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[2011] ZAGPJHC 26
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Xaba v Ekurhuleni Metropolitan Municipality (17720/10) [2011] ZAGPJHC 26 (7 April 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
REPORTABLE
CASE NO
:
17720/10
DATE:07/04/2011
In the matter between:
XABA,
VICKY
MOSES
...........................................................
Applicant/Plaintiff
and
EKURHULENI
METROPOLITAN MUNICIPALITY
.......
Respondent/Defendant
______________________________________________________________
J U D G M E N T
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] This matter demonstrates
unambiguously how the applicant was consistently let down, to his
detriment by his legal representatives.
In the Notice of Motion the
applicant seeks an order condoning the late service on the respondent
of the Notice as contemplated
by
section 3(1)
of the
Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002
.
The application is based on
section 3(4)(a)
of the latter Act. The
applicant also seeks an order for leave to institute legal
proceedings against the respondent for damages
for assault, arrest
and detention arising from an incident on 17 February 2007. In the
alternative, the applicant seeks condonation
relief on terms and
conditions in the discretion of the Court.
[2] The application is opposed strenuously by the respondent mainly
on the ground that the applicant’s claims have prescribed.
[3] It is common cause that the respondent is a state organ duly
constituted in terms of the Local Government and Municipal Systems
Act 32 of 2000, the
Local Government Municipal Structures Act 117 of
1998
, the Local Government Transitions Act 209 of 1993, and the
Regulations and Proclamations issued in terms thereof.
[4] Prior to dealing with the facts of this matter, it is
appropriate to first deal with the relevant legislation.
Section 3
of
the
Institution of Legal Proceedings Against Certain Organs of State
Act 40 of 2002
, provides:
“
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless –
the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute legal
proceedings
in question; or
the organ of state has consented in writing to the institution of
that legal proceedings –
without such notice; or
upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
A notice must –
within six months from the date on which the debt became due, be
served on the organ of state in accordance with
section 4(1)
; and
briefly set out –
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of
the creditor.
(3) 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 the organ of state wilfully
prevented him or her or it from acquiring such knowledge;
and a debt
referred to in
section 2(2)(a)
, must be regarded as having been due
on the fixed date.
(4) 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.
…
the Court may grant an application referred to in paragraph (a)
if it is satisfied that –
the debt has not been extinguished by prescription;
good cause exists for the
failure by the creditor; and
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.
”
In regard to prescription,
section 11 of the Prescription Act 68 of 1969 (“
the
Prescription Act
”),
provides:
“
The
periods of prescription of debts shall be the following:
(Not applicable).
(Not applicable).
(Not applicable).
Save where an Act of
Parliament provides otherwise, three years in respect of any debt.
”
Section 12(3)
of the
Prescription Act 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 required it by exercising reasonable
care.
”
[5] From the above provisions,
it is clear that in proceedings such as envisaged by the applicant,
written notice must be given
to the respondent within six months from
the date of the cause of action; or the respondent has waived such
notice in writing;
in the case of a notice, such notice must set out
the facts relied upon and within the knowledge of the applicant which
give rise
to the action; if the organ of state to be sued raises the
question of no notice having been given, the applicant may apply to
Court for condonation for such failure (as in the present matter);
the Court in hearing such application may grant such condonation,
if
the Court is satisfied, firstly, that the intended claim has not
become prescribed. Secondly, that good cause exists for the
failure
by the applicant, and thirdly, that the organ of state to be sued has
not been unreasonably prejudiced by such failure
to comply. In
regard to prescription, it is equally plain that the intended
proceedings must be brought within a period of three
years from the
date on which the cause of action arose.
[7] I turn to the facts of the present matter. These facts on the
failure of the applicant to give the required notice in terms
of
section 3(1)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act, as
well as the
Prescription Act, are
closely
intertwined. These are the facts as set out by the applicant in the
founding papers:
On or about 17 February 2007, the applicant left his employment at
Springs at approximately 14h30 and proceeded to drop off
two of his
fellow employees in the town of Springs. He proceeded home on or
along President Paul Kruger Highway heading in
the direction of
Benoni;
He was driving at the relevant
speed limit in the left-hand lane at about 16h00 when he was pulled
over by two male members
of the respondent’s Metro Police who
were flashing sirens at him. He was pulled over when approaching
the bridge at
Dersley Park. The two police officers, alighted from
their motor vehicle, as did the applicant from his motor vehicle.
