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[2010] ZAGPPHC 143
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Pop v Minister of Safety and Security and Another (3101/2008) [2010] ZAGPPHC 143 (8 October 2010)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 3101/2008
DATE:08/10/10
ION
POP
.................................................................................................................
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
..........................................................
First
Defendant
MINISTER
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
...........
Second
Defendant
Civil
Trial
Coram
Sapire AJ
JUDGMENT
This
action in which the Plaintiff makes certain claims against the two
defendants was initiated by service of a Summons commencing
action.
Service of the Summons took place in February 2008.
The
Plaintiff is acting in person and he himself appears to be the
draftsman and author of his Particulars of Claim. After citing
the
parties the Plaintiff alleges that on the 4th of February 2002 and at
Pretoria the Defendant wrongfully and maliciously set
the law in
motion by laying a false charge of extortion and defeating the ends
of justice. It is not clear from the Particulars
of Claim which of
the Defendants so acted nor does it appear from the pleadings who the
individual was who acted on behalf of whichever
Defendant is alleged
to have acted wrongfully.
The
further allegations are tortuous and difficult to understand. The
Plaintiff further does allege that while laying the charge
and giving
the alleged disinformation the Defendant had no reasonable or
probable cause for so doing nor did he have any reason
to belief in
the truth of the information given.
The
Plaintiff goes on to allege that as an result of the Defendant's
conduct the Plaintiff was arrested and held in custody for
two days
until he was released on bail in the Magistrate's Court, Pretoria.
The Plaintiff proceeds to allege that on the 26th of
February 2002 he
was furnished with a document by the Investigating Officer. The
Plaintiff interpreted this document as a court
order or intimation of
a court order directing him to leave the country immediately. Acting
on such belief the Plaintiff followed
the purported order and went to
Europe and stayed in different countries only to return to South
Africa on the 10th of January
2004.This appears to be the basic fact
on which the second claim is founded. Suffice it to say that the
document appears to have
been misunderstood On the 27th of May 2004
the Senior Prosecutor declined to prosecute the Plaintiff and the
charges which constituted
the basis for his arrest, was subsequently
withdrawn.
Further
allegations in the Particulars of Claim deal with damages allegedly
suffered by the Plaintiff.
The
Plaintiff amended his Particulars of Claim but the amendment did not
substantially alter the facts relevant to this judgment.
What is
important is that the events which give rise to Plaintiffs claim were
completed in February 2002 or possibly in May 2002
when the charge
was withdrawn. One may assume that as far as the First Defendant is
concerned the claim is based on malicious prosecution
and wrongful
arrest while the claim against the Second Defendant if such a claim
exists arises from the document handed to the
Plaintiff by the
Investigating Officer. This also took place in 2002.
The
Plaintiff gave evidence which in substance accorded with what it said
in it's Amended Particulars of Claim.
The
Defendant has raised Special pleas based on the provisions of the
Prescription Act of 1943, in the first instance and secondly
on the
provisions of the Institution of Legal Proceedings against Certain
Organs of State, Act 40 of 2002. To these Special Pleas
no
replication has been made.
The
first special plea is that of prescription. The allegations in this
regard are that Plaintiffs causes of action in respect of
both claims
arose in 2002 and that the summons commencing action was not served
until 11th February 2008, by which time the three
year period of
prescription applicable to both claims had long expired. The claims
were in this way extinguished.
In
the second special plea it is alleged that the Defendants are, as
Governmental Departments in the central government, organs
of State
as defined in the second mentioned Act.
In
terms of Section 3 (i) of the Institution of Legal Proceedings
against Certain Organs of State, Act 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 it's intention to institute the legal
proceedings in question".
In
terms of Sub-Section (ii) "the notice must within 6 (six) months
from the date on which the debt became due be served on
the organ of
State in accordance with the provisions of Section 4(i) and must
briefly set out the facts giving rise to the debt
and such
particulars of such debt as are within the knowledge of the
creditor".
Section
3(iii) provides that for the "purposes of sub-section 2(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." The sub-section further provides
"that
a creditor must be regarded as having acquired such knowledge as soon
as he or she or it could have required it by exercising
reasonable
care unless the organ of State wilfully prevented him or her from
acquiring such knowledge. Prima facie any claims which
the plaintiff
has or may have against the defendants or either of them, arose on
the date on which the alleged wrong took place.
It is on that date
that the debts are deemed to have become due. In the absence of a
replication raising facts which deferred or
postponed the debts
becoming due the prima facie date for the arising of the debts is
uncontradicted.
Section
4 provides that "if an organ of State relies on a creditor's
failure to serve a Notice in terms of such section 2(a)
a creditor
may apply to a Court having jurisdiction for condonation for such
failure. The court may grant such relief 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.*
In
the present case the documents which the plaintiff relies on as the
required notices were in fact served in 2009 after the issue
of
Summons and thus completely out of time. No formal application for
condonation was made by the Plaintiff but in view of him
being
unrepresented I considered whether his oral mention of condonation
could amount to such an application.
The
only evidence before the court was that of the plaintiff himself.
Before even he was cross examined, on his own account it was
clear
that the special pleas were substantiated. At that stage I ordered
the question of the special pleas be argued so as to curtail
the
hearing. The law is clear, that as the claims on which he relies
arose in 2002 and had prescribed long before the action was
instituted the Defendants' Special Pleas, namely that the claims had
prescribed and that no notice as required by the provisions
of
Institution of Legal Proceedings against Certain Organs of State, Act
40 of 2002 had been given to the Defendants, the plaintiff
was non
suited.
The
action is dismissed with costs.
SAPIRE,
A J
PLAINTIFF:
…............................
Mr
Ion Pop
…
................................................
In
person 754 Besembiesie Street
…
................................................
MONTANA
PARK 0182
…
................................................
Fax
No: 086 - 610 7310
DEFENDANT'S
ATTORNEYS: P H T KLEYNHANS
…
...............................................
(with
right of appearance in the High Court
…
...............................................
in
accordance with Section 4(2) of Act 62 of 1995)
…
..............................................
THE
STATE ATTORNEY
…
..............................................
Bothongo
Heights
…
..............................................
8th
Floor
…
..............................................
167
Andries Street
…
...............................................
PRIVATE
BAG X91
…
...............................................
PRETORIA,0001
…
..............................................
Ref:
545/08/Z58
…
.............................................
Tel:
012-309 1500
…
.............................................
Enq:
Mr P H T Kleynhans
DEFENDANT'S
COUNSEL:
.
ADV. C NAUDE
…
...............................................
PRETORIA