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[2016] ZAWCHC 169
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Minister of Safety and Security and Another v Patterson (A371/2013) [2016] ZAWCHC 169 (22 November 2016)

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal Case No: A371/2013
Trial Case No. 4673/2005
Before: The Hon. Mr Justice Le Grange
The Hon. Mr Binns-Ward
The Hon. Ms Acting Justice Magona
Dates of hearing: 20 September 2016
Date of judgment: 22 November 2016
In the matter between:
THE MINISTER OF SAFETY AND
SECURITY
First
Appellant
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second
Appellant
and
CHRISTOPHER
PATTERSON
Respondent
JUDGMENT
BINNS-WARD J (LE GRANGE J AND MAGONA AJ concurring):
[1]
Delivery
of this judgment has been delayed due an initial difference of
opinion between us as to the result.  Happily, unanimity
has
been reached.
[2]
The
appeal was against the dismissal by the court a quo of the first
appellant’s special defences of extinctive prescription.

It is not known why the second appellant has been cited as a party to
the appeal.  As will appear, he has no interest in it.
[3]
The
respondent instituted action against the Ministers of Safety and
Security and of Justice and Constitutional Development
[1]
in 2004 claiming compensation in damages in respect of his allegedly
unlawful arrest and detention in 1998 and 2001, respectively,
and for
malicious prosecution.  It was common cause on the pleadings
that the first arrest of the respondent, which was on
a charge of
murder, had been effected on 2 October 1998, and that the charge had
been withdrawn by the senior public prosecutor
on 5 October 1998.
The second arrest, apparently effected on 27 August 2001, was in
respect of the same charge.  It
appears that the respondent was
thereafter – apparently on 3 September 2001 - released on bail
pending his subsequent trial,
which ended on 12 September 2003 when
he was discharged at the close of the state’s case.
[4]
The
action was instituted under case no. 7595/2004 by service of the
summons on 10 September 2004.  The Ministers
delivered a
special plea in the action in which they alleged that the claim had
prescribed by reason of the institution of the
proceedings after the
expiry of the period provided in terms of s 57(1) of the South
African Police Service Act 68 of 1995
and also that the claim was in
any event barred due to non-compliance by the respondent with the
notice provisions in terms of
s 3 of the Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002.
(Section 57 of the Police
Service Act was in fact repealed in terms
of s 2(1) of the Institution of Legal Proceedings Act.)
They also pleaded
that the claim had been brought outside the
three-year prescription period provided in terms of
s 11(d)
of
the
Prescription Act 68 of 1969
.
[5]
In
response to the special plea the respondent applied to court in terms
of s 3(4) of the Institution of Legal Proceedings
Act
[2]
for condonation of his failure to have given notice in terms of that
Act.  He applied for the following substantive relief:
1.
That non-compliance
with Sections 3(2)(a), 3(2)(b)(i) and 3(2)(b)(ii) of Act 40 of 2002
be condoned and that the Applicant may proceed
with the legal
proceedings instituted on such terms and conditions regarding notice
as the above Honourable Court may deem appropriate;
alternatively
:
2.
That non-compliance
with Sections 3(2)(a), 3(2)(b)(i) and 3(2)(b)(ii) of Act 40 of 2002
be condoned and that the Applicant is granted
leave to institute
fresh legal proceedings against the Respondents on such terms and
conditions regarding notice as the above Honurable
Court may deem
appropriate.
[6]
His
application was not opposed.  The Ministers filed a notice of
intention to abide the judgment of the court on the condonation

