 of 27AD PARAGRAPH 10 9. The First Defendant notes the allegations in this paragraph. AD PARAGRAPH 11 40. The First Defendant admits the allegation in this paragraph. JS AD PARAGRAPH 12 44. The First Defendant admits the allegation in this paragraph. J AD PARAGRAPH 13 12. The First Defendant notes the allegations in this paragraph. 13. The First Defendant pleads that: 43.1. The Plaintiff was required, as part of his official duties, to also attend to investigations that did not pertain to or involve Mr Nafiz Modack. Conte\ 1432. The Plaintiff expended excessive amounts of time upon the investigation into Mr Nafiz Modack, at the expense of his other ongoing matters. it No Gi ur & Oe Sh (? 6. puoditel peels On" weeAD PARAGRAPH 14-17 44. The First Defendant bears no knowledge as to the allegations in these paragraphs. Accordingly, the Plaintiff is put to the proof thereof, uel Crm whe . C 1 nao ake 45. The First Defendant pleads that any unlawful conduct perpetrated by Mr Nafiz Modack against the Plaintiff was not as a result of the Plaintiff's investigation into him, but as a result of the following: 15.1.| During his employment with the SAPS, in breach of the SAPS' internal employment poficies, the Plaintiff was unlawfully conducting business as @ second-hand car dealer, under the name and style of “Heerschap Motors", during the hours when he was required to be attending to his official duties. wt? plavt we 45.2. The Plaintiffs business operated in competition with Mr Nafiz und gem 48.3, The Plaintiff abused and exploited his official position in order to Modack. forge, foster and sustain ongoing relationships with individuals, the dentities of whom are all unknown to the First Deferidant, that are employed with the major retail banks across the Republic in respect Dever Page 9 of 27of repossessed motor vehicles. 16.4. _ In particular, on § October 2016, Mr Nafiz Modack deposed to an affidavit in which he complained of the Plaintiff's unlawful / AD PARAGRAPH 18 ue 46, The First Defendant bears no knowledge as to the allegations that: 16.1. _ the Plaintiff eceived an SMS threatening the Plaintiff's family. 162. _ MrBilly Swanepos! also received an SMS threatening his family 47. The Plaintiff failed to attach a copy of the alleged SMS. ( cor Ur 18. Tha First Defendant pleads: jo, oe s 18.1. A docket for intimidation was opened by the Plaintiff on 22 Novernber 2046. It is still under investigation. t 182. On 15 May 2018, the docket was referred to the office of the Director of Public Prosecutions (DPP). Page 10 of 2718.3, On 15 August 2022, the docket was booked-out to Lt Colonel Bailey. 16.4. The matter is currently with the Specialised Commercial Crime Court together with ather dockets against Mr Nafiz Modack. 18.5. The DPP (per Adv. Govender) is in the process of drafting @ charge sheet. 49. The First Defendant pleads further that: 19.1. The risk of physical harm to the Plaintiff is incidental to his employment and his official duties. 719.2 ‘The Plaintiff was exposed only to potential risk during the course of his investigations into Mr Nafiz Modack in the period 2016 until 2049. AD PARAGRAPH 19 20. The First Defendant bears no knowledge as to whether a final protection order was granted against René Smit, or the scope of Such order if it exists. 24. The First Defendant admits that a risk assessment was conducted on the Plaintiff during December 2018, in this regard, the First Defendant pleads: Page 11 of 27 Ne.21.1 The risk assessment was conducted at the behest of the Westem Cape office of the Fourth Defendant. 21.2. During the Plaintiff's intérview as part of the aforesaid risk assessment, the Plaintiff (es well as one Warrant Officer Riaan Fourie) that they had not received any direct threats but were only potentially exposed fo threats in the course of tit investigation into Mr Nafiz Modack. : » pet Av) wy & vo as A feedback report, dated 27 December 2018, was compiled. e 21.4, The feedback report records that: 21.4.1. Mr Nafiz Modack, given the histary of his past conduct, might resort to intimidation tactics In an effort to distract the focus of the investigators. 