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[2015] ZAWCHC 181
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James v Minister of Correctional Services (795/2014) [2015] ZAWCHC 181 (1 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 795/2014
DATE:
01 DECEMBER 2015
In
the matter between:
NASSIERA
JAMES
.....................................................................................................................
Plaintiff
And
MINISTER
OF CORRECTIONAL
SERVICES
...................................................................
Defendant
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
24 November 2015
Judgment
delivered: 1 December 2015
JUDGMENT
BINNS-WARD
J:
[1]
The plaintiff claims compensation from the
Minister of Correctional Services for the damages she has allegedly
sustained as a consequence
of contracting tuberculosis while
incarcerated in Pollsmoor Prison during 2009. Summons in the
action was served on the defendant
on 21 January 2014. The
institution of proceedings had been preceded by notice of the claim
by the plaintiff’s attorneys,
purportedly given in terms of s 3
of the Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002 (‘the
Institution of Proceedings Act’).
The notice was given to the defendant on 16 September 2013.
[2]
The defendant pleaded three special
defences in the action; viz. (i) extinctive prescription;
(ii) alleged non-compliance
by the plaintiff with the notice
requirements in terms of the Institution of Proceedings Act and (iii)
‘misjoinder and/or
non-joinder’. An order was made
in terms of rule 33(4) of the Uniform Rules at the commencement of
the trial directing
that the special defences be tried and determined
separately from, and before, the remaining issues in the action.
This judgment
is concerned only with the determination of the special
defences.
[3]
The date upon which the plaintiff’s
claim became due is a point of essential coincidence for the purpose
of determining the
first two of the aforementioned special defences.
If, as maintained by the plaintiff’s counsel, the claim became
due
only on 1 August 2013, when the plaintiff was first advised by an
attorney that the facts upon which the claim is founded established
a
basis for a suit in damages against the Minister of Correctional
Services, then the claim has not been extinguished by prescription.
In those circumstances the notice given in September 2013 would
also have been compliant with the requirements of s 3(2)(a)
read
with s 3(3)(a) of the Institution of Proceedings Act, having
been given within six months of 1 August 2013.
[4]
The period of extinctive prescription that
pertains is one of three years; see
s 11(d)
of the
Prescription
Act 68 of 1969
. In terms of
s 12(1)
of the
Prescription
Act –
Subject
to the provisions of subsections (2), (3), and (4), prescription
shall commence to run as soon as the debt is due.
Subsections
12(2) and (4) are not relevant on the facts of the current case.
Subsection 12(3) provides:
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.
The
provisions of
s 12(3)
of the
Prescription Act have
the same
effect as those of s 3(3)(a) of the Institution of Proceedings
Act, which, insofar as currently relevant, provide
–
For
purposes of subsection (2)
(a)
-
(a)
a debt may not be regarded as being due
until the creditor has knowledge of the identity of the organ of
state and of the facts
giving rise to the debt, but a creditor must
be regarded as having acquired such knowledge as soon as he or she or
it could have
acquired it by exercising reasonable care, unless
…
[5]
As
noted in
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA), at para 17, it has been held in a series of
decisions of the appeal court that the requisite knowledge goes to
the minimum
facts that are necessary to institute the action.
[1]
It is clear from the allegations in her particulars of claim, which
she confirmed in her oral evidence, and from the statement
of agreed
facts put in at the commencement of the trial, as well as her
concession that she was aware that she had been wronged,
that the
plaintiff was aware of the facts from which the debt arose by the
time she was discharged from prison on parole in December
2009.
[6]
It
is equally clear on the evidence that the plaintiff did not
appreciate the legal implications arising from the facts of which
she
had knowledge. She did not appreciate that they gave rise to a
claim in delict for damages – in other words, an
exigible
debt. She only became aware of the remedies available to her on
the facts alleged in the particulars of claim when,
in reaction to an
advertisement that she had read in the
Voice
newspaper
on 24 July 2013, she consulted with an attorney on 1 August
2013. The advertisement had been placed by her
current
attorneys of record. It stated ‘
Did
you contract TB whilst in prison? If so, you may have a damages
claim
’.