The
applicant immediately requested to know what he was pulled over
for. One of the police officers walked behind him towards his
car
and the other officer came and stood directly in front of him. Both
officers refused to provide him with details of what
he had done
wrong;
Within seconds he was pushed
from behind by the police officer who went behind him and he fell
into the police officer in front
of him and both police officers
started to assault him. He tried to shield himself from the
attack. In the scuffle he was
then forced towards the barrier of
the bridge and was subdued by the officer who came from behind.
The other officer proceeded
to his Metro motor vehicle and fetched
a nylon rope, tied his hands and then wrapped the rope around his
neck and tried to
strangle him. The rope was pulled so tightly
around his neck that he could not breathe and was choking.
Eventually, the police
officer released his grip on the rope
slightly for the applicant to breathe. The police officer with the
rope eventually called
for backup and two other Metro police
officers arrived on the scene;
The applicant subsequently
found out the name of the police officer calling for backup, namely
Officer Nkuna. On arrival of
the two further police officers whose
names he did not know, one African and one Coloured male, Nkuna
informed them that he
had resisted arrest and had sworn at and
assaulted them. The Coloured officer immediately began to assault
the applicant by
punching him all over and when he fell to the
ground he kicked him in the ribs on the right-hand side of the
body. The African
male police officer who accompanied the Coloured
officer advised his colleagues that they should stop beating the
applicant
as he was injured and bleeding profusely. The nylon rope
was taken off and the applicant was handcuffed. In the process he
was hit again by the Coloured officer in the face, saying, “
jy
gaan kak
”;
The applicant was then thrown
into the back of the Metro Police vehicle with the Coloured officer
driving and the African male
police officer, who had initially
pulled him over, accompanying them. The Coloured officer drove at
high speed and would slam
on the brakes regularly as he had placed
a loose spare wheel into the back of the Metro vehicle. The
applicant says that he
was bashed and bruised by the wheel and was
injured and traumatised severely by the incidents;
The applicant was taken to the
South African Police Station at Springs and left in the motor
vehicle only for the same Metro
Police Officers to come out and
took him to the offices of the respondent in Springs, which were
approximately five minutes
away from the South African Police
Station at Springs;
7.7 On arrival at the
respondent’s offices in Springs, the applicant says that they
passed what appeared to be a superior
officer to Officer Nkuna who
advised Nkuna to clean the blood from his face. Nkuna said he would
assist but he failed to do this
when his superior disappeared. He
was taken into a room where there were several other individuals,
apparently under arrest.
A blood sample was taken from him without
knowing the reason therefor. On the Saturday morning 18 February
2007, the applicant
was taken out of the cells and brought to the
charge office where he was charged with the offences of drunken
driving, reckless,
alternatively negligent driving, assaulting a
police officer and resisting arrest. He was told to go home once he
paid R500,00
bail and his fingerprints were taken;
7.8 Immediately after his
release, the applicant proceeded to Glynnwood Hospital in Benoni for
X-rays and medical treatment and
was advised that he had fractured
his ribs and had multiple contusions;
7.9 On 18 February 2007, the
applicant attended the Springs Police Station to open a case of
assault and theft against the police
officers involved working for
the respondent. He was referred to a Detective Mabulane to whom he
explained his story and Mabulane
indicated that he should return on
19 February 2007 so that he could take photographs of his injuries
sustained in the arrest.
The applicant also gave the police officer
the serial number of his cellphone that had gone missing in the
interim. On 19 February
2007, the applicant duly saw Detective
Mabulane and was given the case number. He was told to appear in the
Springs Magistrate’s
Court on 23 April to face the aforesaid
charges. The charges were withdrawn and the matter ended there;
7.10 The applicant says that
prior to his court appearance, he obtained the services of a lawyer
by the name of Mr Mohammed Matwadia
(“
Matwadia
”),
who required funds to represent him, which he duly paid. He was
advised by Matwadia at the time, that the charges were
withdrawn
because there was insufficient evidence to prosecute him. The bail
money of R500,00 was refunded to him;
7.11 During the process the
applicant had advised Matwadia about the case that he had opened
against the respondent’s Metro
Police relating to the assault
and Matwadia advised him of the procedures that would be needed to
bring a civil case of assault,
unlawful detention and unlawful arrest
against the respondent. Firstly, the applicant was advised that
Matwadia had to write a
letter to the Springs Magistrate’s
Court requesting copies of the docket and obtaining names of the
police officers involved.
