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[2015] ZAGPJHC 10
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Makhwelo v Minister of Safety And Security (2013/26724) [2015] ZAGPJHC 10; 2017 (1) SA 274 (GJ) (3 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/26724
DATE:
03 FEBRUARY 2015
In
the matter between:
MAKHWELO,
BUSANI
..........................................................................................................
Applicant
And
MINISTER
OF SAFETY AND
SECURITY
.......................................................................
Respondent
JUDGMENT
SPILG
J:
3
February 2015
THE
APPLICATION
1.
This is an urgent application to condone
the late delivery of a notice of intention to institute legal
proceedings against the Minister
of Police under the dispensation
provisions of section 3(4)(a) of the Institution of Legal Proceedings
Against Certain Organs of
The State Act, 40 of 2002 (‘
the
Act’
).
2.
The matter is claimed to be urgent because
the trial is set down for the following day.
BACKGROUND
3.
The applicant alleges that he was
unlawfully arrested and detained by members of the South African
Police Service (‘
SAPS’
).
The arrest was effected on 10 March 2012 and he was detained for over
a year until April 2013 when charges were withdrawn and
he was
released.
4.He
also claims that as a consequence he lost employment and hence his
salary during the period of his detention.
5.
On 20 June 2013 the applicant gave notice
of his intention to institute legal proceedings in terms of section
3(2) (a) of the Act.
The summons was subsequently served on 23 July
2013.
THE
PROCEEDINGS
6.
The plaintiff’s summons contains two
distinct claims, the first for unlawful arrest and detention (claim
A) and the other
for special damages arising from the loss of income
sustained while in detention (claim B).
7.
Initially the amount under claim A was for
R182 500 000 and under claim B for R44 208.
Pursuant
to a notice, the particulars were formally amended on 9 December 2014
and the amount for claim A was increased
to R7.84 million
reckoned at damages sustained of R20 000 for each day in
detention.
8.
The original plea consisted of bald denials
and no grounds were set out to justify the arrest and continued
detention of the applicant.
9.
In paragraph 11 of the original particulars
of claim the applicant alleged that the section 3 notice of
institution of legal proceedings
had been properly given and attached
a copy of the notice. These allegations were responded to by way of a
rolled up plea resulting
in the applicant not knowing whether the
respondent denied that any notice had been given, or that the notice
given was not the
one attached to the claim or was not received on
the date alleged. The plea therefore offended the requirement that a
denial must
be unambiguous. See
FPS Ltd
v Trident Construction (Pty) Ltd
1989
(3) SA 537
(A) at 542.
10.
A pre-trial conference was held on 4
December 2014. The applicant indicated that he would be amending the
particulars of claim and
the respondent confirmed that it would
effect consequential amendments to its plea. The respondent did not
indicate that it was
proposing to effect substantial amendments to
its own plea or that it would be introducing special pleas. Although
not recorded
in the pre-trial minute it appears to be common cause
that the respondent requested the plaintiff for a copy of its section
3(a)
notice. As indicated earlier this document had been attached to
the original summons.
11.
The amended particulars were filed,
subsequent to which a completely revised plea was served just before
13h00 on Friday 23 January
2014.
The
amended plea contained two special pleas which addressed matters
unaffected by the amendments. The special pleas therefore did
not
arise as a consequence of any amendment to the particulars of claim.
The plea also substituted the bare denial of a wrongful
arrest and
detention with a confession and avoidance plea which justified the
applicant’s arrest and detention on the ground
that ‘
he
was reasonably suspected of having committed the offence of murder
and armed robbery’
.
12.
The first special plea averred that the
applicant had failed to give the statutory notice within the six
month period required under
section 3(2)(a) of the Act and that
therefore the claim fell to be dismissed. The second special plea
averred that the National
Prosecuting Authority (‘
NPA’
)
should have been joined.
13.The
amended plea was served two court days before the trial date. The
applicant took the position that it was entitled to seek
an urgent
order condoning the late delivery of the statutory notice.
14.
Instead of bringing the application before
the trial court, the applicant believed that the urgent court could
make a determination
and if successful he could then proceed to
trial. The applicant’s legal team appears to have taken the
view that the issues
arising from the second special plea were
straightforward and would be readily disposed of by the trial court.
The basis appears
to be that the applicant only had to prove 1%
liability against any person who had caused or contributed to the
loss sustained
in order to recover the full extent of his damages,
leaving it for the respondent to claim an apportionment from any
joint wrongdoer.
The common thread relied upon in each claim is the
alleged wrongful actions or statements by the police on which the
prosecution
and court subsequently relied.
SECTION
3 OF ACT NO 40 OF 2002
15.
It is convenient to set out the relevant
provisions of section 3 of the Act in order to appreciate the point
taken by the respondent
and the basis upon which condonation may be
sought to overcome a failure to give notice. Section 3 reads:
3(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless -
(a)
the creditor has given the organ of
state in question notice in writing of his or her or its intention to
institute the legal proceedings
in question; or
(b)
the organ of state in question has
consented in writing to the institution of that legal proceeding(s) –
(I) without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in ss (2).
