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[2021] ZAECPEHC 56
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Mehlwana v Minister of Police and Others (414/2020) [2021] ZAECPEHC 56 (9 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 414/2020
In
the matter between:
PHAKAMANI
MEHLWANA
Applicant
and
MINISTER OF
POLICE
1
ST
Respondent
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
2
ND
Respondent
MINISTER OF JUSTICE
AND CORRECTIONAL SERVICES
3
RD
Respondent
JUDGMENT
GQAMANA
J:
[1] “
The
right of access to courts is an aspect of the rule of law. And the
rule of law is one of the foundational values on which our
constitutional democracy has been established
.”
[1]
In the instant matter the applicant seeks to avoid the consequences
of the time-bar period set out in section 3 (2) (a) of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 (“the Act”), by asking for a condonation
from
this court under the dispensation provisions of sub-section 4 (a).
[2] The
facts giving rise to this application are as follows. The applicant
alleges that he was wrongfully arrested
on 29 July 2014 at or near
Kruisman Street, Zwide, Gqeberha without a warrant by members of the
South African Police Service (SAPS),
who were acting within the
course and scope of their employment and service of the Minister of
Police, the first respondent. He
further alleges that in the course
of such arrest, the police assaulted him. Thereafter, he was
transported to Kwa-Zakhele police
station for detention until his
first appearance at court on 31 July 2014. On this date, the
prosecutor and the investigating officer
opposed bail. Accordingly,
he was detained and remanded in custody at St Albans Prison until 7
August 2014, for a formal bail hearing.
On 7 August 2014, he appeared
in court for bail hearing; however, the presiding Magistrate refused
him bail. Due to the nature
of the charges against him and the fact
that he had previous convictions for offences listed in Schedule 1,
the onus was upon him
to satisfy the bail court that it was in the
interest of justice that he be released on bail as envisaged in
section 60(11) (b)
of the Criminal Procedure Act 51 of 1977 (“the
CPA”). He alleges further that, on 18 January 2015, during his
detention
and incarceration at St Albans Prison, he was stabbed by a
gang member twice on his neck and left rib, during a prison gang
fight.
As a result thereof he sustained stab wounds on the neck and
left rib and was hospitalised for one month two weeks. His criminal
trial commenced on 8 June 2017. On 5 December 2018, he was released
from detention after having secured bail. His criminal trial
was
finalised in his favour on 10 April 2019, wherein he was acquitted.
Throughout his criminal case he was legally represented
by an
attorney.
[3] Based
on the aforesaid facts, he issued summons on 14 February 2020, for
wrongful arrest and detention, assault,
malicious prosecution and
breach of duty of care against the respondents. In response to his
summons and particulars of claim,
the respondents raised two special
pleas, namely, prescription and non-compliance with the provisions of
section 3 (2) (a) of the
Act. For purposes herein, the special plea
for non-compliance with section 3 is directed only to his claims for
the alleged assault,
wrongful arrest and detention and breach of duty
of care. The claim for malicious prosecution is excluded from the
special plea
raised by the first and second respondents. It is
generally accepted that for malicious prosecution claim, the cause of
action
arises only after a successful termination of the criminal
proceedings in the plaintiff’s favour, which
in casu
was
on 10 April 2019.
[4] The
applicant conceded up-front during hearing of this application that,
his claim against the first respondent
for the assault, which
occurred on 29 July 2014, at the time of his arrest, has prescribed
and accordingly would not pursue it.
Therefore, only his claims for
wrongful arrest and initial detention, further detention for the
period 31 July 2014 until 5 December
2018 and the breach of duty of
care are relevant in this application.
[5] The
notices envisaged in section 3(1)(a) of the Act were given on the
respondents in September 2019. Thereafter
summons was issued on 14
February 2020. As foreshadowed in paragraph 3 above, the summons was
met with the special plea of non-compliance
with the provisions of
section 3(2)(a) of the Act. Faced with such hurdle the applicant on
or about January 2021, launched the
present application, which is
opposed by all the respondents.
[6] Section
3 of the Act reads as follows:
“
(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 subsection
(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 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 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
(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 creditor’s
failure to serve a notice in terms of subsection
(2)(a), the creditor
may apply to a court having jurisdiction for such failure.”
[7] Where
an applicant, as here, failed to give such notice timeously, such
failure may be condoned by a court
in terms of subsection (4)(b), 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 would not unreasonably prejudiced by such failure.
[8] The
requirements set out in subsection 4(b) are conjunctive and must be
established by an applicant in the
condonation application.