21.4.2. There is a possibility that Mr Nafiz Modack can revert to violent tactics if prosecution pf these cases deems to be ws 0 * yy) \ seo cunt aM co 22. In respect of the Plaintiff's allegation that ca Nafiz Modack was +} with wr the possession of an illegal firearm, the First Defendant pleads: 4 “ Page 12 of 27pul 22.1, There was an incident relating to 2 white BMW 750) that was seized by the Plaintiff as per Commercial Crime Investigation Unit Inquiry © Goes. 04/09/2016, on 8 September 2016. oa Olige licens aw shy 22.2. The BMW allegedly belonged fo Mr Nafiz Modack. (a Row -— bela oe ea clolime” , yor 22.3, Inside the cubbyhole of the white BMW, there was an unattended dey), dus ot . give that belonged to Mr Nafiz Modack which was seized by the / Piaintifi. lao ( 22.4. It is not clear whether Mr Nafiz Modack was charged on the firearm matter as there is no record in terms of a case docket to that effect, Co only the above mentioned inquiry. / HO erro —> Gyno weal AD PARAGRAPH 20 23, Save for admitting the content of annexure “NEHS", the First Defendant denies the remainder of the allegations in this paragraph, AD PARAGRAPH 21 24. The First Defendant admits the murder of the Plaintiff's father as well as the content of annexure "NEH". \ a \ Page 13 of 2725. The First Defendant denies the remainder of the allegations in this paragraph. In amplification, the First Defendant pleads that: 25.1. in the wake ofthe murder of the Piaintif’s father, an updated threat and tisk assessment was conducted and an updated report was delivered monn Vet kz, 25.2. The First Defendant was disabled in its ability to implement any safety measures from 29 July 2019 as the Plaintiff failed to return to duty. —_—_—_—_— ~ very 2 AD parities 22 week, Qry 26, The First Defendant notes the Plaintiffs submission. hen be AD PARAGRAPH 23 h oll wteshv, 27. The First Defendant bears no knowledge as to the allegation in this paragraph. Accordingly, the Plaintiff is put to the proof thereof. AD PARAGRAPH 24 28, The First Defendant pleads: Page 44 of 2728.1 28.2. Colone} Enus is the Unit Commander of the erstwhile Anti-Corruption Unit (which is known as the Serious Corruption investigation Unit). A criminal investigation was conducted by the Anti-Corruption Unit against the Plaintiff, as per Cape Town Central Organised Crime Inquiry 27/08/2016. 28.2.1, 28.2.2 28.2.3, 28.24. 28.2.5, The complainant in that inquiry was Mr Nafiz Modaok, not Ms Rene Smit. The latter was only one of the witnesses in the matter. The charge made by Mr Nafiz Modack agains! the Plaintiff was that of corruption. ‘Mr Nafiz Modack complained that the Plaintiff was in the business of selling moter vehicles that he bought from auctions. ‘Mr Nafiz Modack complained that the Plaintiff allegedly saw Mr Nafiz Modack as competition and wanted to drive him out of business by laying charges against him. Mr Nafiz Modack also complained that the Plaintiff had a Page 15 of 27material conflict of interest emanating from the Plaintiffs: position in the Bank and Asset Fraud Unit, thus possessing first-hand information about repossessed vehicles and houses that he used to his advantage and to further his business interest. 28.3. The First Defendant denies that “nothing came of the case” 28.3.1 The matter was referred to the DPP, who declined to prosecute and recommended thet disciplinary steps be taken against the Plaintiff. * v 2 NW 28.3.2, No disciplinary measures were taken against the Plaintiff at the time. ne AD PARAGRAPH 25 29. The First Defendant bears no knowledge as to the allegation in this paragraph. Accordingly, the Piaintif is pul to the proof thereof, AD PARAGRAPH 26 30. The First Defendant repeats the contents of paragraph 17 above. Page 16 of 2731, The First Defendant bears no knowledge as to the alleged “dear with alleged accessory to Mr Nafiz Modack. Accordingly, the Plaintiff is put to the proof thereof, AD PARAGRAPH 27 32. The First Defendant denies the allegations in this paragraph. 