(2)
A notice must –
(a)
within six months from the date on
which the debt became due, be served on the organ of state in
accordance with s 4(1); and
(b)
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 ss (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
(b)
a debt referred to in section 2(2)(a), must be regarded as
having become due on the fixed date.
(4)(a)
If an organ of state relies on a creditor's failure to serve a notice
in terms of ss (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 para (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 para
(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.
THE
ISSUES
16.
The respondent raises a number of grounds
for opposing the present application. The first is that the matter is
not urgent. The
next point is that the urgent motion court is
not the proper forum to hear the matter.
It
is also contended that the application had to allow the respondent a
proper opportunity to ventilate the issues raised by the
condonation
sought and that, by abridging the time limits, the applicant had
effectively prevented it from being afforded a fair
opportunity to
respond.
Finally,
and in response to an enquiry from the court as to whether the matter
was not one of law, the respondent contended
that the applicant
was obliged to give the statutory notice within 6 months reckoned
from the date when the applicant was arrested
on 10 March 2012 and
not calculated from the date of his release in April 2013.
URGENCY
AND CORRECT FORUM
17.
The respondent raised its special pleas
only two court days before the trial was due to commence.
It
is difficult to appreciate how the applicant could have anticipated
that a special plea of non-compliance would be raised at
the eleventh
hour when this issue should have been pleaded well over a year
earlier in November 2013 at the time the plea was delivered.
In
this regard the bald denial contained in the body of the original
plea does not qualify as adequate notice since want of compliance
with a statutory notice of this nature is a dilatory plea which is
self standing and must be pleaded specially (see
Labuschagne
v Labuschagne; Labuschagne v Minister van Justisie
1967(2)
SA 575 (A) at 583D-G and
Masuka v
Mdlalose
1998 (1) SA 1
(SCA) at 11F-).
The fact that the respondent considered it necessary to introduce a
special plea which specifically averred that
the notice had to be
given in terms of the Act within six months from the date of
arrest bears sufficient testimony to this.
18.
The third point taken indicates that if the
application for condonation was to be brought before the trial court
then the respondent
would insist on a postponement in order to be
afforded the full period provided for under the rules to file an
answering affidavit.
The effect is that the trial would not proceed,
a new trial date would have to be applied for and the condonation
application
would be placed on the ordinary opposed motion court for
hearing in due course.
19.
This much is evident because the respondent
relied on the judgment delivered on 11 April 2011 by my brother
Sutherland AJ (at the
time) in
Labuschagne
v Minister of Safety and Security and another
(unreported;
SGHC case no 18769 of 2009) . In that case the defendant submitted
that condonation could not be applied for from the
bar because the
Act required a formal application.
The
court said at pp19 and 20 of the typed judgment that;
“
Part
of the rationale for that submission was that, given the three
criteria which have to be met, stated in subsection 3(4), the
fact
that it has not been extinguished by prescription, that good cause
exists for the failure not to bring the notice timeously
to the
attention of the defendant and that there was no unreasonable
prejudice to the defendant, the only way to ventilate these
matters,
was to do so on affidavit in
a
formal application which would come before the motion court.
This
must be correct….
It
seems to me plain that on a fair interpretation of the section
prescribing the procedure for condonation, it is intended that
a
court conduct an enquiry into the circumstances for the failure. It
is not possible to do so simply by entertaining submissions
from the
bar.
…
..
Understandably
and particularly with reference to the passage I have alluded to by
Heher JA, the defendant needs to be heard on
these matters in order
for them to be properly investigated.
[1]
(emphasis
added)
20.
The difficulty that confronts the
respondent in relying on the passages in
Labuschange
and its application of Heher JA’s
statements in
Madinda
is
that the defendant in that case had filed its special plea one and a
half years before the plaintiff, for the first time through
counsel
from the bar on the trial date, informally sought to apply for
condonation under section 3(4). It is also for this reason
that the
application in
Labuschagne
could
not have been brought as one of urgency under rule 6(12). The court
was therefore not required to consider the application
of this rule
in a suitable case.
21.
In the present case the respondent is the
author of the urgency by filing its special plea only two court days
before the date of
trial. Moreover in the circumstances of the case
it might have been open for the applicant to argue that the special
plea amounted
to a withdrawal of an admission.
It
should therefore not be allowed the benefit of the ordinary time
periods to file an answering affidavit unless it can demonstrate
prejudice and tenders the wasted costs of trial on an appropriate
scale.
22.
The question before this court is whether
the requirements for urgency have been satisfied. This will include
an enquiry into whether
the respondent was responsible for creating
the urgency through delay. If the answer is in the affirmative then
the respondent
cannot be heard to complain of the short time provided
within which to answer. At best, if it can demonstrate prejudice
because
of an inability to prepare an answering affidavit in time and
also explain the reason for the delay, then it will bear the
applicant’s
trial costs should a postponement be necessitated.
23.