As soon as he had done so, he advised the
applicant that he would inform him telephonically as to what he had
received with regard
to the necessary documentation. As Matwadia did
not phone the applicant after three months, the applicant contacted
Matwadia with
the view to finding out what he was doing in relation
to the matter. The applicant was always under the impression that
the criminal
case he had laid against the officers had to be
completed prior to bringing a civil claim. He went to see Matwadia
several times
and on most occasions was not able to see him but on
one or two rare occasions when he was able to see him, Matwadia
advised him
that he had written several letters to the Springs
Magistrate’s Court to obtain the docket and that his letters
had not been
responded to;
7.12 Some time prior to January
2008, Matwadia advised the applicant that the docket had been
transmitted back to the Director
of Public Prosecutions in Pretoria
and that he would attempt to obtain the necessary documentation;
7.13 Some time in February 2008,
the applicant met Detective Lephoto to find out how the case was
proceeding and was advised that
the case had been referred to the
Director of Public Prosecutions in Pretoria and all he could do was
to wait. The applicant did
so and continued to ask what was
happening for months thereafter to be told that the process is
lengthy. The applicant eventually
became increasingly disillusioned
with the slow progress of the criminal matter and the conduct of
Matwadia and duly approached
a senior manager of his employer namely,
Mr Chris Alexiou, at Hichris Heat Treatment where he was employed at
the time with a view
to asking for his assistance in
September/October 2008. Chris Alexiou duly attempted to telephone
Matwadia on several occasions
during October 2008 to find out what
the status of the case indeed was. Matwadia never returned his calls
despite the fact that
Mr Alexiou left several messages for Matwadia
to contact him;
7.14 A director at his place of
employment, namely Mrs Gillian Preston, also attempted to get
involved, and she did the same as
Mr Alexiou from October 2008 and
could not get hold of Matwadia. Mrs Gillian Preston telephoned the
offices of Matwadia almost
on a daily basis and eventually in
November 2008, a lady by the name of Abeda phoned from the offices of
Matwadia and confirmed
that Matwadia had spoken to the Chief
Prosecutor, the police and some others and that he had been given the
run around and was
not able to get any information regarding the
applicant’s file and/or status of the charges against the Metro
Police officers
that had been laid;
7.15 Mrs Gillian Preston then set
about trying to obtain the information herself and started to phone
the offices of the South African
Police Services and could not gain
an answer. Eventually Ms Gillian Preston telephoned around to
numerous Metro Police Stations
and was able to obtain the number of a
Hennie Erasmus who advised that the docket was with another
prosecutor;
7.16 When the applicant did not
hear anything from Matwadia, he eventually decided to leave the
matters in the hands of his employers
to see if they could assist
him, thinking that this may be the correct approach. The applicant
says that he had no knowledge of
the legal requirements for the
bringing of a civil matter against the respondent;
7.17 Eventually the applicant’s
employers could get no word in relation to finding out what was
happening to the matter and
was advised by them to seek the
assistance of their attorney, namely, Mr Martin Gishen of
Gishen-Gilchrest Inc, with regard to
the matter. The applicant says
he duly proceeded to meet Mr Martin Gishen towards the end of May
2009 and Mr Gishen advised him
that the civil claim was distinct from
the criminal matter and that the finalisation of the criminal matter
against the Metro Police
Officers had nothing to do with the success
of bringing a civil action for unlawful arrest, detention and
assault. The applicant
advised Mr Gishen of the events that
pertained to the matter as well as the fact that he had retained an
attorney by the name of
Matwadia who was acting for him in the
matter. Gishen advised that the applicant would have to terminate
his mandate with Matwadia’s
officers in order for him to take
on the matter and that he had to attend to Matwadia to get copies of
his file in order for Gishen
to make a proper assessment of the
matter;
7.18 The applicant approached
Matwadia’s office on several occasions, could not speak to
Matwadia, but requested copies of
his file and requested that he
contact Mr Martin Gishen with a view to dealing with the matter
further in that the applicant had
appointed Mr Gishen to take over
from him with regard to the matter;
7.19 Gishen then sent a letter
dated 28 May 2009 and addressed to Matwadia advising that he had been
instructed by applicant to
proceed against the respondent for
damages, for unlawful arrest and assault and that in order to comply
with the terms of his instructions,
he required a complete copy of
Matwadia’s file, including all papers with regard to the
criminal case and the action for
damages. Furthermore, Gishen
advised Matwadia that the applicant had instructed him to proceed
with a claim for damages for wrongful
arrest and assault;
7.20 The applicant again met
with Mr Gishen on 10 June 2009 and was advised that Matwadia had
failed to answer Gishen’s letter.
