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[2023] ZAFSHC 119
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Klue v Minister Of Justice And Correctional Services (1807/2021) [2023] ZAFSHC 119 (18 April 2023)
FLYNOTES:
PRESCRIPTION AND WHEN DEBT BECOMES DUE
CIVIL
PROCEDURE – Prescription – When debt becomes due –
Plaintiff’s attempts at appealing conviction
taking several
years – Succeeding at Supreme Court of Appeal – Claim
against the Minister of Justice –
Finding of Supreme Court
of Appeal did not establish new cause of action based on different
facts – Claim prescribed
–
Prescription Act 68 of 1969
– Institution of Legal Proceedings against Certain Organs of
State Act 40 of 2002.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1807/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DANIE
KLUE
Plaintiff
And
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Defendant
CORAM:
LOUBSER, J
HEARD
ON:
7 FEBRUARY 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED ON:
The judgment was handed down electronically by circulation to the
parties’ legal representatives
by email and released to SAFLII
on 18 APRIL 2023. The date and time for hand-down is deemed to be 18
APRIL 2023 at 12:00
[1]
This matter concerns two special pleas raised by the defendant in his
plea in response to a summons
issued by the plaintiff and delivered
on the offices of the state attorney on 26 April 2021. In the first
special plea it is contended
that the plaintiff failed to comply with
the provisions of the Institution of Legal Proceedings against
Certain Organs of State
Act
[1]
(“the Act”) in that the required notice was sent more
than six months after the debt or cause of action arose. In the
second special plea it is contended that the plaintiff's claim has
become prescribed in terms of the provisions of the
Prescription
Act
[2
]
in that the summons was served more than three years after the debt
became due, or after the cause of action arose.
[2]
The parties have agreed at a pre-trial conference
that the two special pleas would be argued first and separately
from
the merits and the quantum of the matter. At the hearing of the
special pleas no evidence was presented by either of the parties,
and
counsel representing the parties relied only on the facts and the
sequence of events as they unfolded on the pleadings and
other
documents before the court in making their submissions.
[3]
Before turning to the merits of the special pleas, it is necessary to
refer to the chronology of the
events in order to put the special
pleas in context. The following represents the relevant and common
cause chronology and facts
of the matter:
3.1.
On 26 November 2013 the plaintiff was convicted in the Bloemfontein
Regional Court on one charge of
sexual assault and two charges of
rape of a minor child. He was sentenced to 5 years imprisonment for
the sexual assault and to
life imprisonment on each of the rape
charges on 3 December 2013. The effective sentence was one of life
imprisonment.
3.2.
The plaintiff then made application for leave to appeal against his
convictions and sentences, which
application was dismissed as far as
the convictions are concerned by the trial magistrate on 27 January
2014. The trial magistrate,
however, granted leave to appeal against
the three sentences.
3.3.
On 9 December 2015 the Judge President of the Free State High Court
dismissed a petition by the plaintiff
for leave to appeal against his
conviction, apparently on the charge of sexual assault.
3.4.
The plaintiff then applied to the Supreme Court of Appeal for leave
to appeal against his convictions.
On 27 February 2017 he was granted
leave to appeal to the High Court against his conviction and sentence
on the sexual assault
charge. It was pointed out in the order that
the plaintiff had an automatic right of appeal in respect of the rape
charges by virtue
of the provisions of section 309(1) of the Criminal
Procedure Act.
[3]
3.5.
The appeal against the convictions and sentences on all three charges
was heard in the High Court by
Mbhele J and Chesiwe AJ, as they then
were, on 4 December 2017. On 9 March 2018 they delivered judgement
and dismissed the appeal.
3.6.
On 21 May 2018 the plaintiff approached the Supreme Court of Appeal
for special leave to appeal against
the judgement of Mbhele, J and
Chesiwe, AJ. This application for leave was heard by the SCA on 18
February 2020.
3.7.
On 21 April 2020 the SCA handed down a majority judgement (with two
Judges of Appeal dissenting) in
the application for leave. In the
judgement leave to appeal was granted and the appeal itself was
upheld. The plaintiff’s
convictions and sentences were
therefore set aside.
3.8.
The plaintiff’s first letter in terms of the Act was sent to
the address of the defendant in
Pretoria during the second half of
August 2020. It was pointed out in this letter that the evidence of
the single child witness
in the trial court was found to be
unsatisfactory in “material aspects”.
3.9.
This letter was followed by another letter to the defendant dated 22
September 2020, in which the plaintiff
alleged that the trial
magistrate had acted in breach of her duty of care towards the
plaintiff in that she had failed to carry
out her functions with the
necessary professional skill and care. The magistrate had acted
negligently and her conduct fell short
of what was expected from a
reasonable person in her position, it was alleged in this letter.