The first issue is whether a court should
ensure as far as possible, and in the absence of prejudice, that a
matter should proceed
on the date allocated for the trial hearing.
The answer appears obvious. The procedures governing trial actions
are directed to
that end.
24.
This division has also implemented case
management procedures with the objective of disposing of action
proceedings efficiently
and fairly. To this end pre-trial conferences
in damages claims have been conducted before judges in an attempt to
ensure that
matters which are capable of proceeding are trial ready.
This is achieved,
inter alia
,
by requiring amendments to be brought in good time before the
hearing.
These
interventions by the court recognise the litigant’s entitlement
to have his or her case heard and finalised within a
reasonable time.
They also recognise the need to utilise the court’s resources
efficiently.
Accordingly,
absent prejudice, it is a court’s function to facilitate that a
matter proceeds to trial on its allocated date.
25.
The applicant submits that the matter is
urgent because if the condonation application cannot be decided by
the date of trial then
there will be an inevitable postponement of
the trial despite the applicant and his legal team having prepared
for the case. The
applicant contends that this will delay the hearing
for up to a year before another trial date is obtained.
26.
The significant resources that a
conscientious litigant and his legal representatives must dedicate in
time, effort and money (including
in cases of contingency
litigation) to ensure that a case is trial ready on the date
allocated and the resources of the judiciary
that are directed to
facilitate the hearing on the allocated date warrant finding that an
application should be heard as one of
urgency if it’s objective
is to overcome an obstacle created at the last moment by the other
party to trial proceeding, provided
of course there is no prejudice.
27.
In the present matter an outcome favourable
to the applicant will obviate a postponement of the trial for
potentially a substantial
time.
In
my view placing a matter before the urgent court to determine if
condonation should be granted will achieve that objective. The
objective is unlikely to be achieved if the application is brought
before the trial court as the respondent has already indicated
that
it will rely on
Labuschagne
and
insist that it be afforded the ordinary time limits within which to
deliver an answering affidavit. The trial court however
does not have
the capacity to postpone an application for the filing of answering
and replying affidavits in the ordinary course
and then still be able
to hear the trial if condonation is granted. The trial roll does
cater for it.
28.
It also appears to be proper practice for a
section 3(4) condonation application to be brought before a motion
court and resolved
before the matter comes to trial. It is for
this reason that the second special plea stands on a different
footing. That
being so, an applicant is entitled to rely on rule
6(12) in appropriate circumstances to contend that the ordinary forms
and time
limits for motion proceedings be abridged.
29.
I had discussed with the learned Deputy
Judge President the advisability or otherwise of the urgent court
considering the application
rather than the trial court. The Deputy
Judge President endorsed this approach on practical grounds in
appropriate circumstances
as it did not unduly burden the trial judge
with skirmishes when matters are meant to be trial ready on the
allocated date. It
also allowed an allocation of a trial at roll call
because there was a determination on an issue that might otherwise
have been
the subject of an opposed postponement at trial.
NO
OPPORTUNITY TO RESPOND
30.
The respondent did not file opposing papers
and claims that it wishes to do so.
31.
The inability of the respondent to prepare
an affidavit is of its own making. It elected to amend its plea at
the last minute and
introduce a substantive dilatory plea. The
respondent received the section 3(4) condonation application
yesterday at just after
10am. It effectively had just over a day to
file answering affidavits in relation to a matter which would have
been essentially
covered when preparing for trial. It also should
have anticipated such an application when belatedly serving its
special plea.
One would have thought that if it had seriously
deliberated over the matter before introducing the special plea, as
one would expect
of a litigant, then it would already have been able
to deal with at least with the issue of prejudice.
32.
Instead it sat idly by and waited until the
hearing set down for 14h00 today before claiming that the ordinary
time limits should
apply to filing an answering affidavit. The
respondent did not afford the applicant that opportunity when it
introduced the special
plea on the eve of the trial. The respondent
cannot elevate its own tardiness into a virtue.
Moreover
no explanation was offered as to why it could not present the court
with an affidavit setting out its opposition to the
application.
33.
Ordinarily a court will allow the
respondent an opportunity to put its version on affidavit. In the
present case I believe that
the respondent had a sufficient
opportunity to do so but elected not to.
34.
Moreover the facts relied upon by the
applicant are straight forward. He states the following in the
application;
“
I
firmly believe that I instituted legal action at an appropriate
moment in that had I instituted action within six months, I would
have been claiming my damages in a piecemeal (
fashion).
35.
It is also evident that the applicant
believed that the notice was in time but seeks condonation if he is
wrong and that the period
of six months only commenced on his release
from detention and not from the time of arrest.
36.
The
respondent therefore appears to be making a mountain out of a
molehill. The debt itself did not prescribe at the time
summons
was served and the issues as identified are whether the applicant had
a reasonable explanation for being out of time (as
all the other
elements of showing ‘
good
cause’
are readily established
[2]
)
and if the respondent is ‘
not
unreasonably prejudiced’
[3]
.
See generally
Madinda
at
para 15.
37.