Gishen advised that he had
furthermore tried to contact Matwadia on several occasions and left
messages and his calls were not
returned. Gishen then advised the
applicant to attend to Matwadia’s offices to obtain the
relevant documentation. The applicant
attempted throughout June and
July 2009 to make contact with Matwadia and to obtain the file, to no
avail as messages were never
responded to;
7.21 The applicant then received
a summons in a criminal case in July/August 2009 and consulted Gishen
with regard to the matter
and was advised that he had to appear in
Court on 18 August 2009 to face charges, which were not attached to
the summons. Gishen
duly represented the applicant and presumed the
matter may have had some connection to the applicant’s unlawful
arrest on
17 February 2007, particularly as the applicant had
complained about the laying of charges against the Metro Police
concerned to
the Independent Complaints Directorate. Gishen then
said that he would duly deal with the situation and obtain a copy of
the docket,
peruse them and then advise the applicant that
accordingly once he had all the necessary facts. Gishen advised that
the docket
may contain the information required to bring the civil
matter and that Matwadia clearly did not want to provide a copy of
his
file;
7.22 Mr Gishen duly attended the
Springs Magistrate’s Court on 18 August 2008 and requested a
copy of the docket, wherein
it appeared that the complaint launched
with the Independent Complaints Directorate had caused a reaction in
the Police Services
by the police attempting to bring the charges of
reckless, alternatively negligent driving, and drunken driving
against the applicant
based on the facts and circumstances of 17
February 2007. As there was no docket at court on the first
appearance on 18 August
2009 the matter was postponed until September
2009 for trial;
7.23 Gishen duly briefed counsel
to attend to the matter on the said day and to obtain the relevant
docket. The applicant and counsel
attended Court on 22 September
2009 as the State had failed to provide a docket by the aforesaid
date. The docket was provided
on 22 September 2009 and immediately
counsel saw that the charges should be withdrawn as there was no
basis for them and applied
to the Senior Prosecutor in Springs
therefor. The Senior Prosecutor in Springs advised that as the
decision to prosecute had come
from the Director of Public
Prosecutions in Pretoria, they were the only ones who could withdraw
the said charges, and although
the Senior Public prosecutor advised
that there was no basis for the said charges;
7.24 The applicant made written
representations to the Director of Public Prosecutions for the
withdrawal of the charges, and ultimately
on 19 April 2010 as a
result of such representations, the criminal case against the
applicant was withdrawn at the Springs Magistrate’s
Court;
7.25 The applicant states that
he was advised by Mr Gishen that he could not attend to the civil
matter as he did not know how
far Matwadia had proceeded in relation
to any paperwork or, the issuing of any summons in relation to the
civil damages claim.
