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[2020] ZAGPJHC 308
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Mothibeli v Minister of Police and Another (42399/2019) [2020] ZAGPJHC 308 (4 December 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 42399/2019
In
the matter between:
Zide
Mothibeli Plaintiff
and
Minister
of
Police First
Defendant
National
Director of Public
Prosecutions Second
Defendant
JUDGMENT
Vally
J
Introduction
[1]
The plaintiff sues the first respondent
(Minister) for unlawful arrest and the second respondent (NDPP) for
unlawful and malicious
prosecution.
Common
cause facts
[2]
The following facts are common cause: the
plaintiff was arrested on 30 September 2018 for allegedly raping a
minor. He was incarcerated.
He alleges that he was assaulted on the
same day. On 1 October 2018 he appeared in court where he applied to
be released on bail.
His application was unsuccessful. He remained in
custody until 23 October 2018 when he was released on bail. The
State, through
the offices of the NDPP, pursued the prosecution of
his case until 10 April 2019 when it withdrew the charges against him
due to
lack of evidence. He served a notice on the NDPP on 12
August 2019 and on 3 October 2019 on the Minister. The notice served
on the NDPP was within the six months period.
The
special pleas
[3]
On these facts the Minister and the NDPP have
raised two special pleas, only one of which really goes to the heart
of the matter.
This judgment addresses that one. It is that the
plaintiff has failed to comply with the peremptory requirements of s
3 of the
Institution of Legal Proceedings against Certain Organs of
State Act 40 of 2002 (the Act), and as a result his claim has
prescribed.
[4]
In response to both special pleas the plaintiff -
in replication - alleged that it was only on the 26 June 2019 that he
acquired
knowledge of the Minister and the NDPP as persons against
whom the claim should be brought. He had, therefore, complied with
the
necessary requirements set out in the Act, especially s 3
thereof, and thus his claim was not prescribed.
Disputed
fact
[5]
The replication gave rise to a dispute of fact,
which is captured in the following question: when did the applicant
become aware
of the identity of the Minister and the NDPP as the
parties he should be suing for the harm he alleges was done to him?
The parties
agreed that this court need only concern itself with this
disputed fact at this time, as its determination may result in the
claim
being dismissed without the court having to deal with the
merits of the plaintiff’s claim.
Oral
Evidence
[6]
The plaintiff was the only person who testified.
His evidence was that he is employed as a porter at the Charlotte
Maxette Hospital,
and he has no formal qualifications save that he
completed Grade 10 in school. He was at work sometime in June 2019
when he met
a lady who visited the hospital regularly to assist
patients with making claims against the Road Accident Fund. He
decided to solicit
her assistance. He informed her that he was
arrested for no apparent reason and was eventually released. She
asked him, ‘when
did your case end?’ He informed her that
it was on 16 April 2019. She asked him if he intended to sue ‘the
police’.
He replied by saying ‘yes’, but did not
know ‘how to go about it’. She then informed him that he
should
consult with an attorney and directed him to his present
attorney. He met with the attorney on 26 June 2019, who informed him
that
he should sue the Minister and the NDPP. He asked the attorney
to assist him in doing so. During cross-examination he admitted that
the lady who directed him to his attorney was a frequent visitor at
the hospital, and that he saw her on many occasions but only
approached her in June 2019. He could not recall the exact date he
approached her. He knew that he could sue the police because
he ‘knew
they did wrong’, but did not know how. He was only concerned to
see that justice was done.
Finding
based on this evidence
[7]
The evidence is unequivocal. The plaintiff was at
all times aware that he could pursue a civil claim for the alleged
harm done to
him by the police. What he did not know was how to
launch the proceedings. That knowledge he only acquired from the
attorney. As
for the question of who to sue, he left that in the
hands of the attorney.
Section
3 of the Act
[8]
Section 3 of the Act provides:
‘
(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 proceedings-
(i) without such notice; or
(ii) upon receipt of a notice which
does not comply with all the requirements set out in sub-section 2.
(2) A notice must-
(a) within six (6) months from date on
which the debt became due, be served on the organ of state in
accordance with section 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 subsubsection
(2)(a)-
(a) a debt may not be regarded as 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 2(2)(a) must
be regarded as having become due on a fixed date.’