There is also a series of appeal court judgments that holds that
ignorance of ‘the relevant legal conclusions’
to be drawn
from the facts or unawareness by a creditor ‘of the full extent
of its legal rights’ does not affect the
running of
prescription; see the jurisprudence referred to in
Claasen
v Bester
2012 (2) SA 404
(SCA), at para 13-15 and in
MEC
for Education, KwaZulu-Natal v Shange
2012 (5) SA 313
(SCA), at para 10, note 4.
I
shall return to the effect of that aspect of those judgments on the
current case later in this judgment.
[2]
[7]
It is evident from the allegations in the
particulars of claim, loosely drafted as they are, that the defendant
has been sued as
a joint wrongdoer by virtue of the doctrine of
vicarious liability. There is no reason to think that the
plaintiff had actual
knowledge prior to 1 August 2013 that the
defendant was a debtor by virtue of his position as the responsible
member of the
Cabinet. It seems to me then that the only
question in the circumstances is whether the defendant ought
reasonably to have
acquired knowledge of the identity of the
defendant as the debtor earlier than she did.
[8]
The plaintiff is an adult woman, currently
34 years of age. She left school without completing grade 10
when she fell pregnant
during her second year in that grade, having
failed to secure a pass into the next grade at the end of her first
year at that level.
Since leaving school she has been employed
in a series of low-level positions such as a worker in a despatch
department sealing
goods to make them ready for delivery, a shelf
packer-cum-shop till cashier and a cleaner. She is currently a
cleaning supervisor
at the Khayelitsha district hospital.
Having regard to her level of education and socio-economic
circumstances, it is inherently
improbable that the plaintiff knew
anything about the doctrine of vicarious liability and the provisions
of the
State Liability Act 20 of 1957
, or indeed enough about the
operation of the law to be put on enquiry in that connection.
[9]
It is trite that the
onus
of establishing the defence that a debt
has been extinguished by prescription is on the defendant. It
was therefore incumbent
on the defendant to prove on a balance of
probability that the plaintiff could reasonably have acquired
knowledge of the defendant’s
identity earlier than she did and,
assuming that he was able to do so, also to show that the date upon
which such knowledge could
have been acquired was more than three
years before the institution of the action. It has been
recognised that discharging
the
onus
can sometimes be difficult (see
Gericke
v Sack
1978 (1) SA 821
(A), at 827D-G),
but that has not been found to afford any reason to ameliorate the
effect of its incidence.
[10]
The defendant led the evidence of Mr Siviwe
Mancotywa, an official stationed at Pollsmoor Prison in the legal
services section of
the Department of Correctional Services, in an
endeavour to establish that it was common knowledge amongst prisoners
that inmates
infected with tuberculosis as a consequence of the
conditions in which they were incarcerated could bring a claim for
compensation
against the Department. The witness explained that
this was so because of the wide publicity that had been given on
television
and in the newspapers to the high profile matter of
Lee
v Minister of Correctional Services
.
The judgments on the separated issue of liability in that matter at
first instance and thereafter on appeal to the Supreme
Court of
Appeal and the Constitutional Court are reported at
2011 (2) SACR 603
(WCC);
2012 (3) SA 617
(SCA) and
2013 (2) SA 144
(CC). The case
concerned a claim for compensation by a former inmate of Pollsmoor
Prison arising out of his allegedly having
contracted tuberculosis in
prison as a consequence of the conditions in which he had been
incarcerated there between 1999 and 2004.
[11]
During his cross-examination of Mr
Mancotywa, the plaintiff’s counsel suggested to the witness by
implication that the
Lee
trial had taken place after the plaintiff had been released from
prison. He put it to him that the judgment at first instance
in
Lee
had
been given in 2012. The witness seemed surprised by this, but
said that he was willing to accept the correctness of the
proposition
that counsel had put to him. In the course of preparing
judgment I had reference to the report of the High Court
judgment.
According to the information given in the report of the judgment, the
trial in the
Lee
case ran during the periods 2-10 December 2009, 1-25 February 2010
and 16-17 March, with judgment having been delivered on 11 March
2011. The first stage of the trial would thus have taken place
while the plaintiff was still in prison. There was no
evidence,
however, as to at what particular stage of the proceedings the matter
had attracted publicity.