Having obtained the docket, and reading through
same, it became apparent to the applicant that the bringing of
criminal charges
against him had no merit and he was advised by Mr
Gishen to proceed with the civil claim for assault, wrongful arrest
and wrongful
detention;
7.26 Mr Gishen advised the
applicant that in order to proceed with the damages claim for
assault, unlawful arrest and unlawful
detention, a letter or notice
as contemplated by
section 3(1)(3)
and
section 3(2)
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
had to be sent and that this letter had not been sent
within the period of six months from the date of the incident, namely
17
February 2007, alternatively, when the charges were withdrawn on
23 February 2007. The applicant was advised by Gishen that if
he had
to bring the present application for condonation from the Court in
accordance with
section 3(4)(a)
, (b) and (c) of the abovementioned
Act;
7.27 On the applicant’s
behalf, Mr Gishen sent a letter in accordance with section 3(1) and
section 3(2)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
outside the time limit of six months
as set out above to the respondent. The letter was served by
facsimile transmission and by
delivery on the Municipal Manager of
the respondent in accordance with
section 4
of the abovementioned
Act, and who acknowledged receipt thereof. The applicant seeks to
claim the sum of R200 000,00 representing
damages for assault,
unlawful arrest and unlawful detention, satisfaction, insult, loss of
dignity and shock, pain and suffering
and discomfort, loss of
amenities of life, hospital and medical expenses, dental expenses and
future medical and dental expenses
and other related matters;
7.28 In the final analysis the
applicant submits that it is in the interest of justice that
condonation be granted to him for the
late service of the notice and
his non-compliance with the notice requirements of
section 3(1)
and
3
(2) of the
Institution of Legal Proceedings Against Certain Organs
of State Act for
the following reasons:
(a) The cause of action with regard to his unlawful arrest, unlawful
detention and assault had not been extinguished by prescription;
(b) That good cause exists for
his failure to have sent the requisite notice in accordance with the
provisions of the Act due to
the facts and circumstances set out
above;
(c) The respondent will not be unreasonably prejudiced by failure to
submit the requisite notice;
(d) That the State had gone to
such extremes to frustrate his claim for damages by no proceeding
with the criminal case against
the Metro Police officers for assault,
which still is floating around somewhere, and by trying to scare him
off by bringing unjustified
and unwarranted charges against him as
set out above; and
That the applicant placed his
trust and believed in Matwadia that he would bring a civil damages
claim and that he knew what was
going on with regard to such claims.
It had become apparent subsequent to the applicant in his
discussions and consultations
with Mr Gishen that Matwadia did not
fully understand the procedure and that he was obviously trying to
deal with the situation
where the charges of assault made against
the Metro Police officers would be dealt with prior to making such
claim and that he
was clearly unaware of the time limits as
prescribed by the
Institution of Legal Proceedings Against Certain
Organs of State Act.
[8] From the above, the
applicant’s counsel argued that the claim for damages based on
unlawful arrest, assault and unlawful
detention have not prescribed,
that good cause existed for the failure to send the requisite notice,
and that the respondent will
not be unreasonably prejudiced if the
application for condonation is granted. In addition, as stated
above, it was submitted that
the State had gone to extremes to
frustrate the applicant’s claim by not proceeding with the
criminal charges against the
applicant’s assailants, the Metro
Police, and also by intimidating the applicant by preferring baseless
criminal charges
against him. Furthermore, that the applicant relied
entirely as he claims in the founding papers, on his first attorney,
Matwadia,
who he appointed to prosecute the claim. Further that the
applicant, as a layperson did all in his powers to prosecute the
claim
in which he has reasonable prospects of success. In addition
that the delay in dispatching the notice, when the applicant did,
was
not inordinately long in the circumstances.
[9] In the answering affidavit,
the respondent stresses that the claims have prescribed, that the
applicant delayed unduly, and
that the blame was on his attorneys and
consequently the applicant was not entitled to condonation. It was
also argued on behalf
of the applicant that with regard to the
provisions of
section 12(3)
of the
Prescription Act, quoted
above,
the applicant with limited education, a Standard 7, was not aware of
the relevant circumstances forming the subject-matter
of the causes
of action. Further that during the consultation with his second
attorney Mr Gishen, in May 2009, the applicant still
did not know the
identity of the Metro Police who assaulted, arrested, and detained
him, all unlawfully. That it was only in September
2009 after the
copies of the relevant police docket were obtained, that it became
possible to ascertain the names of the culprits
employed by the
respondent.
[10] Several pertinent questions
arise. The first is when did the debt, not the cause of action,
arise as envisaged in
section 12(1)
of the
Prescription Act. The
second question is whether the applicant’s claims have
prescribed or not. The third question is whether the applicant has
shown good cause entitling him to condonation. In
Truter
v Deyzel
[2006] ZASCA 16
;
2006 (4) SA
168
(SCA) it was held that everything must have happened which would
entitle a creditor to institute action and pursue the claim, namely,
that which would render the debt immediately claimable. That is when
there is a complete cause of action on the facts. It was
further
held that for purposes of prescription “
cause
of action
” meant
every fact which was necessary for the plaintiff to prove in order to
succeed in his claim. This did not comprise
every piece of evidence
which was necessary to prove those facts. A debt (which included a
delictual debt) begin running when
the debt became due, and a debt
became due when the creditor acquired knowledge of the facts from
which the debt arose. The Court
held that, in other words, the debt
became due when the creditor acquired the complete cause of action
for the recovery of the
debt or when the entire set of facts upon
which he relied to prove his claim were in place.