33. In amplification, the First Defendant pleads that: 33.4 if of a potential risk-to the Plaintiff emanating from his investigation Into f Mr Nafiz Madack. 33.2. In the wake of the murder of the Plaintiffs father, steps were taken to address the risk to the Plaintiff that had then materialised. YY 33.3.) ‘The First Defendant was disabled in its ability to implement any safety measures from 29 July 2019 as the Plaintiff failed to retum to duly. 33.4. The threat and risk assessment, which was prepared pursuant to a concer raised by the Plaintiff, is one of the steps tawards Page 17 of 27considering and, i necessary, implementing the appropriate protection measures. AD PARAGRAPH 28 34. The First Defendant admits the death of the Plaintiff's father and the content of annexure “NEH7" 35. The First Defendant denies the remainder of the allegations in this paragraph. AD PARAGRAPH 29 36. The First Defendant pieads that the Plaintiff was discharged from ‘SAPS on grounds of medical unfitness with effect from 31 August 2020 ‘as a result of the psychiatric condition(s), not arising from the Plsintiffs] performance of [his] official duties." 37. The Plaintiff was specifically and pertinently informed of his right to challenge that decision, and the Plaintiff failed to do so. 38. The First Defendant denies the remainder of the allegations in this paragraph. Page 18 of 27AD PARAGRAPH 30 ‘The First Defendant bears no knowledge as to the allegation in this paragraph. 30, Accordingly, the Plaintiff is put to the proof thereof. AD PARAGRAPH 31 40. The First Defendant denies the allegation in this paragraph. AD PARAGRAPH 32 41. The First Defendant is not in @ position to admit or deny the allegations in this, paragraph since most of the Plaintiff's erstwhile superiors are-no longer in the employ of SAPS and one of those is presently on incapacity leave. 42. Accordingly, the Plaintiff is put to the proof of the allegations in this paragraph. 43. The Fist Defendant pleads that it is common practice that absence from work should be accounted for, whether through annual leave, sick leave or any other reason. AD PARAGRAPH 33 44. The First Defendant pleads that the Plaintiff was discharged from SAPS on grounds of medical unfitness with effect from 31 August 2020 “es a result of Page 19 of 27tha psychiatric condition(s), not arising from {the Plaintiff's) performance of his} official duties." 45. The First Defendant denies the remainder of the allegations in this paragraph. AD PARAGRAPH 34 48, The First Defendant admits that it is @ precautionary measure to have the firearm removed from a member that is diagnosed with post-traumatic stress disorder (PTSD). AD PARAGRAPH 35 47. The First Defendant admits the content of annexure "NEH8” 48. The First Defendant bears no knowledge as to the remainder of the allegations in this paragraph. Accordingly, the Plaintiff is put to the proof thereof, AD PARAGRAPH 36 48. The First Defendant admits the content of “NEH9". 50. The First Defendant admits that individual that perpetrated the murder of the Page 20 of 27Plaintiff's father pleaded gully to the charge of murder, was accordingly convicted and sentence to a custodial sentence of twenty years. 51 Mr Nafiz Modack has alsa been charged with the murder of the Plaintiff's father. That matter is awaiting consolidation with other matters involving Mr Nafiz Modack as well as a racketeering certificate and a date for hearing in the High Court of South Africa. AD PARAGRAPH 37 52. The First Defendant pleads that the object of the police service is framed in section 205(3) of the Constitution, namely: “The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and fo uphold and enforce the law.” 53. The First Defendant's duties are framed in section 206(1) of the Constitution: “206 Political responsibility (1) A member of the Cabinet must be responsible for policing and must determine national paiicing palicy after consulting the provincial governments and (aking into account the policing peeds and prionties of the provinces as determined by the provincial executives." 