However in my view there is a preceding
question; namely, whether there is any need to apply for condonation
if the applicant’s
belief is legally correct. If I find that it
is but another court finds that I am wrong then that in itself should
suffice for
satisfying the requirement of a reasonable explanation,
leaving open only the question of unreasonable prejudice.
38.
Realistically the issue of a reasonable
explanation could easily have been challenged if the respondent
bona
fide
believed that the explanation
offered did not pass muster.
Secondly,
unreasonable prejudice, if it existed, could readily have been dealt
with in an affidavit prepared on receipt of the application.
If the
respondent had prepared for trial, and it did not claim otherwise at
the pre-trial conference, then the legal representatives
would have
had at their fingertips knowledge of the difficulties that the late
notice presented in their ability to gather evidence.
Moreover
the failure to pertinently raise the special plea when the respondent
first pleaded reinforces the conclusion that the
issue was not of any
moment. Had they been prejudiced then it would have loomed large both
at that stage and now.
Finally
the defendant did not claim trial prejudice at the pre-trial
conference.
39.
In short if the respondent had something to
say about either the want of a reasonable explanation or of
unreasonable prejudice then,
in circumstances which were of its own
making, the respondent was obliged to present those facts to this
court when the matter
was called. It did not do so and every relevant
factor indicates that it could not, despite the court receiving
confirmation from
the respondent’s counsel that he had prepared
for trial.
40.
Accordingly I am satisfied that the
respondent had an opportunity to respond and the attorney would have
had the facts supporting
prejudice, if it existed, readily to hand by
this late stage of preparation. The respondent has itself to blame
for not filing
an answering affidavit but rather electing to
bat it out on technicalities when it’s belated special plea was
the cause
of the condonation application being brought as one of
urgency before the trial date.
DUE
DATE OF DEBT
41.
In terms of section 3(1)(a) of the Act no
legal proceedings may be instituted against an organ of state unless
a notice of intention
to do so is given.
42.
Section 3(2)(a) provides that the notice
must;
“
(a)
within six months from the date on which
the debt became due, be served on the organ of Sate and
(b)
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
43.
The
present cause of action arises from a delict under the
actio
iniuriarum
(leaving aside the special damges claim). A delictual debt becomes
due in terms of section 3(3)(a) of the Act when the creditor
has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt or when, with the exercise of reasonable
care
he or she could have acquired such knowledge, unless the organ of
state wilfully prevents the creditor from acquiring such
knowledge.
Compare
Protea
International (Pty) Ltd v Peat Marwick
H
Mitchell
& Co
1990
(2) SA 566 (A)
at
569E and
Abrahamse
v East London Municipality; East London Municipality v Abrahamse
1997 (4) SA 613
(SCA)at 625E-G.
44.
In a case of wrongful arrest and detention
Shearer J in
Ngcobo v Minister of
Police
1978 (4) SA 930
(D) at 932G –
935H reluctantly considered himself bound by the appellate division
authority of
Slomowitz v
Vereeniging Town Council
1966 (3) SA 317
(A) on the basis that the learned judge could find no sufficiently
distinguishing feature (at 935A).
Ngcobo
and
Slomowitz
were subsequently applied by the SCA in
Lombo v African National Congress
2002 (5) SA 668
(SCA) in the following manner at paras 26 and 27;
[26]
The appellant's position is somewhat different in regard to his claim
for unlawful detention. His cause of action in this respect
did not
arise once and for all on the day he was first detained, nor did it
first arise on the day of his release from detention.
His continuing
unlawful detention (if such it was) would notionally have given rise
to a separate cause of action for each day
he was so detained (Ngcobo
v Minister of Police1978 (4) SA 930 (D), following Slomowitz's case
supra). The decision in Ramphele
v Minister of Police1979 (4) SA 902
(W), if not distinguishable on the facts, must be taken to have been
wrongly decided.
[27]
On his release in August 1991 the provisions of s 13(1) would have
entitled the appellant to claim damages for wrongful detention
for
the full period of his detention provided he instituted action within
the prescribed one-year period, something he failed to
do. However,
the three-year prescriptive period provided in s 11(d) of the Act
preserved any claim for unlawful detention arising
within the period
of three years preceding the service of summons on 22 November 1993.
His claim for unlawful detention for
the period 23 November
1990 until his release in August 1991 would therefore still be
extant. Any claim for wrongful detention
arising before 23 November
1990 will have been extinguished by prescription in accordance with
the principles enunciated above.
45.
Lombo
and
the
Ngcobo
case
it referred to relied on
Slomowitz
to
hold that wrongful detention is a continuing wrong which commences on
the date of detention and continues with a daily succession
of
wrongful acts with the result that prescription runs separately in
respect of each wrongful act.
46.
It however bears mention that
Slomowitz
was not concerned with wrongful arrest
or detention.