[11] The Courts have, in a
series of cases, emphasised that the time begins to run against a
creditor when it has the minimum facts
that are necessary to
institute action. The running of prescription is not postponed until
a creditor becomes aware of the full
extent of its legal rights. See
Minister of Finance and
Others v Gore NO
2007
(1) SA 111
(SCA). In
Nedcor
Bank Bpk v Regering van die Republiek van Suid-Afrika
2001 (1) SA 987 (SCA),
section 12(3)
of the
Prescription Act was
discussed. The Court concluded as follows:
“
In
dealing with the knowledge of a creditor ‘of the identity of
the debtor and of the facts from which the debt arises’
does
not refer to a ‘cause of action’ but to a ‘debt’,
which in fact merely points to the plaintiff’s
‘claim’,
a narrower concept than ‘cause of action’.
What the Act strives
for is a golden mean between the inequity, on the one hand, of a
potential debtor suddenly being threatened
with court proceedings an
eternity after the occurrence of the events in question and the
inequity, on the other hand, of a potential
creditor forfeiting his
claim for relief merely by reason of the passage of time
where he, without any fault on his
part, did not have the necessary
information at his disposal to launch such court proceedings in the
meantime. Bearing all this
in mind, there is no compelling reason why
a creditor should be fully informed about all the aspects of his
contemplated litigation
before prescription can begin to run against
him. The debtors’ interests should also be taken into account.
What should
be considered is not whether the plaintiff has sufficient
facts at his disposal to prove his case at the end thereof, but
whether
he has the minimum facts at his disposal to begin with it.
”
(See paras [8] to [10] at
995E-996A-B and 996F-997A-B.) In
Drennan
Maud and Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA), the Court held that the requirement in
section
12(3)
of the
Prescription Act, that
the creditor has to exercise
reasonable care, requires diligence not only in the ascertainment of
the facts underlying the debt,
but also in relation to the evaluation
and significance of those facts. This means that the creditor is
deemed to have the requisite
knowledge of a reasonable person in his
position would have to deduce the identity of the debtor and the
facts from which the debt
arises. See also
Kruizenga
and Another v MEC, Economic Affairs and Tourism
[2005] JOL 13909
(CK) where the Court held that the Central
Government was also liable to be sued and that therefore the
plaintiff’s efforts
to establish the exact government
department prior to instituting action, were “
unnecessary
and an act in futility
”.
[12] In the present matter, the
applicant contends that the Metro Police officers who accosted him
declined to furnish him with
the details of what he had done wrong,
and they took a blood sample without him knowing the reason for his
arrest. He only became
aware of all the facts and circumstances
relevant to his claim for assault, unlawful arrest and detention
against the respondent
at the end of May 2009 in consultation with
his second attorney, Gishen. He however, knew that the police
officers involved in
the incident were Metro Police but had no idea
what this precisely meant or how the officers were connected with the
respondent.
He knew the name of at least one of his assailants,
namely, Nkuna. On arrest on 18 February 2007, the applicant was
taken by
his assailants to the Metro Police offices (the offices of
the respondent). These offices are within five minutes drive from
the
South African Police Station at Springs. In the founding papers
the applicant never intimated that he did not know that the traffic
officers involved were connected to the respondent. On 18 February
2007, the applicant went to hospital, and also laid criminal
charges
against the Metro Police officers simultaneously. In April 2007, the
applicant consulted his first attorney Matwadia, furnishing
instructions,
inter
alia
, to institute
civil proceedings against the respondent for assault, unlawful
arrest, and unlawful detention. On his version, the
applicant knew
from inception that he had done nothing wrong and that he was a
victim of unlawful conduct on the part of the Metro
Police. In these
circumstances, the version of the applicant that he only became aware
of the facts and circumstances necessary
to sustain a cause of action
in May 2009, is untenable. He must have known of his intended
proceedings as far back as either 18
February 2007 or the latest,
during April 2007. In any event, as at May 2009, as shown below, the
applicant’s claims were
still extant, prescription wise. Why
the notice in terms of
section 3(1)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act was
only dispatched
on 26 November 2009 has not been satisfactorily explained. Why
summons was not immediately issued and served, has
equally not been
adequately explained. On 1 December 2009, the respondent merely
acknowledged receipt of the notice. Why he took
another year (from
May 2009 to May 2010) to launch the present application for
condonation has similarly not been adequately explained
in order for
the Court to exercise its discretion in favour of the applicant.