3.10. As
mentioned earlier, the plaintiff served summons on the offices of the
State attorney on 26 April 2021. In the
summons, the plaintiff's
claim was based on the conduct of the trial magistrate and the causes
of action already set out in the
letters of August and 22 September
2020 to the defendant.
3.11. In
December 2021 the plaintiff gave notice of his intention to amend his
particulars of claim, and eventually
the amended pages were served on
the state attorney on 17 December 2021. In the amended pages, the
plaintiff relied on a further
cause of action in the form of an
alleged breach of a duty of care by the two High Court judges who
heard the appeal. In these
pages, it was alleged that the judges
persisted with the wrongful actions of the trial magistrate by
dismissing the appeal of the
plaintiff on 9 March 2018. The alleged
wrongful action consisted in the finding of the trial magistrate that
the evidence of the
complainant was reliable. The plaintiff
claimed
damages of R7 270 000.00 plus interest in the amended pages.
[4]
At this point it needs to be mentioned that throughout all the
processes referred to above, it was primarily
the case of the
plaintiff that the trial magistrate, and later the two judges of the
High Court, had erred by accepting the version
of the complainant as
reliable and by concluding that she was a credible witness. This fact
is particularly evident from a reading
of the plaintiff's notice of
application for leave to appeal in the Regional Court, dated 24
January 2014, from his application
for leave to appeal in the Supreme
Court of Appeal in February 2017, from his application for special
leave to appeal against the
judgement of the two High Court judges in
May 2018 and from the two letters of demand in terms of the Act dated
August and September
2020.
[5]
In the summons as it presently stands, it is alleged that the
plaintiff's cause of action “arose
and/or was completed or has
fully accrued” on 21 April 2020 when the Supreme Court of
Appeal upheld the plaintiff's appeal.
In both the special pleas
raised by the defendant, it is contended that in as far as the
plaintiff relies on a breach of a duty
of care by the trial
magistrate, the cause of action arose and the debt became due on 3
December 2013, being the date on which
the plaintiff was sentenced by
the trial magistrate. Alternatively, it is contended that the cause
of action arose and the debt
became due on 27 January 2014 at the
latest, being the date on which the trial magistrate dismissed the
plaintiff’s application
for leave to appeal.
[6]
In as far as the plaintiff relies on any wrongful and/or negligent
conduct by the two High Court judges,
it is contended in the special
pleas that the cause of action arose on 9 March 2018 at the latest,
being the date on which they
dismissed the plaintiff’s appeal.
It is further contended that the amendment of the particulars of
claim to include the alleged
wrongful conduct of the judges, only
came into effect on 17 December 2021 when the amended pages were
served on the defendant’s
attorney. This happened more than
three years after the cause of action arose, and therefore the claim
has become prescribed, it
is alleged in the special pleas.
[7]
The relevant
provisions of the
Prescription Act are
the following:
In
terms of
section 11(a)
the
period of prescription of debts of the kind in question shall be
three years.
Section
12(1)
provides that prescription shall commence to run as soon
as the debt is due.
Section 12(3)
provides that a debt shall not
be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the
facts from which the debt arises, provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it
by exercising reasonable care.
Section
15(1)
provides that the running of prescription shall be
interrupted by the service on the debtor of any process whereby the
creditor
claims payment of the debt.
[8]
The
relevant provisions of the prior notice Act
[4]
are the following:
Section
3(1)(a) thereof provides that 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 intention to institute the legal proceedings
in
question. Section 3 (2) provides that a notice must, within six
months from the date on which the debt became due, be served
on the
organ of state, 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(3) has the same provisions as
section
12(3)
of the
Prescription Act, speaking
in broad terms.
Section
3(4)
(
a)
provides that, if an organ of state relies on a creditor’s
failure to serve a notice in terms of subsection (2)(a), the
creditor
may apply to a court having jurisdiction for condonation of such
failure
.
There
is no application for condonation in this respect before this court.
[9]
Both the above Acts make it clear that
prescription commence to run and that prior notice must be given
within six months from the date on which the debt became due. For the
purposes of deciding the special pleas raised, it needs to
be
established when “a debt becomes due”. When that is
established, it will become clear whether the debt in the present
matter became due only on 21 April 2020 as contended by the
plaintiff, or on any prior date as contended by the defendant.
[10]
Neither the
Prescription Act nor the
prior notice Act defines the
phrase “when a debt becomes due”. Therefore, the
authority probably most quoted when it
comes to determining when a
debt becomes due in respect of the running of prescription is the
unanimous decision of the Constitutional
Court in Links v Department
of Health
[5]
.
In that case, the plaintiff’s thumb was amputated in hospital,
and he was apparently not aware that the amputation was due
to the
negligence of the hospital staff. When he was later advised of the
negligence he instituted action, but prescription of
the claim was
raised as a defence.