In
that case the plaintiff sued the local municipality for the alleged
wrongful closure of a street for a period of nearly four
years from
February 1960 until mid-December 1963. The plaintiff claimed that as
a result he suffered damages in the form of loss
of rental. The
summons was served on 24 March 1964. The defendant contended that any
cause of action had prescribed because it
should have been brought
within six months of it arising and relied on the provisions of the
Transvaal Local Government Ordinance,
17 of 1939 (T). The high court
held that the cause of action arose on the date when the road
was closed and the plaintiff
was non-suited in respect of his entire
claim.
The
then appellate division upheld the appeal and found that the closure
of the road constituted a continuing wrong which vested
the
plaintiff with a cause of action against the respondent throughout
the period that the road remained closed. The plaintiff
was therefore
entitled to damages for the period commencing six months prior to the
service of summons (ie; from 25 September
1963) until the road
was re-opened.
47.
It is evident that all three cases confined
the enquiry to whether there was a single wrongful act which had a
continuing injurious
effect or whether there was a continuing wrong
which until it ceased created a series of individual debts. See LAWSA
vol 21 (2
nd
ed) para 125 against ftn 32.
48.
In my respectful view the cases beg the
question of when a debt first arises for purposes of a section 3(2)
notice in the case of
unlawful arrest and detention without a
warrant.
49.
So viewed there appears to be a distinction
between a case where the commencement of the debt arises by reason of
an objectively
observed event (such as the road closure) or the
infliction of bodily harm under the
lex
Aquilia
and the case of wrongful
arrest and detention without a warrant which requires the wrongdoer
to have effected the arrest
on the grounds of a reasonable suspicion
that a scheduled offence had been or was about to be committed.
50.
The following distinguishing features are
with respect apparent. Firstly in the
Slomowitz
case the wrongful act was the closure
of a public road because there had been no prior notice or
advertisement as required by sec.
67 of the Local Government
Ordinance, 17 of 1939. All the facts giving rise to the debt were
therefore known and were not dependent
on the state of mind of the
offending authority.
In
the case of a claim for bodily injury the debt only becomes due when
the identity of the wrongdoer can be reasonably ascertained,
such as
the doctor or anaesthetist whose acts or omissions resulted in
a botched operation at a provincial hospital. It is
in this context
that the once and for all rule relating to claiming damages arises.
Our law requires that prospective loss (such
as damages for future
medical expenses, loss of earning capacity and the general damages
for continued pain and suffering) must
be claimed in a single action
covering both past and future damages. This is readily appreciated
where a single injury was inflicted
which has past and which
has caused or contributed to
sequelae
that continue to cause damage or loss.
By
way of illustration, in
Truter and another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at paras 22 and 23 van Heerden JA expressed the
position as follows;
“
[22]
In accordance with the so-called 'once and for all' rule, a plaintiff
must claim, in one action, all damages, both already
sustained and
prospective, flowing from one cause of action. Therefore, a
plaintiff's cause of action is complete as soon
as some damage
is suffered, not only in respect of the loss already sustained by him
or her, but also in respect of all loss sustained
later.
[23]
Applied to the facts of this case, Deysel's cause of action was
complete and the debt of Drs Truter and Venter became due as
soon as
the first known harm was sustained by Deysel , notwithstanding the
fact that the loss of his right eye occurred later.”
51.
Another difficulty that arises in
determining when a debt under an Aquilian action falls due is the
requirement of culpability in
the form of at least negligence
as opposed to mistake. Again
Truter
dealt with the distinction courts have
drawn between fact on the one hand and evidence or conclusions
of law on the other
in determining when a debt is due for purposes of
prescription. Van Heerden JA explained it as follows in paras
16 to 21;
[16]
… For the purposes of the Act, the term 'debt due' means a
debt, including a delictual debt, which is owing and payable.
A debt
is due in this sense when the creditor acquires a complete cause of
action for the recovery of the debt, that is, when the
entire set of
facts which the creditor must prove in order to succeed with his or
her claim against the debtor is in place or,
in other words, when
everything has happened which would entitle the creditor to institute
action and to pursue his or her claim.
[17]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute factual ingredients of the cause of action,
but are
legal conclusions to be drawn from the facts:
'A
cause of action means the combination of facts that are material for
the plaintiff to prove in order to succeed with his action.
Such
facts must enable a court to arrive at certain legal conclusions
regarding unlawfulness and fault, the constituent elements
of a
delictual cause of action being a combination of factual and legal
conclusions, namely a causative act, harm, unlawfulness
and
culpability or fault.'
[18]
In the words of this Court in Van Staden v Fourie:
'Artikel
12(3) van die Verjaringswet stel egter nie die aanvang van verjaring
uit totdat die skuldeiser die volle omvang van sy
regte uitgevind het
nie. Die toegewing wat die Verjaringswet in hierdie verband maak, is
beperk tot kennis van "die feite
waaruit die skuld ontstaan".'
[19]
'Cause of action' for the purposes of prescription thus means
'.
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment
of
the Court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which
is
necessary to be proved.'