[13] In
Minister
of Agriculture and Land Affairs v CJ Rance
2010
(4) SA 109
(SCA) at para [33] the Court said:
“
[33]
In terms of
s 3(4)
(b)
[of the
Institution of
Legal Proceedings Against Certain Organs of State Act],
a
court may grant condonation if it 'is satisfied' that the three
requirements set out therein have been met. In practical terms
this
means the 'overall impression' made on a court by the facts set out
by the parties.
”
(my additions)
At para [39], the Court went on to say:
“
[39]
Condonation must be applied for as soon as the party concerned
realises that it is required. The onus, to satisfy the court
that all
the requirements under s 4
(b)
of the Act have
been met, is on an applicant, although a court would be hesitant 'to
assume prejudice for which [a] respondent itself
does not lay a
basis'.
”
In
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA), at para [12], Lewis JA said:
“
The
very purpose of the provisions allowing condonation is to give a
court a discretion to determine whether the Organ of State
can rely
on non-compliance, whatever form that may take. If this were not so,
as was pointed out by Somyalio AJ in Moise, the requirement
of
written notice as a pre-condition to the institution of legal
proceedings would be in itself an absolute bar to such proceedings
and would constitute a real impediment to the claimant’s access
to court …
”
At para [13]:
“
The
discretion may only be exercised, however, if the three criteria in s
3(4)(b) are met: that a debt has not been extinguished
by
prescription (at issue in this case); that good cause exists for the
creditor’s failure; and that the organ of State
has not been
unduly prejudiced …
”
[14] In the present matter, the
respondent argues that the debt became due on 17 February 2007, when
the applicant was arrested,
and/or when the criminal charges against
him were withdrawn on 23 April 2007. It is not, as contended for by
the applicant, that
the debt instead became due only when he had
knowledge of the identity of the organ of state and the facts giving
rise to the debt
in May 2009. Indeed, the
onus
is on the party that raises the defence of prescription to place
facts before the Courts to prove that the claimant had knowledge
of
the identity of the debtor. In
Gericke
v Sack
1978 (1) SA 821
(A), the Court held:
“
It
is not a principle of our law that the
onus
of proof of a fact
lies on the party who has peculiar or intimate knowledge or means of
knowledge of that fact. The incidence of
the burden of proof cannot
be altered merely because the facts happen to be within the knowledge
of the other party. However the
Courts take cognizance of the
handicap under which a litigant may labour where facts are within the
exclusive knowledge of his
opponent and they have in consequence held
that "less evidence will suffice to establish a
prima
facie
case where
the matter is peculiarly within the knowledge of the opposite party
than would under other circumstances be required".
But the fact
that less evidence may suffice does not alter the
onus
.
”
In the present matter, the
applicant has failed dismally to discharge the
onus
.
The credible evidence show that the incident occurred on 17 February
2007. The applicant opened a case on 18 February 2007 against
the
Metro Police who assaulted him, and who are employed by the
respondent. At that stage he was aware or ought reasonably to have
been aware of the debtor. Between the period 18 February 2007 and 23
April 2007, the applicant had instructed his first attorney,
Matwadia, of Springs to prosecute a civil claim against his
perpetrators for assault, unlawful arrest and unlawful detention (the
subject-matter of the present intended action). By at most, 18
February 2007 or 23 April 2007, the applicant had calculated the
quantum of his damages. Based on these facts, the applicant ought to
have sent to the respondent the notice envisaged in
section 3(1)(a)
of the
Institution of Legal Proceedings Against Certain Organs of
State Act, at
least by October 2007. This was not done. As pointed
out earlier in this judgment, such notice was only sent some two
years later,
namely on 26 November 2007. In the replying affidavit
the applicant contends that he did not have knowledge of all the
facts and
circumstances relevant to his cause of action for unlawful
arrest and unlawful detention until he consulted with his second
attorney,
Gishen, at the end of May 2009. This is simply not so. It
also does not assist the applicant who by the exercise of reasonable
care, should be deemed to have such knowledge. After all, he had
already instructed an attorney to prosecute a civil claim.