[11]
Firstly, the Court referred with approval to the following passage in
the case of
Truter
vs
Deysel
:
[6]
“
debt
due means a debt, including a delictual debt, which is owing and
payable. A debt is due in this case 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 pursue his or her claim.”
The
Court also referred to another passage
[7]
in the Truter case where “cause of action” for the
purpose of prescription was defined as…” every fact
which would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgement 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.”
[12]
In addition, the Court also referred with approval
[8]
to the case of
Minister
of Finance and Others v Gore N.O.
[9]
where it was held that “...
time
begins to run against the creditor when it has the minimum facts that
are necessary to institute action”.
[10]
It was further stated in the Gore-case that the running of
prescription is not postponed until a creditor becomes aware of the
full extent of its legal rights, nor until the creditor has
evidence that would enable it to prove a case ‘comfortably’.
[11]
[13]
Applying these principles to the question in the present case, there
can be no doubt that the plaintiff had acquired
a complete cause of
action for the recovery of his debt, and that the entire set of facts
which he had to prove against the defendant,
were already in place
when he was sentenced by the trial magistrate and when the trial
magistrate dismissed his application for
leave to appeal. This
happened on 3 December 2013 and 27 January 2014 respectively. This is
so because he knew at the time, or
at least believed at the time,
that the trial magistrate had wrongly accepted the version of the
complainant as reliable and had
wrongly concluded that she was a
credible witness. In the years that followed, the plaintiff persisted
with this contention in
all the legal processes he embarked upon.
Even in his eventual summons he mainly relied on the same contention
as a basis for his
claim.
[14]
The finding of the Supreme Court of Appeal on 27 April 2020 did not
establish a new cause of action based on different
facts than those
that the plaintiff had relied on right from the beginning. It only
confirmed what the plaintiff had known or believed
through the years.
It is true that this finding constituted evidence that could have
enabled the plaintiff to prove his case more
comfortably, but as we
have seen, such fact could never postpone the running of prescription
in the circumstances. Incidentally,
the finding of the Supreme Court
of Appeal was not a pre-condition to the institution of the present
claim. It is only in cases
of malicious proceedings where a plaintiff
must allege and prove that the proceedings were terminated in his
favour.
[12]
[15] In the
premises, I find that the plaintiff’s cause of action did not
arise on 21 April 2020. In as far as
the plaintiff relies on a breach
of a duty of care by the trial magistrate, his cause of action arose
at the latest on 27 January
2014. In as far as he relies on a breach
of a duty of care by the two High Court judges, his cause of action
arose on 9 March 2018,
being the date on which they dismissed his
appeal. The plaintiff's claim has therefore become prescribed on 28
January 2017 as
far as the trial magistrate is concerned, and only on
17 December 2021 the plaintiff included the alleged conduct of the
High Court
judges in his amended particulars of claim when the
amended pages were served on the defendant’s attorneys.
[16]
The plaintiff's claim in relation to the conduct of the High Court
judges had already become prescribed on 10 March
2021, some nine
months before the claim in this respect was included in the
particulars of claim. It follows that the plaintiff's
claim has
already become prescribed both in relation to the conduct of the
trial magistrate and the High Court judges by the time
that the
summons was served on 26 April 2021 and by the time that the conduct
of the High Court judges became involved on 17 December
2021.
[17]
As far as the prior notices are concerned, they only referred to the
conduct of the trial magistrate and not to
the conduct of the High
Court judges.
In this respect, the notices did not comply with the
Act. In any event, the notices were sent after the expiry of six
months from
the date on which the debt arose.
[18]
The following orders are made:
1.
The special plea relating to non-compliance with the provisions of
Act 40 of 2002 is upheld.
2.
The special plea relating to prescription is upheld.
3.
The action instituted by the plaintiff against the defendant is
dismissed with costs.
P.
J. LOUBSER, J
For
the Plaintiffs:
Adv.
K. Pretorius
Instructed
by:
J.G.
Kriek and Cloete
J.G.
Kriek and Cloete
Bloemfontein
For
the Defendant:
Adv. G.J.M. Wright
Instructed
by:
Office
of the State Attorney
Bloemfontein
[1]
Act 40 of 2002
[2]
Act 68 of 1969
[3]
Act 51 of 1977
[4]
See footnote 1 above
[5]
2016 (4) SA 414 (CC)
[6]
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at par
[16]
[7]
Par [19] in the Truter case
[8]
At par [35]
[9]
2007 (1) SA 111 (SCA)
[10]
At par 17 of the Gore-case
[11]
Ibid
[12]
Els v Minister of Law and Order and Others
1993 (1) SA 12
(CPD)