[12]
I directed that an email be sent by the
court registrar to counsel on both sides drawing their attention to
the incorrect premise
on which the witness had been led to make the
concession and inviting their submissions on what they might wish to
do in the circumstances.
Counsel elected, by agreement between
themselves, to submit supplementary written argument. Neither
side sought leave to
reopen the trial. The plaintiff’s
counsel argued that even if there had been some publicity given to
the first stage
of the trial of the
Lee
case, it did not detract from effect of the plaintiff’s
evidence that it had not come to her notice. The defendant’s
counsel included a reference to an internet link to a newspaper
article on the case published during the first stage of the trial.
I do not think that I can properly have regard to such material,
which is evidential in nature and was not canvassed with the
plaintiff or Mr Mancotywa. For the reasons set out below,
however, I consider that even were I to have had regard to
the
publication of the article, it would not have affected the decision
in respect of the first two of the special pleas.
[13]
The plaintiff testified that the first time
that she had heard of the
Lee
case was when she consulted her attorney in response to the
advertisement mentioned earlier. Her evidence in this respect
was not controverted. The defendant did not adduce any evidence
to establish the nature and extent of the publicity given
to the
Lee
case and thus laid no basis to impugn the credibility of the
plaintiff’s evidence that she had not known about the case.
On the contrary, it seems inherently unlikely that the plaintiff
would have delayed investigating the existence of a claim for
compensation until seeing the advertisement if she had become aware
of the
Lee
case earlier. The expedition with which the plaintiff reacted
to the advertisement by arranging an appointment to consult
the
attorney within a week of having seen the advertisement is
inconsistent with any inclination on her part to have been supine
in
that connection.
[14]
The facts of the current case are directly
comparable for relevant purposes with those that obtained in
Shange
supra.
[15]
In
that matter the plaintiff had been injured during June 2003 by the
deputy principal of the rural school he attended. His
eye was
injured when it was struck by the teacher’s belt while the
latter was administering corporal punishment to another
pupil.
The plaintiff was a 15 year old grade nine pupil at that time.
The plaintiff accepted the teacher’s explanation
that what had
happened had been ‘a mistake’, and no action was taken to
seek compensation for the injury. In
January 2006, while the
plaintiff was still a minor,
[3]
a relative, who had enquired why he wore an eye-patch, advised him to
complain to the Public Protector. An advocate employed
at the
office of the Public Protector informed the plaintiff that he could
institute a claim against the MEC for Education and
advised him to
consult an attorney. The plaintiff acted on that advice. The
attorney misdirected a notice in terms
of the Institution of
Proceedings Act to the national Minister of Education, instead of to
the MEC. Proceedings were, however,
subsequently instituted
against the MEC in December 2008.
[16]
The MEC delivered a special plea in which
it was alleged that notice in terms of the Institution of Proceedings
Act had not been
given within six months of the date on which the
debt became due. The plaintiff responded to the special plea by
applying
for condonation of his non-compliance with the Act.
The Supreme Court of Appeal, in the context of determining whether
the
plaintiff’s application for condonation had met the
requirements of s 3(4)(b)(i) of the Institution of Proceedings
Act
(viz. by satisfying the court that ‘the debt had not been
extinguished by prescription’), considered, with reference
to
s 12
of the
Prescription Act, when
the debt had become due.
[17]
At para 7 of the judgment in
Shange
,
Snyders JA stated:
Immediately
after the incident occurred, the [plaintiff] knew almost all the
facts from which the debt arose: he experienced the
event; he knew
how it happened; he knew that it was a teacher who inflicted the
injury; that it happened during school hours and
at school. Insofar
as his claim against the teacher was concerned, that debt became due
immediately. However, whether he, as a
15-year-old rural learner,
knew the identity of the
[defendant]
as joint debtor
,
is not apparent from those facts.
The
learned judge of appeal continued as follows at para 11:
[The
plaintiff] states that an advocate in the office of the Public
Protector advised him, in January 2006, to institute a civil
claim
against the [defendant]. Unfortunately the [plaintiff’s] legal
representatives did not appreciate the significance
of this fact.