Furthermore,
on his version, the applicant has failed to explain
satisfactorily why he took from May 2009 (when he consulted with his
second
attorney, Gishen), to May 2010 when the present publication
was launched. The application for condonation must fail.
[16] In terms of
section 11(d)
of the
Prescription Act, quoted
above, the intended action should
have been instituted within three years from 18 February 2007, or on
the applicant’s version
from April 2007. The claim was
extinguished by prescription in April 2010, as envisaged in
section
4(b)(i)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act. Indeed
, in
Oscon
Domestic Installations CC v Polokwane Local Municipality
2007 JAR 0726 (T), Bosielo J (as he then was) held that it is clear
from
section 11(d)
of the
Prescription Act that
the plaintiff was
obliged to institute his claim within three years of the debt
becoming due. This is so since there is no other
Act of Parliament
which provides otherwise. In
Desai
NO v Desai and Others
[1995] ZASCA 113
;
1996
(1) SA 141
(A), the Court, in comparing the effect of the old
Prescription Act (1943
) to the new
Prescription Act
, at 147A said:
“
One
should also bear in mind that the Act now provides for a so-called
strong prescriptive regime whereby the prescribed debt is
in fact
extinguished, as opposed to the so-called weak prescription under the
old 1943
Prescription Act, which
merely provided for the
corresponding right to become unenforceable, while the debt itself
was extinguished only after 30 years.
”
[17] In viewing the
circumstances and history of this matter cumulatively, the Court
develops intense sympathy for the applicant
who timeously entrusted
this matter to his first attorney, Matwadia. His claims have
prescribed, and his potential debts extinguished.
His attorney,
Matwadia, who initially handled the matter, was clearly negligent and
appears to have been at sea in matters of
this nature. He truly
disappointed the applicant in many ways. To make matters worse, when
his mandate was terminated, he was uncooperative.
The second
attorney, Gishen, he too, was not beyond reproach in further
prosecuting the applicant’s claims. When the claim
finally
prescribed in April 2010, Gishen was the attorney with instructions.
For the applicant, it was the proverbial: “
Out
of the frying pan into the fire
”.
An attorney has certain obligations towards a client upon acceptance
of instructions. See, for example,
Anirudh
v Sunase
2010 (6) SA
531
(N). The Court however, trusts that the applicant will be
assisted in some manner hereafter.
[18] Having found that the
applicant’s claims have in fact been extinguished by
prescription, and that the condonation application
is without merit,
it is unnecessary for me to fully determine the third issue
prescribed in
section 4(b)(iii)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act. This
is the issue
whether the respondent will not be unreasonably prejudiced by the
failure of the applicant to give the prescribed
notice. It is
however clear that to expect a litigant to defend a claim that has
prescribed, would be unjust. Once a claim has
prescribed, it cannot
be revived. See
Lipschitz
v Dechamps Textile GMBH and Another
1978 (4) SA 427
(C) at 430F. The three requirements contained in
section 4(b)
of the above Act, and the respect in which the Court
must be satisfied before granting condonation, are clearly
conjunctive.
[19] For all the above reasons, I find that the applicant’s
claims have prescribed. I also find that the applicant has failed
dismally to comply with section 3(1) of the Act (Institution of Legal
Proceedings Against Certain Organs of State Act), and consequently
failed to show good cause for condonation of his non-compliance with
section 3(4)(b) of that Act.
[20] In the result the following order is made:
1. The application for condonation in terms of section 3(4)(b) of
the Institution of Legal Proceedings Act Against Certain Organs
of
State 40 of 2002, is dismissed.
2. The applicant is ordered to pay the costs of the application.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT L C
LEYSATH
INSTRUCTED
BY GISHEN-GILCHREST INC
COUNSEL FOR THE RESPONDENT D L
WILLIAMS
INSTRUCTED BY IVAN
DAVIES-HAMMERSCHLAG
DATE OF HEARING 9 DECEMBER
2010
DATE
OF JUDGMENT 7 APRIL 2011