[20]
As contended by counsel for Drs Truter and Venter, an expert opinion
that a conclusion of negligence can be drawn from a particular
set of
facts is not itself a fact, but rather evidence. As indicated above,
the presence or absence of negligence is not a fact;
it is a
conclusion of law to be drawn by the court in all the
circumstances of the specific case. Section 12(3) of the Act
requires
knowledge only of the material facts from which the debt arises for
the prescriptive period to begin running - it does
not require
knowledge of the relevant legal conclusions (ie that the known facts
constitute negligence) or of the existence of
an expert opinion
which supports such conclusions.
[21]
Mlonzi AJ appears to have relied on the judgment of this Court in the
recent case of Van Zijl v Hoogenhout for her conclusion
that
knowledge of fault is a requirement for the commencement of the
running of prescription. In my view, she erred in so
doing. The
Van Zijl case is entirely distinguishable from the present case. In
the Van Zijl case Heher JA held that, where the
prescription statute
speaks of prescription beginning to run when a creditor has
knowledge, 'it presupposes a creditor who is capable
of appreciating
that a wrong has been done to him or her by E another'.
The plaintiff in the Van Zijl case was found,
on the facts, to have
lacked capacity for many years to appreciate that a wrong had been
done to her and that this had therefore
delayed the commencement of
the running of prescription. By contrast, in the present case, it is
abundantly clear that Deysel believed
and appreciated from as
early as 1994 that a wrong had been done to him by Drs Truter and
Venter.
52.
It is also accepted that the debt must be
immediately claimable for it to be due for the purposes of
prescription. In
Deloitte Haskins &
Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty)
Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A) at 532H the
court said;
‘
This
means that there has to be a debt immediately claimable by the
creditor or, stated in another way, that there has to
be a debt in
respect of which the debtor is under an obligation to perform
immediately. See The Master v I L Back & Co Ltd
and Others1983
(1) SA 986 (A) at 1004, read with Benson and Others v Walters and
Others1984 (1) SA 73 (A) at 82. It follows that
prescription cannot
begin to run against a creditor before his cause of action is fully
accrued, ie before he is able to
pursue his claim (cf Van Vuuren v
Boshoff1964 (1) SA 395 (T) at 401).’
53.
In summary;
a.
A debt is due only when;
i.
the material facts from which the debt
arises are known, or when they ought reasonably to have been known
(see
Truter
);
and provided
ii.
it is immediately claimable and the debtor
is obliged to perform immediately ( see
Deloitte
Haskins)
;
b.
the material facts do not include knowing
that the actions were culpable as culpability, whether in the form of
negligence or otherwise,
is a conclusion of law drawn from the
evidence. The presence or absence of negligence is therefore not a
fact for these purposes
(see
Truter
)
54.
In the case of wrongful arrest and
detention without a warrant the plaintiff must prove that the
arresting officer had no reasonable
suspicion that he had or was
going to commit a scheduled offence. The plaintiff must also be able
to quantify the damages suffered.
This
results in a number of further distinguishing features which are
possibly unique to claims for wrongful arrest and detention
without a
warrant. I attempt to deal with them in the following paragraphs.
55.
As to the first requirement of knowledge of
the material facts: It is difficult to appreciate that at the time of
the arrest or
even during detention the suspect would have sight of
the docket in order to form a view that the arresting officer did not
have
a reasonable suspicion that an offence had been committed. The
officer may have received a fabricated complaint from alleged
eyewitnesses
who were intent on falsely incriminating the suspect for
their own ends.
Accordingly
the complainant would not know at the time of arrest whether the
arresting officer was reasonably relying on the accounts
of a
complainant who turned out to be fabricating events (in which case
the claim would lie against the complainant and not the
police) or
whether the arresting officer in fact did not have a reasonable
suspicion that the suspect had committed the offence.
Since
the docket is not available to an accused until the investigation is
completed and he is presented with the indictment, it
is most
unlikely that the identity of the complainant or the evidence
that was available when the arrest was made would be
known to a would
be plaintiff . Without that knowledge a plaintiff cannot assume that
the arresting officer was acting unlawfully
when effecting the arrest
rather than that the complainant had falsified a charge against him.
56.
The claim for wrongful arrest and detention
has always been treated as a single cause of action. Each involves at
least an aspect
of the deprivation of liberty and the wrongful
deprivation of liberty by the police is inextricably dependent on it
being shown
that the arresting officer could not have formed a
reasonable suspicion that an offence had been or was going to be
committed.
Under
common law a claim for unlawful arrest and detention is not only a
delict based on an infringement of liberty but also
of the
rights to dignity, reputation, and personal integrity. See
Matthews
and Others v Young
1922 AD 492
at 503. See also
Mabaso v Felix
1981 (3) SA 865
(A);
Minister of law and Order & Others v
Hurley & Another
1986 (3) SA 568
(A) 589E-F;
Minister van
Wet en Orde v Mtshoba
1990 (1) SA 280
(A)284E H and 286B C; and
Law of Damages
by PJ Visser and J Potgieter, 1993 para 7.3,
footnote 128.