Analysis
[9]
The arrest and alleged assault of the plaintiff
took place on 30 September 2018. His prosecution commenced on 1
October 2018.
His incarceration ended on 23 October 2018. Six months
from this date he should have served a notice on the Minister
indicating
his intention to institute legal proceedings. He served
his notice on 3 October 2019. This is well outside the six (6) months
period.
In his replication, which no doubt was drafted by his
attorney, he alleges that the only time he became aware of the
identity of
the Minister and the NDPP was when he consulted with this
attorney on 26 June 2019.
[10]
As for the NDPP he should have served a similar
notice at least six months from 10 April 2019 when his case was
withdrawn. He served
a notice on 12 August 2019 which is within the
six (6) months period. Hence, the special plea taken by the NDPP
bears no merit.
[11]
With regard
to the Minister, it was vigorously contended on his behalf that he
only became aware that the Minister was the correct
defendant on 26
June 2019 when he consulted his attorney. The problem with this
contention is that the plaintiff knew on 30 September
2018 that he
was unlawfully detained and that he intended to pursue a case against
the police. In other words, he had knowledge
of the identity of the
organ of state that should be sued
[1]
– although as a layperson he understood the identity of the
organ of state to be the police and not the Minister –
and he
had knowledge of the facts giving rise to the debt i.e. the unlawful
arrest which . He knew he could sue, what he did not
know ‘how
to go about it’. This problem would have been resolved had he
consulted an attorney after 23 October 2018
but before the six months
from 30 September 2018 had expired. He provides no explanation as to
why this was not done until he met
the lady in June 2019. Had he done
so he would have been informed that prescription of his claim
commenced running from 30 September
2018 and that it was necessary to
cite the Minster as the defendant, since the Minister is the person
who is liable for the actions
of the police.
[12]
That he did
not know it was the Minster who should be cited as the defendant is
of no assistance to his case. Knowledge of who the
defendant should
be is a legal issue not a factual one. Put differently, the citation
of the Minister as the appropriate defendant
is a legal consequence
of the unlawful conduct of the police. Factually it was the police
who arrested and assaulted him. Legally
it is the Minister who bears
responsibility for their unlawful conduct. He does not have to
acquire this knowledge before the period
for the prescription of his
claim commences.
[2]
[13]
In our case, prescription began to run from 30
September 2018 for that is when his cause of action commenced. His
claim prescribed
on 29 March 2019, unless he could claim that he was
unable to act until 23 October 2018 as he was detained until then, in
which
case his claim would have prescribed on 22 April 2019. He only
served his notice on the Minister on 3 October 2019, which is well
outside both dates. Failure to serve his notice timeously resulted in
his claim prescribing.
[14]
The
Minister was correct to raise the special plea. The plaintiff,
however, was not without a remedy once the plea was raised. He
could
have applied for condonation.
[3]
It is his decision not to take advantage of it. It is a decision that
was taken with legal advice. Accordingly, his claim against
the
Minister stands to be dismissed.
Costs
[15]
The plaintiff has successfully resisted the
special plea of the second defendant but not that of the first
defendant. If costs were
to follow the result, he would have to pay
the costs of the first defendant, and the second defendant would have
to pay his costs.
But since the matter was dealt with compositely it
would, in my view, only be fair and just that each party pay its own
costs.
Order
[16]
The following order is made:
1.
The special plea of the first defendant is
upheld.
2.
The plaintiff’s claim against the first
defendant is dismissed.
3.
The special plea of the second defendant is
dismissed.
4.
Each party is to pay its own costs.
__________________
Vally
J
Gauteng
High Court (Witwatersrand Local Division)
Date
of hearing:
28, 29 October 2020
Date
of judgment:
4 December
2020
For
the plaintiff:
D
Sondlani (Attorney)
For
the First Respondent: M Pompo
Instructed
by:
State Attorney
[1]
Owed him a ‘debt’ in terms of s 3 of the Act
[2]
Claasen v Bester
2012 (2) SA 404
(SCA) at [10] – [15]
[3]
Minister of Safety and
Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA) at
[10]
– [12]