application, provided no costs were sought against them.
[7]
Thereafter,
on 17 May 2005, an order (without reasons) was taken before Traverso
DJP in the following terms:
1.
Non-compliance with
Sections 3(2)(a), 3(2)(b)(i) and 3(2)(b)(ii) of Act No. 40 of
2002 is condoned in terms of Section 3(4)(a)
and (b) of Act No. 40
of 2002.
2.
Leave be granted to
Applicant to withdraw the Summons issued in the aforementioned
matter.
3.
Leave be granted in
terms of Section 3(4)(c) to institute fresh legal proceedings against
First and Second Respondents in the abovementioned
matter.
[3]
[8]
The
respondent subsequently withdrew the action that he had instituted in
2004 and instituted proceedings afresh for the same relief
by service
of summons in a separate action under case no. 4673/05 on the
Ministers on 8 June 2005.  The Ministers
again raised a
plea that the claim had prescribed.  The respondent replicated
to the special defence and alleged, in effect,
that by virtue of the
aforementioned order made by Traverso DJP the issue of prescription
was
res judicata
.
The wording of the pertinent parts of the respondent’s
replication went as follows (in para.s 5.5, 9.4 and 14.4 (the
second
so numbered)):
[The plaintiff pleads that]
…
by implied, alternatively
tacit implication and interpretation of the Order of this Honourable
Court dated 17 May 2005 …
the Plaintiff was granted leave to
institute “fresh” legal proceedings against the
Defendants and that, such order
was not granted to place the
Plaintiff in prescription (sic) or have the claims of the Plaintiff
upon the institution of timeous
“fresh” proceedings
against the Defendants prescribe as a consequence of the order’.
(The import of the phrase ‘
institution of
timeous
“fresh” proceedings
’ was never clarified.)
[9]
The
respondent’s replication also pleaded that his claim in respect
of his allegedly unlawful arrest and detention in 1998
had not
prescribed because ‘
the cause of
action arose on 12 September 2003 when he was discharged in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
, on the charge
so referred to and in relation to “the first arrest”
effected on 2 October 1998; alternatively
… that the
“first arrest” constitutes a continuous event, commencing
on 2 October 1998 and concluding on 12
September 2003, the latter
date being the date upon which the criminal case was concluded in
favour of the Plaintiff with the facts
from which the cause of action
arose and the debt became due
’.
Those allegations, which went to the substance of the defence, were
not dealt with by the court a quo.
[10]
The
learned judge at first instance aptly remarked that the replication
was ‘
inelegantly drafted
’,
but held in respect of that part of the pleading described in
paragraph [8], above, that ‘
it
[was]
clear that what the plaintiff
intended to convey was that it could never have been a consequence of
the
[aforementioned order made by
Traverso DJP]
that his claim would
nonetheless, and at any later date, be found to have prescribed
’.
The judge proceeded on this predicate: ‘
In
effect this amounts to a plea of
res
judicata
.
’
There has been no suggestion from any quarter that the learned
judge’s characterisation was misplaced.
[11]
The
issue raised by the plea of prescription was separated from the other
issues in the action.  By the time the matter came
before the
court a quo it had been conceded that the claim for compensation in
respect of the alleged malicious prosecution had
not prescribed.
The court’s judgment was therefore directed at the
determination only of the question whether the claims
against the
first appellant for unlawful arrest and detention had been
extinguished by prescription.  The court a quo
upheld the
respondent’s reliance on the
exceptio
rei judicatae vel litis finitae
and for
that reason dismissed the first appellant’s special defence
without going into its merits.  That decision, made
in a
judgment delivered on 8 May 2013, was brought on appeal before us
more than three years later, with leave from the court a
quo granted
on 3 June 2013.
[12]
The
judgment of the court a quo was founded squarely on its conclusion
that the order made by Traverso DJP had conclusively
determined
the issue of extinctive prescription.  In our judgment that
conclusion was incorrect, with respect.  In our
view, the court
a quo was misdirected in two material respects.  First, it
failed to take account of the conceptual distinction
between a court
being ‘
satisfied
’
for the purposes of s 3(4)(b)(i) of the Institution of Legal
Proceedings Act
[4]
that a ‘debt has not been extinguished by prescription’
and a court determining conclusively for the purpose of dismissing
a
special defence that the defendant has not ‘
proved
’
that the debt has been extinguished by prescription.  Second, it
failed, in the context of the aforementioned institution
of fresh
proceedings by the respondent, to take into account the incidence of
s 15
of the
Prescription Act (to
which it should in fairness be
recorded the court’s attention was not drawn).
[13]
As
Olivier JA noted in
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2)
SA 232
(SCA),
[2001] 1 All SA 417
,
at
para. 2 of the majority judgment:
‘
The requirements for
a successful reliance on the
exceptio
[
rei judicatae
vel litis finitae
]
were, and still
are:
idem actor,
idem reus, eadem res
and
eadem
causa petendi
.
This means that the
exceptio
can be raised by a
defendant in a later suit against a plaintiff who is “demanding
the same thing on the same ground”
(per Steyn CJ in
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A)
at 562A); or which comes to the same thing, “on the same cause
for the same relief” (per Van Winsen AJA in
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A)
at 472A - B; see also the discussion in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 653
(A)
at 664C - E); or which also comes to the same thing, whether the
“same issue” had been adjudicated upon (see
Horowitz
v Brock and Others
1988 (2) SA 160
(A)
at 179A - H)
.’
In
Yellow Star Properties 1020 (Pty) Ltd v MEC, Department Of
Development Planning and Local Government, Gauteng
2009 (3) SA
577
(SCA), at para 22, Leach AJA added:
‘
It has been recognised
though that the strict requirements of the
exceptio
,
especially those relating to
eadem
res
or
eadem petendi
causa
(the
same relief and the same cause of action), may be relaxed where
appropriate. Where a defendant raises as a defence that the
same
parties are bound by a previous judgment on the same issue (viz
idem
actor
and
eadem quaestio
),
it has become commonplace to refer to it as being a matter of
so-called “issue estoppel”. But that is merely a phrase