A
delictual claim for damages may also be brought in terms of Section
12(1)(a) of the Constitution. By definition such a claim is
based on
the unreasonable and unjustifiable infringement of an individual’s
right not to be arbitrarily deprived of freedom
or to be so deprived
without just cause. See
Zeeland v Minister of Justice and
Constitutional Development & Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC), at
paras 24, 25 and 35.
See
also
Takawira v Minister of Police
[2013] ZAGPJHC 138 at paras
26 to 29.
57.
Unlike a claim under the
lex
Aquilia
or possibly other causes of
action where it is accepted that prospective damages must be assessed
and claimed up front, it is impossible
to assess a claim for damages
based on speculating when the criminal trial of a person held in
custody might be finalised or if
charges might be dropped at
some earlier stage.
Accordingly
the fundamental rationale for calculating prospective damages is
wanting; namely that either there was a single injury
which has
resulted in
sequelae
that can be assessed provided suitable
contingency factors are taken into account and on which actuarial
assessments can be made,
or that prospective damages can be
determined on a daily basis as long as the harm continues and for
which contingencies are capable
of some rational assessment.
Personal
injury cases illustrate the former. S
lomowitz
illustrates
the latter as the claim was for loss of rental income that could be
realistically assessed for every month, or
part of it, that the road
was blocked.
In
the case of wrongful arrest, damages are not reckoned at a daily rate
but by reference to the overall length of incarceration
and the
degradation suffered. Case law confirms that it is not a simple
matter of multiplication. See generally
Minister
of Safety and Security v Seymour
2009
(6) SA 320
(A).
58.
Unique considerations are involved in cases
of wrongful arrest and detention because other delicts involve either
physical injury
, damage to or loss of property or involve an
objectively ascertainable failure to comply with formalities that
renders the
action unlawful and which are not dependent on the
outcome of criminal proceedings (eg;
Slomowitz
).
In
the case of an arrest and detention there is a
deprivation of liberty and loss of dignity which will be justified
if
there is a conviction. It is difficult to appreciate how a debt can
be immediately claimable and therefore justiciable
which is the
second requirement for a debt being due (see
Deloitte
Haskins
) prior to the outcome of the
criminal trial or prior to charges being dropped or otherwise
withdrawn.
59.
During my research I was fortunate to find
that the SCA had considered this issue in
Unilever
Bestfoods Robertsons (Pty) Ltd v Soomar
2007 (2) SA 347
(SCA). The case concerned a special plea of
extinctive prescription on a debt that was claimed to be in part one
of abuse of legal
process. In this context the learned judge of
appeal said the following at paras 25 to 29;
[25]
Because he knew all the facts necessary to establish this claim (on
the assumption that I have made that he had a claim) more
than three
years before the proceedings commenced, the only basis on which he
can resist a plea of prescription is by pointing
to an essential
element of his cause of action which only came into existence less
than three years before the institution of the
proceedings. In the
present case he endeavours to do this by relying on such cases as
Lemue v Zwartbooi (supra) and Els v Minister
of Law and Order (supra)
and contending that he could not institute this part at least of his
claim until the customs action and
the attachments and the
garnishment had been withdrawn. The principle underlying the cases
relied on was stated by De Villiers
CJ in Lemue's case (at 407)
in the following terms: 'While a prosecution is actually pending its
result cannot be allowed
to be prejudged in the civil action.' A
different reason for the rule was given by Solomon J in Bacon v
Nettleton (supra). He said
(at 142 - 3):
The
proceedings from arrest to acquittal must be regarded as continuous,
and no personal injury has been done to the accused until
the
prosecution has been determined by his discharge.'
Both
reasons were cited with approval by Eksteen J in Thompson's case
(supra) at 375B - C.
[26]
The reason given in Bacon v Nettleton need not detain us long. In
this case the first plaintiff does not allege a continuous
wrong nor
that he suffered an injury to his reputation and good
name only when the customs action and the attachment
and garnishment
were withdrawn. On the contrary he says that the institution of the
action and the acts of attachment and garnishment
caused the injury.
[27]
The reason given in Lemue's case, the need to prevent the prejudging
of the pending action, calls for further consideration.
Doctor C F
Amerasinghe in his Aspects of the Actio Iniuriarum in Roman-Dutch Law
says (at 22) that 'reasons of legal policy which
have not been
expressly formulated seem to have made the termination of the
proceedings in favour of the plaintiff a requirement
of the iniuria
[of malicious prosecution]'. Lemue's case indicates what one at least
of the policy considerations is: a court hearing
a malicious
prosecution case should not be called on to prejudge the findings of
the criminal court. Equally, in my view, it is
clear that an accused
should not be allowed to launch what amounts to a pre-emptive strike
against a prosecution pending against
him by suing the complainant
for damages. Furthermore it is undesirable that a party who
loses a case before one tribunal
should be allowed to attack the
judgment, not on appeal, but in another court, with the resultant
possibility of conflicting judgments
and what one may describe as
judicial discord. A convicted accused who has not appealed or whose
appeal has failed should
not be allowed to assert in
other proceedings that his conviction was unjust and if he cannot do
so after conviction, he should
not be allowed to do so before he is
convicted but while the prosecution is still pending.