Its
disclosure, evidently for the first time, informed the
[plaintiff]
of the identity of the
[defendant]
as the joint
debtor with the teacher who injured him
. He was a rural learner
of whom it could not be expected to reasonably have had the knowledge
that not only the teacher was his
debtor,
but more importantly,
that the
[defendant]
was a joint debtor. Only when he was
informed of this fact did he know the identity of the
[defendant]
as his debtor for the purposes of the provisions of
s 12(3)
of the
Prescription Act
>.
and
concluded thus at para 12:
I
am satisfied that a careful scrutiny of the unchallenged facts put up
by the [plaintiff], taken together with the circumstances
in which he
found himself, gives rise to the overall factual conclusion, fairly
arrived at, that the condition in s 3(4)(b)(i)
of the Act does not
operate against the [plaintiff].
On the facts, the
[plaintiff]
,
in consulting an advocate in the office of the Public Protector and
his attorney during January 2006, should reasonably have become
aware, for the first time, that he had a claim
against the
[defendant]. If prescription commenced running at that time it
would, by 1 July 2007, when the [plaintiff],
ex lege
, achieved
majority, have already run for some 18 months. By reason of
s 13(1)
of the
Prescription Act, the
[plaintiff] was entitled to the benefit
of the full relevant period of prescription, ie three years, before
his claim would be
extinguished. That was until at least January
2009. Summons was in fact served on the appellant on 3 December 2008.
(Italicisation
supplied for highlighting purposes.)
[18]
The
Supreme Court of Appeal thus considered that the court of first
instance should have been satisfied on the facts described that
the
debt against the MEC became due only when the plaintiff was advised
that he had a claim not only against the teacher, but also
against
the teacher’s employer; in other words, when he first learned
of the identity of the defendant in the context of
being given legal
advice to that effect. The Court plainly did not consider it to
be relevant that the plaintiff’s
ignorance of the operation of
the doctrine of vicarious liability - and thus of the full extent of
his legal rights arising out
of the facts which had given rise to the
debt and were within his knowledge - had been at the bottom of his
failure to appreciate
the very existence of a co-debtor. It
approached the matter simply on the factual basis that the plaintiff
did not know of
the identity of the MEC as his debtor until he was
informed of the existence of a claim based on vicarious liability.
The
Court therefore cannot have considered the
dicta
in the series of judgments mentioned in para [6], above, about
the irrelevance to the running of prescription of a lack of
knowledge
by the creditor about the legal consequences of the facts to have
been applicable in the circumstances. That cannot
have been an
oversight, for some of those judgments are actually referred to in
Shange
.
[4]
[19]
I
have not overlooked the fact that the Court in
Shange
was
not engaged in determining a special plea of extinctive prescription.
The import of its reasoning in respect of the issue
that it was
dealing with is, however, indistinguishable in the circumstances of
the current case. The only distinguishing
feature of any legal
significance between
Shange
and
the current case is the incidence of the onus, or the burden of
persuasion. In
Shange
,
the
plaintiff
had merely to ‘satisfy’
[5]
the
court that his claim had not prescribed, whereas in the current
matter the
defendant
had to prove that the debt has been extinguished by prescription.
[20]
The defendant’s counsel sought to
distinguish
Shange
on the facts. In this regard she emphasised that the plaintiff
in
Shange
had been a minor when he was injured, while the plaintiff in the
current case was an adult at all material times. She submitted
that it was also significant that in the current case the plaintiff
had admitted that when she was diagnosed she had felt wronged
for
having been exposed to tuberculosis in prison, whereas the plaintiff
in
Shange
had initially accepted that he did not have a claim in the face of
his teacher’s explanation that it had been ‘a mistake’.
She also submitted that the publicity that had attended the
Lee
case – a factor that was absent from the factual matrix in
Shange
-
made it unreasonable for the plaintiff not to have appreciated
earlier that she enjoyed a claim against the defendant.
[21]
As to the first of those contentions, I am
not persuaded that there was any material difference between the
apparent situations
of the plaintiffs in the two cases. The one
was young and unsophisticated, the other is of limited education and
means.