of convenience adopted from English law, the principles of which have
not been subsumed into our law, and the defence remains one
of
res
judicata
.
Importantly when dealing with issue estoppel, it is necessary to
stress not only that the parties must be the same but that the
same
issue of fact or law which was an essential element of the judgment
on which reliance is placed must have arisen and
must
be regarded as having been determined in the earlier judgment
’
(footnote omitted, and underlining
supplied for emphasis).
[14]
The
learned judge a quo considered that as Traverso DJP had to be
‘
satisfied
’
in terms of s 3(4)(b)(i) of the Institution of Legal Proceedings
Act that the ‘
the debt
[had]
not been extinguished by prescription
’
in order to be able to make the order condoning the respondent’s
non-compliance with the notice requirements under
that Act, the
Deputy Judge-President had therefore necessarily to be taken to have
determined
the question of extinctive prescription that had been raised in the
then pending action in case no. 7595/2004.
The judge
held as follows in that respect, ‘
I
disagree with the submission made by the defendants’ counsel
that Traverso DJP “did not hand down a judgment
on
prescription”; by clear implication that is precisely what she
did
’.
[15]
A
defendant who raises the defence of extinctive prescription attracts
an
onus
to
prove
on a
balance of probabilities that the debt has been extinguished.
Extinctive prescription is a defence, not a cause of action.

Furthermore, it is a matter that a court is not entitled to raise
suo
motu
against a claimant.
[5]
The party who invokes prescription, which invariably will be
the party resisting enforcement of the debt, must do so in the

relevant document filed of record in the proceedings.  The
defence can, however, with the court’s leave, be raised at
any
stage of the proceedings.
[6]
[16]
There
is no basis for a defence of prescription to be raised before a court
seized of an application for condonation in terms of
s 3(4) of
the Institution of Legal Proceedings Act.  There might at most
be an indication that such a defence has been,
or will be, raised by
the alleged debtor in the main proceedings that the applicant for
condonation seeks leave to institute or
continue.  There is
therefore no
onus
on a defendant or prospective defendant in the context of a
condonation application in terms of s 3(4) to establish its
defences
in the pending main proceedings.  On the contrary,
there is a burden of persuasion on the applicant for condonation to
‘
satisfy
’
the court that its claim has
not
prescribed.  If an intention to raise a defence of prescription
in the pending principal proceedings is indicated by the respondent