54. The First Defendant pleads that there is no “constitutional duty” resting on the SAPS to “protect their own employees and to take reasonable steps fo do Page 21 of 27that’. 55. in any event, the First Defendant denies that it breached any of its duties. 56. Save as aforesaid, the First Defendant denies the allegations in this paragraph. AD PARAGRAPH 38 57. The First Defendant denies the allegations in this paragraph. AD PARAGRAPH 39 58, Section 38 of the Constitution, which is headed “enforcement of rights", provides: “Anyone listed in this section has the right to approach @ competent court, alleging that a right in the Bill of Rights has been infringed or threatened. and the court may grant appropriate relief, including & deciaration of rights. The persons who may approach a court are— a} (6) (oh @ (e) anyone acting in their own interest; anyone acting on behalf of enoiher parson who cannot ct in their own name; ‘anyone acting as a member of, or in the interest of, 8 group or class of persons; anyone siting in the pubiic interest, and ‘an association acting in the interest of its members." 59. The First Defendant denies the allegations insofar as they are inconsistent with Section 38, as excerpted above. Page 22 of 27AD PARAGRAPH 40 60 The First Defendant admits the allegations in this paragraph only insofar as they are consistent with the Constitutional provisions referred to therein. AD PARAGRAPH 41 61. The First Defendant admits the allegations in this paragraph only insofar as they are consistent with the statutory provisions referred to therein. AD PARAGRAPH 42 62. The First Defendant denies the allegations in this paragraph, AD PARAGRAPH 43 63, The First Defandant denies the allegations in this paragraph. AD PARAGRAPH 44 64. The First Defendant denies the allegations in this paragraph. AD PARAGRAPH 45 65. The First Defendant denies the allegations in this paragraph. Page 23 of 27AD PARAGRAPH 46 66. The First Defendant bears no knowledge as to the allegation in this paragraph. Accordingly, the Plaintiff is put to the proof thereof. AD PARAGRAPH 47 67. The First Defendant bears no knowledge as to the allegation in this paragraph. Accordingly, the Plaintiff is put to the proof thereof. AD PARAGRAPH 48 68. The First Defendant denies the allegations in this paragraph. AD PARAGRAPH 49 69. The First Defendant admits that the Plaintiff was employed as a warrant officer. 70. The First Defendant admits the content of annexures "NEH10" and “NEH41" AD PARAGRAPH 50 71, The First Defendant bears no knowledge as to the allegation in this paragraph. Page 26 of 27‘Accordingly, the Piaintif is put to thie proof thereof. AD PARAGRAPH 51 72, The First Defendant denies the allegations in this paragraph. AD PARAGRAPH 52 73. The First Defendant notes the allegation in this paragraph. AD PARAGRAPH 53 74, The First Defendant denies the allegations in this paragraph. AD PARAGRAPH 54 75. The First Defendant denies that the Plaintiff is entitled to Constitutional damages, whether in the allernative or at all 76. \namplification, the First Defendant pleads that Constitutional damages do not constitute a surrogate to compensation under the actio lex Aquila. AD PARAGRAPH 55 77. The First Defendant denies the allegations in this paragraph. Page 25 of 27WHEREFORE THE FIRST DEFENDANT PRAYS FOR JUDGMENT IN ITS FAVOUR AND THAT PLAINTIFF'S CLAIM AGAINST IT BE DISMISSED WITH costs. DATED at CAPE TOWN on this IST day of NOVEMBER 2022. stDefendant's counsel THE STATE ATTORNEY (First Defendant's attorneys) Per: Yauco Ms R Naidoo 4th Floor 22 Long Street CAPE TOWN Ref: 2604/22/P 17, Tet: (021) 441 9228 E-mail: RNaidoo@justice gov.za Page 26 of 27To: And to: THE REGISTRAR OF THE ABOVE HONOURABLE COURT Cape Town JULIAN KNIGHT & ASSOCIATES ING (Plaintiff's attomeys) 69 Rigel Avenue, Waterkloof Ridge Pretoria Tel: (012) 346 1463 / 6852 E-mail: knights@mweb.co.2a GLENN ROOSEBOOM ING 7 Floor Mandela Rhodes Building Comer of Wale and Burg Streets CAPE TOWN Tel: (021) 410 8045 Fax: (086) 667 6764 Page 27 of 27