[2]
In the instant matter, the respondents in opposition of the relief
the applicant seeks, contend that none of the aforesaid requirements
have been met.
[9] The
approach to condonation application of this nature is well
articulated in
Madinda
v Minister of Safety and Security
.
[3]
For the court to be satisfied that all the aforesaid requirements
have been established involves not proof on a balance of
probabilities
but ‘
the
overall impression made on a court which brings fair mind to the
facts set up by the parties
.’
[4]
[10]
Mr
Mnyani
,
applicant’s counsel argued with great enthusiasm that, the
applicant’s claims for unlawful arrest and detention have
not
been extinguished by prescription because, the applicant only
acquired knowledge of the facts which gave rise to such claims
in
June 2017, when he had access to police docket. The argument was
advanced that, he had no knowledge until he had access to the
docket,
whether the police had reasonable suspicion that he had committed an
offence and the lack of justification of his arrest
and detention. In
support of his submissions, Mr
Mnyani
placed reliance in two reported judgments, namely,
Makhwebo
v Minister of Safety and Security
[5]
and
Minister
of Police v Zamani.
[6]
In the main judgment in
Zamani
,
the court dismissed the defendant’s special plea of
prescription and found that the defendant could not place reliance on
section 12(3) of the Prescription Act, because that was not the case
pleaded by the defendant nor was it one which the plaintiff
could be
called upon to answer at the trial stage.
[11] In
its judgment for leave to appeal the court said the following:
“
[12] The
conclusion reached by the court in the impugned judgment was
influenced principally by
Makhwelo
, which make access to a
police docket pivotal to the identification of the debtor, the
appropriate cause of action, and the opportune
moment for launching
the action before it is hit by prescription.
[13] It
has, however, greatly exercised my mind whether, upon a reading
thereof, the subsequent pronouncement in
Mtokonya
may not be
said to have watered down the principle enunciated in
Makhwelo
.
In the first place,
Mtokonya
was decided on the basis that the
court had to determine a legal (as against a factual) issue which did
not prevent prescription
from running and that the applicant therein
“ …
did have the knowledge of the identity of the
debtor and the material facts giving rise to the debt at the time he
was released
from detention … but … did not know that
he had a legal remedy against the defendant
.” In the
instant matter the respondent’s uncontroverted testimony was
that he had no knowledge of the identity of the
debtor, certainly not
without having had sight of the police docket. It is a matter of
concern that the line between what is purely
factual, as against
legal, within the meaning of section (12)(3), is too narrow and may
at times result in a conflation of these
terms.
[14] The
problem that confronts us is exacerbated if one has regard to the
following remarks by Froneman J (writing
for the majority) in
Kruger
:
“
It is not clear
to me whether the first judgment purports to lay down a legal rule
that in all debts arising from delictual claim
based on malicious
prosecution, prescription starts to run only when a claimant has
knowledge of the contents of the police docket.
That would be a
disquieting departure from the clear conceptual logic of the
precedents in this area. For the reason stated above–that
the
evidence to prove lack of reasonable and probable cause and intent to
injure will vary from case to case- a legal rule to that
effect
cannot and should not be posited
.”
[12] The
Zamani
main
judgment has since been set aside on appeal.
[7]
The full bench stated the following:
“
[26] I agree with
the defendant’s submission that
Makhwelo
was wrongly
decided. As stated earlier the burden of proving that an arrest and
detention are justified, rests on the person who
effected the arrest.
The judgment in
Makhwelo
further conflates the strength, or
the prospects of success of a claim, with the knowledge required for
the institution of a claim
in order to interrupt the running of
prescription. As stated in
Gore
, prescription is not postponed
until such time as the creditor is in a position to comfortably prove
his or her case. It is also
not necessary for the creditor to have
certainty “
in regard to the law and the defendant’s
rights and obligations that might be applicable to such debt
.”
[27] The
decision in
Makhwelo
is also in conflict with the judgment of
the Constitutional Court in
Mtokonya
. In
Mtokonya
the
Court dealt with a case of unlawful arrest and detention. The case
was “
about whether section 12(3) of the Prescription Act
requires a creditor to have knowledge that the conduct of the debtor
giving
rise to the debt is wrongful and actionable before
prescription may start running against the creditor”. The Court
concluded
that section 12(3) does not require knowledge of legal
conclusions or the availability in law of a remedy
.”
“
Whether the police’s conduct against the applicant
was wrongful and actionable is not a matter capable of proof. In my
view,
therefore, what the applicant said he did not know about the
conduct of the police, namely whether their conduct against him was
wrongful and actionable, was not a fact and, therefore, falls outside
of s 12(3). It is rather a conclusion of law,” and
knowledge
that the conduct of the debtor is wrongful and actionable is
knowledge of a legal conclusion and is not knowledge of
a fact.