in the condonation application, the court, for the purposes of
s 3(4)(b)(i), is required to do no more than form a view on
the
prospects of success of the indicated defence; it is not called upon
to decide it; and would be venturing impermissibly outside
its remit
if it purported to do so.  If the court were in the postulated
circumstances to form the impression that the defence
of prescription
was unlikely to succeed, it would be ‘
satisfied
’
for the purposes of s 3(4)(b)(i) that the claim had not
prescribed and would incline to grant condonation;
aliter
,
if it took the opposite view.
[17]
Traverso
DJP was therefore not seized of the determination of the Ministers’
special pleas of prescription in the 2004 action,
as the learned
judge a quo implied in her judgment.  Had the Deputy Judge
President been seized of determining the special
defences, the order
she made would have had to either uphold or dismiss them.  The
fact that the order contained no such provision
serves to illustrate
that the defences were not before the learned judge.  What was
before the Deputy Judge President, as
the papers and the resultant
order confirm, was an application for the condonation of the
respondent’s non-compliance with
a statutory requirement
pertaining to the institution of the action.  For the reasons
explained in the previous paragraph,
the burden of persuasion on an
applicant seeking condonation in terms of s 3(4) of the
Institution of Legal Proceedings Act
to satisfy the court that the
claim has not been extinguished is of a discrete legal character to
the
onus
,
in the true sense of that word, that burdens a defendant raising
prescription as a special defence to the claim.  This much
was
authoritatively confirmed in
Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA), at para. 8, where Heher JA stated ‘
The
phrase 'if [the court] is satisfied' in s 3(4)(b) has long been
recognised as setting a standard which is not proof on a balance
of
probability. Rather it is the overall impression made on a court
which brings a fair mind to the facts set up by the parties.
See eg
Die Afrikaanse Pers Beperk v
Neser
1948
(2)
SA 295
(C) at 297.
[
[7]
]
I see no reason to place a stricter
construction on it in the present context.
’
That also makes it clear that the impression in respect of
prescription that the Deputy Judge President had to form
to decide
the condonation application was of a materially different nature to
that required of a trial judge seized of having to
determine a
special defence of prescription.  (It is unfortunate that the
attention of the learned judge a quo does not appear
to have been
drawn to the appeal court’s decision in
Madinda
.)
[18]
The
respondent’s apparent invocation of the
exceptio
rei judicatae
in response to the
Minister’s plea of prescription was accordingly misconceived,
and the court a quo should not have dismissed
the plea on the basis
that it was
res judicata
.
[19]
But
there was also another reason why the special defence could not have
been
res judicata
.
The effect of the withdrawal of the action under case no. 7595/2004
was that the interrupting effect on prescription
of service of the
summons in that action was thereby negated.  The order made by
Traverso DJP expressly contemplated the withdrawal
of the action
proceedings that were pending when it was made, and the institution
of ‘fresh proceedings’ thereafter
at some undetermined
time.  It must be assumed that the court was astute in the given
context to the effect of
s 15
of the
Prescription Act, but
the
effect would follow even if the court had overlooked the provision.
[20]
The
provisions of
s 15
that are most pertinent in the circumstances
are subsections (1), (2) and (6), which provide:
(1) The running of prescription shall, subject to the
provisions of subsection (2), be interrupted by the service on the
debtor
of any process whereby the creditor claims payment of the
debt.
(2) Unless the debtor acknowledges liability, the
interruption of prescription in terms of subsection (1) shall lapse,
and the running
of prescription shall not be deemed to have been
interrupted, if the creditor does not successfully prosecute his
claim
under the process in question
to final judgment or if he
does so prosecute his claim but abandons the judgment or the judgment
is set aside.
(6) For the purposes of this section, ‘process’
includes a petition, a notice of motion, a rule nisi, a pleading in
reconvention, a third party notice referred to in any rule of court,
and
any document whereby legal proceedings are commenced
.
(Underling provided for emphasis.)
[21]
The
effect of withdrawing the action instituted in terms of the summons
in case no. 7595/2004 meant that the respondent
failed to
prosecute his claim to success ‘under the process in question’,
with the result that the interruption of
prescription that had
intervened when the summons was served thereupon lapsed,
and
the running of prescription was deemed not to have been interrupted
.
The effect was of a statutory character that was beyond the power of
any court to moderate or avoid.  Traverso DJP
may have been
‘satisfied’ that the claims had not prescribed when she
made the order of 17 May 2005, but she had no
means of knowing
whether that would still be the position when the ‘fresh
proceedings’ that she authorised were instituted
at a later
undetermined date under different process.  This affords a
further indication that the Deputy Judge President could
not, by
making the order she granted on 17 May 2005, have intended to be
determining any special plea of prescription that might
be raised in
fresh proceedings instituted on some undetermined date after the
order was made.  For her to have purported to
do so would have
been a legally impossible undertaking.
[22]
The
judgment of the court a quo makes no reference to
s 15
,
presumably because the attention of the learned judge was not
directed to it.
[23]
For
these reasons the appeal must be upheld.  The court a quo did
not determine the plea of extinctive prescription on a substantive