[28]
I am prepared to assume for the purposes of this case that this
principle also applies to cases involving the abuse of
civil and what I have called fiscal proceedings.
[29]
These considerations only really apply when the judgment in question
is or may be given against the party seeking in other
proceedings to
controvert or anticipate a finding given or to be given against him.
…
60.
It is significant that the SCA dealt in
para 15 with the aspect of whether the debt was due on this ground
after having considered
Slomowitz
in
relation to the question of whether there was a continuing wrong. In
my respectful view this reinforces the consideration expressed
earlier that there remains a second leg to the enquiry that was not
put before the SCA in
Lembo
and
which it was unnecessary to consider in
Slomowitz
as it did not concern a case of
wrongful arrest and detention.
Unilever
also answers the concern Shearer J
expressed in
Ngcobo.
A
close reading of the judgment of Eksteen J in
Thompson
and another v The Minister of Police and another
1971(1)
SA 71 at 371H to 372A shows that the arrest and detention of the
plaintiffs was pursuant to a duly issued warrant of arrest
. Armed
with a warrant the consideration of reasonable suspicion on the part
of the arresting officer did not arise. It however
arises in a case
such as the present where the arrest was effected without a warrant.
In this context it is significant that Farlam
J cited the extract
from pp375 B – 376A of Eksteen J’s judgment in
Thompson
.
61.
Sutherland
J in
Labuschagne
cited
extracts at pp374 to 375 from the judgment of Eksteen J in
Thompson.
However
it is evident from p14 of Sutherland J’s decision that my
brother expressly refrained from deciding whether
the due date of the
debt was the date of arrest or of release or some other date
[4]
.
In that case only a few days had interposed between arrest and a
court ordered further detention and, ordinarily, it would make
little
difference.
In
the present case more than a year elapsed between the two relevant
dates, which in the present case may raise an important policy
consideration on which I need not decide. A lengthy delay in not
bringing the suspect to trial but have him languish in prison
until
eventually released without being required to plead offends an
individual’s right to be brought before a criminal court
and
have his trial commence within a reasonable time. It may therefore
not be a factor upon which the state ought to be entitled
to rely.
62.
In my respectful view I am bound by the
ratio
of
Farlam JA in
Unilever
and
the long line of cases relied from
Lemue
v Zwartbooi
(1896) 13 SC 403
to
Els v Minister of Law and Order and
Others
1993 (1) SA 12
(C). Moreover the
SCA extensively adopted in
Unilever
the supportive reasoning
contained in the article by Doctor C F Amerasinghe in
Aspects
of the Actio Iniuriarum in Roman-Dutch Law
as to why a pending prosecution cannot be allowed to be
prejudged in the civil action. By contrast it appears that
this issue
was not raised before the SCA in
Lombo
.
and none of the cases relied upon in
Unilever
were mentioned by counsel if regard is
had to the authorities listed. Perhaps more importantly, even though
Lombo
was
not dealt with
Unilever
is
the more recent decision and it dealt expressly with this issue.
63.
In order to ensure that the matter proceeds
to trial I have considered it prudent to grant the condonation
sought in the alternative
if I am wrong.
In
this regard the respondent ought to have filed an answering affidavit
or presented some basis for opposing the merits of the
application.
The failure to do so demonstrates that there is no genuine basis for
opposition either on the ground of want of good
cause or of there
being unreasonable prejudice to the respondent. The reasons
have already been dealt with fully. In
this way there is little
scope for delaying the trial with an application for leave to appeal.
ORDER
64.
I accordingly made the following order
a.
It is declared that the notice of intention
to institute legal proceedings against the respondent in terms in
terms of section 3(a)
of the Institution of Legal Proceedings Against
Certain Organs of The State Act 40 of 2002 was timeously given and if
I am wrong
that condonation is given for the late delivery of such
notice in terms of the said Act;
b.
The effect of this order is that it
disposes of the first special dilatory plea;
c.
the respondent is to pay the applicant’s
costs of the application.
SPILG,
J
DATE
OF HEARING: 27 January 2015
DATE
OF ORDER: 28 January 2015
DATE OF REVISED JUDGMENT: 3 February
2015
LEGAL
REPRESENTATIVES:
FOR
APPLICANT: Att. B Lesomo
Seokane
Lesomo Inc
FOR
RESPONDENT: Adv B Dlamini
State
Attorney
[1]
In
Madinda
v Minister of Safety and Security
2008(4)
SA 312 (SCA) at para 14 where Heher JA dealt with the need for an
explanation as to why notice was not given timeously.
[2]
Section
3(4)(b)(ii) as explained in
Madinda
at
paras 10-14
[3]
Section
3(4)(b)(ii) supra
[4]
Sutherland
J said: “
For
the purposes of the adjudication of this matter, I have assumed
without deciding that the relevant dates constitute a period
any
time between 18 January and 21 January (
being
the date of arrest and the date when the court ordered the
plaintiff’s further detention)
and
it is plain from applying this particular decision that the cause of
action arose during that time.”