Both had no knowledge of the law and no easy means of
coming by appropriate advice. When it comes to deciding whether
in
their respective positions they ought to have identified a
vicariously liable representative in the government as jointly and
severally
liable with the persons directly responsible for the harm
suffered by them sooner than they did, I am unable to find a
convincing
basis for distinguishing between them. They were
comparably disadvantaged.
[22]
As
to the second contention, the fact that the plaintiff felt wronged
did not mean that she understood that she had a claim.
[6]
More pertinently, even less so did it connote that she knew that the
defendant was a co-debtor with the persons she would
have appreciated
had been directly responsible for housing her in the conditions in
which she was allegedly exposed to infection.
[23]
I have already addressed the third
contention. The plaintiff did not read the newspapers in which
the
Lee
case was given publicity. She did not see anything about it on
television. It was not established that her failure
to have
done so was unreasonable. There was in any event no evidence
concerning the content of the publicity allegedly given
to the
Lee
case whereby a date by which the plaintiff should have identified the
defendant as her debtor might be determined.
[24]
In the circumstances, the defendant has
failed to establish that the plaintiff’s claim had been
extinguished by prescription
by the date on which the action was
instituted, and the special plea of prescription must therefore be
dismissed.
[25]
The special defence based on the alleged
non-compliance with the Institution of Proceedings Act must also
fail. The uncontroverted
evidence is that the plaintiff first
became aware of the identity of the defendant as a debtor on 1 August
2013. On the approach
adopted in
Shange
,
the debt must be taken to have fallen due on that date. The
notice given to the defendant was given well within the six-month
period following on that date.
[26]
The defendant’s counsel conceded,
advisedly so, that there was no merit in the special plea of
‘misjoinder and/or non-joinder’.
No more need be
said about it.
[27]
The following order will issue:
The
defendant’s special pleas are dismissed with costs.
A.G.
BINNS-WARD
Judge
of the High Court
[1]
The
dictum
of Mlonzi AJ in
Deysel
v Truter and Another
2005 (5) SA 598
(C) at 609 C, which was relied on by the plaintiff’s
counsel, that ‘
Knowledge
of
the entire set of facts
giving rise to an enforceable claim is the knowledge which is an
intrinsic requirement in terms of s 12(3)
.’
(underlining in counsel’s heads of argument) has to be
narrowly construed for consistency with appeal court authority.
Reliance on the
dictum
is in any event questionable, as the judgment was reversed on appeal
precisely because the learned acting judge had misapprehended
the
ambit of the knowledge required by a creditor before the debt is
deemed to be due. See
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA), especially at para 11-24.
[2]
At para [18], below.
[3]
The
age of majority was reduced from 21 years to 18 years only with
effect from 1 July 2007 by virtue of s 17 of the Children’s
Act 38 of 2005.
[4]
See
the judgments cited in note 4 at paragraph 10 of the judgment in
Shange
.
[5]
As
to the implication of
satisfying
a court in the relevant context; see
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at para 8. It entails something less
than providing proof on a balance of probabilities.
[6]
In
Macleod
v Kweyiya
2013 (6) SA 1
(SCA), at para 12, it was held that for the debt to be
due the claimant’s appreciation ‘entailed not only
knowledge
of the minimal facts of the claim,
but
also an appreciation that those facts afforded her claim against the
appellant
’.
I confess to some difficulty in reconciling the italicised words
quoted from
Macleod
with
the frequently approved approach adopted in the Court’s
earlier judgment in
Van
Staden v Fourie
1989 (3) SA 200
(A), especially at 216B-E, in which the creditor’s
ignorance of the effect on the agreement he had concluded of certain
provisions in the Share Blocks Control Act - knowledge he needed in
order to appreciate that he enjoyed a claim - did not avail
him in
respect of the commencement of the running of prescription in
circumstances in which the basic facts giving rise to the
debt (but
not their legal consequences) had been known to him. It has
not been necessary for the decision of the current
case, however, to
determine whether there is indeed a conflict or, if so, how to deal
with it; cf.
Makambi
v MEC for Education, Eastern Cape
[2008] ZASCA 61
;
2008 (5) SA 449
(SCA), at para 28.