basis because of its apprehension that the question had already been
decided by Traverso DJP.  We consider that it would be

inappropriate for this court to deal with the substantive basis of
the defence as if at first instance, especially as we did not
hear
argument on those issues.  The substantive question must
therefore be remitted for determination by the trial court.
[24]
It
seems to us that the appeal might well have been unnecessary had the
attention of the court a quo been directed to the judgment
in
Madinda
supra, and the pertinent provisions of
s 15
of the
Prescription
Act.  In
the circumstances in which the substantive basis for
the special defence remains undetermined, we consider that it would
be appropriate
not to award the costs of the appeal to the successful
appellant, but rather to direct that they be costs in the cause in
the determination
by the court a quo on remittal in terms of
paragraph 3 of the order to be made.
[25]
The
following order is made:
1.
The
appeal is upheld.
2.
The
order of the court a quo dismissing the pleas of prescription on the
basis of
res judicata
is set aside.
3.
The
pleas of prescription are remitted to the court a quo for
determination on their substance.
4.
The
costs of the appeal shall be costs in the cause in the proceedings
contemplated in terms of paragraph 3, above.
A.G. BINNS-WARD
Judge of the High Court
A. LE GRANGE
Judge of the High Court
P. MAGONA
Acting Judge of the High Court
[1]
The names of both portfolios have
subsequently been changed.
[2]
Section 3(4)
provides:
(4)    (a)    If an
organ of state relies on a creditor's failure to serve a notice in
terms of
subsection (2) (a), the creditor may apply to a court
having jurisdiction for condonation of such failure.
(b)    The court may grant an
application referred to in paragraph (a) if it is satisfied that-
(i)     the debt has not been
extinguished by prescription;
(ii)    good cause exists for the
failure by the creditor; and
(iii)   the organ of state was not
unreasonably prejudiced by the failure.
(c)     If an application is
granted in terms of paragraph (b), the court may grant leave to
institute the
legal proceedings in question, on such conditions
regarding notice to the organ of state as the court may deem
appropriate.
[3]
It seems likely from the terms of
paragraph 3 of the order that it was thought necessary that
condonation precede the institution
of proceedings.  Any such
perception was unfounded, as subsequently confirmed in
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA).  There was therefore actually no need for the
pending action to be withdrawn and for ‘fresh proceedings’

to be instituted.  That does not, however, affect the reality
and consequences of that having happened.
[4]
See note 2, above.
[5]
See
s 17(1)
of the
Prescription
Act.
[6
]
See
s 17(2)
of the
Prescription
Act.
[7
]
In
Afrikaanse
Pers
loc. cit.
Newton Thompson J made the following pertinent remarks about the
import of the word ‘satisfy’ in a closely
analogous
context:
‘
Under
Rule 22
(4) it is
for the defendant to satisfy the Court that he has a bona fide
defence to the action. It is true, the authorities show
that this is
not a heavy
onus
.
‘Satisfy’ does not mean ‘prove’. I take
‘satisfy’ to mean therefore that the Court must
feel
that there is a fair probability that the defendant's defence is a
good one, at any rate that it is bona fide.
’