Therefore, such knowledge falls outside the phrase ‘knowledge …
of the facts from which the debt arise’
in s 12(3). The facts
from which a debt arises are facts of the incident or transaction in
question which, if proved, would mean
that in law the debtor is
liable to the creditor
.” The finding in
Gore
that
the running of prescription is not delayed until a creditor is aware
of the full extent of his legal rights, is consistent
with the “
well
known principle in our law that ignorance of the law is no excuse. A
person cannot be heard to say that he did not know his
rights
.”
[13] I
agree fully with the Full Bench’s criticism of
Makhwelo
’s
judgment. It was not only wrongly decided, but was patently wrong.
Over decades, it has been our law that the plaintiff
bears no onus to
prove wrongfulness of the arrest and detention. In
Thompson
v Minister of Police
,
[8]
it was held that:
“
In the claim based
on wrongful arrest however the position is different. There the
delict is committed by the illegal arrest of
the plaintiff without
due process of the law. Improper motive or want of reasonable and
probable cause required for malicious arrest
have no legal relevance
to this cause of action. It is also irrelevant whether any
prosecution ensues subsequent to the arrest;
and, even if it does,
what the outcome of the prosecutors is.
The injury lies in the
arrest without legal justification, and the cause of action arises as
soon as that illegal arrest has been
made
”.
[14] Also
in
Links
v Department of Health
,
[9]
the Constitutional Court said that, in a delictual cliam fault and
unlawfulness do not constitute factual ingredients of the cause
of
action, but they constitute legal conclusion which are drawn from the
facts.
[15] It
follows therefore that a plaintiff’s right of liberty is
infringed as soon as he or she is deprived
of such freedom without
justification and the harm continues until he or she is released from
detention and his or her freedom
is restored. Thus in a case of
wrongful arrest and detention, the debt arises from the moment of his
arrest and each day in detention
constitutes a new debt as long as
the wrongful conduct endures.
[10]
An arrest or detention is
prima
facie
wrongful and accordingly it is not necessary for the plaintiff to
either allege or prove wrongfulness. The defendant bears the
onus to
prove the lawfulness of the arrest and detention.
[11]
[16] It
is trite that in terms of s 12(1) of the Prescription Act,
prescription begins to run the moment the debt
is due. And a debt is
due when a creditor acquires knowledge of the identity of the debt
and the facts which gave rise to the debt
or when everything has
happened which would necessitate him or her to institute his or her
action and to pursue the claim.
[12]
In the context of this case and in line with the authorities referred
to above, the applicant’s claims for arrest and detention
for
the period from 29 July 2014 until 17 June 2017 have prescribed.
Therefore, the applicant’s application for condonation
fails on
the first requirement set out in section 4(b)(i) of the Act.
[17] In
so far as the applicant’s claim for further detention, for the
period, which has not been extinguished
by prescription, he still
faces other hurdles because, he has to show “
good cause
”
for his failure. On his own version, he was legally represented
throughout his criminal trial. He was released from detention
on 5
December 2018. The relevant notices were only given in September
2019. There is no allegation that he was prevented by the
first and
second respondents from giving such notice. To the contrary, on his
version he knew as early as in June 2017, when he
was placed in
possession of the police docket that his arrest and detention was
unlawful. Despite his knowledge of such facts,
he failed to give the
required notice.
[18] Throughout
the criminal proceedings, the applicant was legally represented. The
applicant contends that when
he was acquitted on 10 April 2019, he
approached his erstwhile attorney to institute a claim on his behalf
against the first and
second respondents.
[13]
However, his erstwhile attorney advised him that he had no mandate to
deal with civil matters and promised to link him up with
another
attorney on the agreed date. This undertaking was not honoured. By
pure luck, on an unspecified date, he met his present
attorney of
record and arrangements were made to call her for purposes of setting
up an appointment. Due to his limited financial
resources, he was
unable to call his attorney as agreed. It was only later in August
2019, that his mother gave him money for taxi
to visit his attorney
for consultation. Having consulted with his attorney, he was advised
of his claims against the respondents.
On or about 20 September 2019,
the respondents were served with the notices in terms of section 3 of
the Act.
[19] The
above explanation is for the period after his acquittal, but as I
have indicated above, each day of his
detention gave rise to a new
debt. He was released from detention in December 2018. No explanation
is given by him as to why he
could not secure legal services or give
the required notices as soon as he was released from detention. He
knew that his liberty
was infringed on each day he was kept in
detention. After his release, nothing prevented him from giving
instructions to an attorney
to institute proceedings on his behalf.
