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[2015] ZAGPJHC 42
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Nkwinika v Malapane and Another (19477/2008) [2015] ZAGPJHC 42 (27 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
19477/2008
DATE:
27 FEBRUARY 2015
In
the matter between:
LAWRENCE
NYIKO
NKWINIKA
...........................................................................................
Plaintiff
And
DECTECTIVE
MALAPANE
........................................................................................
First
Defendant
MINISTER
OF SAFETY AND
SECURITY
.............................................................
Second
Defendant
J U D G M E N T
MALI
AJ
[1]
In this matter the plaintiff has sought to sue defendants for
unlawful arrest, detention and assault. The first defendant has
since
passed on. The second defendant has raised a special plea.
[2]
The alleged unlawful arrest, detention and assault which occurred on
19 February 2007 at Midrand Police Station. The criminal
prosecution
against the plaintiff was withdrawn by the Magistrate Court on 15
October 2007. The plaintiff instituted the proceedings
on 20 February
2008.
[3]
Defendant contends that the plaintiff has not complied with the
provisions of Section 3(1)(a) and Section 3(2)(a) of Act 40
of 2002
(“the Act”). Section 3 of the Act provides that within
six months from the date on which the debt became due
a service on an
organ of state must take place in a prescribed manner.
[4]
The crisp issue to be decided is whether 19 February 2007 or 15
October 2007 is the applicable date to calculate the commencement
of
the six months period as provided by the Act.
[5]
In
Thompson
& Another v Minster of Police & Another
[1]
it was held:
“
in
the case of wrongful arrest, however, the intention may be said to be
direct dolus directus as it is done with the definite object
of
hurting the defendant in his person , dignity or reputation….
The arrest itself is a prima facie odious interference
with the
liberty of the citizen that animus injuriandi is thereby presumed in
our law, and no allegation of actual subjective animus
injuriandi is
necessary”.
[6]
In
R
v Moloi
[2]
the court held that the eventual conviction or acquittal of a person
is not itself proof that the arrest was lawful or unlawful.
[7]
In
Minister
of Safety and Security v Sekotho and Another
[3]
the court held:
“
that
while it is clearly established that the power to arrest may be
exercised only for the purposes of bringing the suspect to
justice,
the arrest is only one step in that process. Once an arrest has
been effected, a peace officer must bring that arrestee
before a
court as soon as reasonable possible and at least within 48 hours,
depending on court hours. Once that has been
done, the
authority to detain, that is inherent in the power to arrest is
exhausted. The authority to detain the suspect further
is then within
the discretion of the court.”
[8]
In
Marcel
Labuschagne v Minister of Safety and Security
[4]
,
the court found that the “trigger” date was the date of
the arrest and not the date of the withdrawal of the matter
against
the plaintiff. This matter has similarity of certain facts in the
present case.
[9]
It was argued on behalf of the plaintiff that he had to rely on the
entire set of facts inclusive of the docket and the outcomes
of the
proceedings of the criminal matter against the plaintiff, thereby
submitting that the cause of action arose on 15 October
2007. I was
referred to
Truter
v Deysel
[5]
,
a
case which dealt with the issue of prescription, in
particular to the following:
“
the
creditor acquires a complete cause of action for the recovery of the
debt when the
entire set of facts
which the creditor must prove in order to succeed
with …[the] … claim against the debtor is in place”.
[10]
Even though in
Truter
above the principle of access to entire
facts was emphasised the court also enunciated the principle of
separation of facts from
evidence. At page 168 it was held that for
purposes of prescription cause of action meant every fact which it
was necessary for
the plaintiff to prove in order to succeed in his
claim. It did not comprise every piece of evidence which is necessary
to prove
those facts.
[11]
In
Truter
the Supreme Court of Appeal over ruling the
decision of the court
a quo
held that 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. As a result the special plea raised by the
defendants was upheld
on the basis that all the facts and information
in respect of the operation performed on the plaintiff by the
defendants in 1993
were known or readily accessible to him and his
legal representative as early as 1994 or 1995 and not in 2000.
[12]
The plaintiff’s counsel struggled to explain which facts were
missing and or were not accessible to the plaintiff that
would have
hindered him to issue the notice as at 19 February 2007. The counsel
could not advance any substantive argument supporting
the submission
that the cause of action arose on 15 October 2007. The law as
pronounced above is precise in cases of arrest and
detention; that
sufficient facts in support of the cause of action are established
upon the occurrence of the same.
[13]
It was argued on behalf of the defendant that the cause of action
arose on 19 February 2007 and that the cause of action means
every
material fact which is necessary to be proved to entitle the
plaintiff to succeed in his claim. Cause of action for purposes
of
unlawful arrest and detention consists of wrongful deprivation of a
person’s liberty
[6]
.
In
casu
the plaintiff’s cause of action is his alleged unlawful arrest,
detention and assault by the defendants which occurred on
19 February
2007.
[14]
I therefore find that on 19 February 2007 the plaintiff had
sufficient facts which were readily available before him to institute
legal proceedings. Therefore the cause of action arose on 19 February
2007 and as a result the notice as contemplated in section
3 of the
Act would have been issued within six months from then.
[15]
With regard to costs the plaintiff’s counsel submitted that in
the event that the finding is in favour of the defendants
that each
party pay its own costs. His argument is on the basis that the
defendant is the state organ and that the plaintiff is
exercising his
constitutional right against the state.
[16]
It is important to note that the defendant’s counsel repeatedly
invited the plaintiff’s counsel to file application
for
condonation in respect of late filing of the notice. He even
committed that the application will not be opposed. The defendant’s
counsel rejected the offer forthright. I find no reason to
deviate from the general rule that costs follow the event.
[17]
Having regard to the above the Special plea is upheld and the
plaintiff’s claim is dismissed.
16.1. The plaintiff
is ordered to pay costs at Attorney and Client scale.
MALI AJ
ACTING JUDGE OF
THE HIGH COURT OFSOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Plaintiff: Adv S. Mathabathe
Instructed
by:
Denga Incorporated
Counsel
for the Defendant: Adv K. Lengane
Date
of Hearing: 24 February 2015
Date
of Judgment: 27 February 2015
[1]
1971
(1) page 374 G
[2]
1952(3)
SA p 659 at page 662
[3]
2011
(1) SACR 315
(A) at 42
[4]
18769/2009
SGHC unreported
[5]
[2006]
ZASCA 16,
[6]
Sikhunana
v Minister of Safety and Security (669/04) [2013] ZAECPEHC