[20] Furthermore
in assessing whether “good cause”, exist the court must
consider also the prospects
of success in the proposed action. On the
facts pleaded, the applicant was charged for an offence listed in
Schedule 1 of the CPA.
He had previous convictions, namely,
housebreaking with intent to steal and theft, robbery, malicious
damage to property and three
convictions for theft.
[14]
Accordingly in terms of the provisions of section 60 (11)(b) of the
CPA, he had to be kept in detention and the onus was on him
to adduce
evidence to the satisfaction of the court that, it was in the
interests of justice that he be released on bail. The applicant
was
legally represented at the criminal proceedings and he applied for
bail, which was refused by the magistrate. The applicant’s
prospects of success for the unlawful detention claim are very
slender if they exist at all. Therefore, the applicant has failed
to
show that good cause exists for his failure.
[21] Insofar
the third requirement, the first and second respondents have set out
in detail the basis upon which
they contend that they would be
unreasonably prejudiced. The cause of action herein arose in July
2014. It has been a long time
since the incident occurred and due to
time lapse, the memory of witnesses would have faded. That would
severely prejudice the
first and second respondents’ case.
[22] With
regard to the claim against the third respondent, the applicant
alleges that the assault occurred on
18 January 2015. His contention
is that he was assaulted by gang members whilst he was incarcerated
at St Albans Medium B prison.
The applicant conceded that he had full
knowledge of the facts that gave rise to the assault claim on 18
January 2015. However,
his main contention was that in this regard is
that, he had no knowledge of the identity of the organ of state until
his attorney
of record advised him. As indicated above, the applicant
had access to legal representative to advise him shortly after his
arrest
and throughout his criminal case. There are no records of the
alleged assault. He is silent in his affidavit whether he had
informed
his legal representative about this alleged assault. There
is no allegation that he has ever reported the alleged assault to the
authorities at correctional services. In my view, for the similar
reasons as indicated above, the applicant’s claim, for
assault
against the third respondent has been extinguished by prescription.
Had the applicant exercised reasonable care, he would
have acquired
knowledge of the identity of the third respondent as the relevant
organ of state. The third respondent did not prevent
him from
acquiring such knowledge.
[23] In
so far as costs are concerned, there is no reason why the costs
should not follow the results.
[24] In
the circumstances the following order will be issued:
1. The
application for condonation is dismissed.
2. The
applicant is ordered to pay the respondents’ costs.
N
GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the applicant:
M
Mnyani
Instructed
by: Nongogo
Attorneys Inc.
Port
Elizabeth
Counsel
for the 1
st
and 2
nd
respondent:
G
Appels
Instructed
by: State
Attorney
Port
Elizabeth
Counsel
for the 3
rd
Respondent:
I
Dala
Instructed
by: State
Attorney
Port
Elizabeth
Date
heard: 2
September 2021
Date
judgment delivered: 9
November 2021
[1]
Zondi v
MEC for Traditional and Local Government Affairs
2005 (3) SA 589
(CC) (
Zondi
I
) at
para 82.
[2]
Minister
of Agriculture and Land Affairs v C J Rance (Pty) Ltd
[2010]
3 All SA 537
(SCA) para [11].
[3]
2008 (4) SA 312 (SCA).
[4]
Para [8] and also in
Maguga
v Minister of Police
[2018]
ZAECHC 78
(4 September 2018) para [22].
[5]
2017 (1) SA 274 (G).
[6]
2021 JDR 0214 (ECB). This was a judgment on the application for
leave to appeal. The main judgment is reported as
Zamani
v Minister of Police
(12/2019) [2020] ZAECBHC 23 (10 November 2020).
[7]
Minister
of Police v Zamani
CA 102021 [2021] ZAECGHC (12 October 2021).
[8]
1971 (1) SA 371
(E) at 375 E–G.
[9]
2016 (4) SA 414
(CC), para [31].
[10]
Lombo v
African National Congress
2002 (5) SA 668
(SCA) at para [26] and
Minister
of Police v Yekiso
2019 (2) SA 281
(WCC) at para [19].
[11]
Minister
of Law and Order v Hurley
1986 (3) SA 568
(A) at pp 587–589 and also
Lombo
(
supra
)
at para [32].
[12]
Truter
v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at para
[16]
.
[13]
Index pp 10-11 [34] and [35].
[14]
Index p 62 para 29.2.5.