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[2023] ZAECBHC 32
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Minister of Police v Dike - Application for Leave to Appeal (404/2022) [2023] ZAECBHC 32 (9 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, BHISHO]
CASE
NO.: 404/2022
In
the matter between: -
MINISTER
OF POLICE
APPLICANT
and
NOMBONISO
LILIAN DIKE
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
This is an application for leave to appeal, to the Full Court of this
Division, against the judgment
of this court delivered on 18 July
2023. The National Director of Public Prosecutions who was
cited as the second defendant
in the action is not party to this
application. There are two grounds upon which the application
is premised. They are that,
the court misdirected itself in not
finding that the claim had prescribed and in granting condonation;
the judgment of the court
is in conflict with the
Mtokonya and
Zamani
judgments and that constitutes a compelling reason to
grant leave.
Applicant’s
submissions
[2]
Ms Da Silva SC with Ms Sangoni appeared for the applicant and Ms
Magadlela for the respondent.
At the commencement of the hearing the
applicant sought an amendment to its notice of application for leave
to appeal in the following
terms:
“
2.2
The common cause facts were that the respondent:
2.2.1
was searched, assaulted, arrested and detained by members of the
South African Police Service on 16
May 2019;
2.2.2
was detained by or at the instance of the members of the service
until 27 May 2019;
2.2.3
the debt for:
2.2.3.1
unlawful assault and search became due on 16
May 2019, this being the
date on which the allege assault and search took place; and
2.2.3.2
unlawful arrest and detention became due on
27 May 2019, this being
the date on which the respondent was released from detention.
2.2.4
The Summons claiming damages for unlawful search, assault, arrest and
detention was issued on 15 July
2022.
2.2.5
The Summons was served on 28 July 2022 more than three years after
the respondent was allegedly assaulted,
searched and released from
detention.
2.3
The identity of the debtor was manifest – the Minister of
Police.
2.4
The facts from which the debtor rose were the assault, search, arrest
and detention of the
respondent.
2.5
Neither possession of the police docket nor receipt of legal advice
affected the respondent’s
obligation to institute a claim
within the three years.
2.6
The decision of the Constitutional Court in Mtokonya v Minister of
Police and Minister of
Police v Abongile Zamani could not be
distinguished, was binding and fell to be followed.
2.7
The respondent’s claim for search, assault, arrest and
detention had prescribed.”
[3]
It was argued on behalf of the applicant that the court needed to
satisfy itself on three issues
prior to granting condonation, namely,
that the claim itself had not prescribed, that there was good cause
shown for failure to
give notice on time, that the organ of state was
not unreasonably prejudiced. On the last point of prejudice Ms Da
Silva conceded
that there was no evidence that there was any
prejudice on the part of the applicant. It was submitted that
on the respondent’s
version the claim had prescribed when
summons was issued and the court misdirected itself in granting
condonation. Ms Da
Silva submitted that the respondent alleged
that she did not know that she could claim for damages for unlawful
search, arrest,
assault, detention against the respondent. In this
regard, she submitted that, applicant accepts without making a
concession that
before the respondent spoke to her lawyer she had no
knowledge that she could claim. She further submitted that even
if there
was no opposition, on the facts set out by the respondent
and based on paragraphs 3 to 6 of the
Mtokonya
[1]
judgment,
the claim had prescribed. She argued that the judgment of
this court is in conflict with both the
Mtokonya
and the
Zamani
[2]
judgments and , on that basis alone, leave should be granted. She
submitted that the guilt or otherwise of the respondent
had no
bearing on the claims for arrest and detention.
Respondent’s
submissions
[4]
Ms Magadlela, on the other hand, submitted that the claim against the
applicant was brought within
three years. She submitted that the
unlawful arrest, detention, subsequent prosecution and acquittal is
to be treated as one continuous
transaction. In this regard, she
relied on,
inter
alia
,
Mothobi
Albert
Tlake v Minister of Police and Another
[3]
,
and
Thompson
& Another v Minister of Police
[4]
.
She
submitted that based on the lack of knowledge of the respondent,
together with the delays caused by the police in furnishing
the
information, the claim had not prescribed by the time the summons was
issued. She further submitted that the first notice
was sent to
the applicant on 26 April 2022 and the second one on 26 May 2022. She
further submitted that there were no prospects
of success on appeal.
She submitted that the application should be dismissed with costs on
an attorney and client scale.
Discussion
[5]
The test for granting leave to appeal is set out in section 17 (1)
(a)(i)and(ii) of the Superior Courts
Act 10 of 2013 (the Act), that
leave to appeal may only be granted where the judge concerned is of
the view that the appeal would
have a reasonable prospect of success
, or where there is some other compelling reason , such as
conflicting judgments in the matter
under consideration.
[6]
First, it must be stated that when dealing with the application for
condonation the court had
regard to the affidavits filed by both
parties. The answering affidavit did not contain any of the facts
that were introduced in
the amended application for leave to appeal,
as contained in paragraph 2 above. Those facts do not appear in
the applicant’s
special plea of prescription. They have
been introduced by the applicant for the first time in the
application for leave
to appeal. On this basis, those new facts
cannot be taken into account for the purpose of this application, as
this court is now
functus
officio.
In
Firestone South Africa (Pty) Ltd v Genticuro AG
[5]
,
Trollip JA, stated:
“
The general
principle, now well established in our law, is that, once a court has
duly pronounced a final judgment or order, it
has itself no authority
to correct, alter or supplement it. The reason is that it
thereupon becomes functus officio: its
jurisdiction in the case
having been fully and finally exercised, its authority over the
subject- matter has ceased.”
[7]
The
supplementation of an application for leave to appeal with the facts
that were non- existent in the answering affidavit is a
clear
recognition on the part
of
the applicant that a mere conclusion that a claim has prescribed is
not sufficient
.
[6]
There must be alleged facts to support that conclusion, which it
failed to do prior to adjudication of the matter
[7]
.
That too, cannot be done at the application for leave to appeal
stage.
[8]
Second, the applicant referred to the facts quoted in paragraph 2, as
“common
cause facts
”. That reference is, with
respect, not correct, for two reasons: First, they cannot be common
cause if they were never placed
before court prior to adjudication of
the matter. Second, the applicant denied all the material facts
alleged by the respondent
which related to, inter
alia
, the
unlawful search, assault, arrest, detention, prosecution and
discharge.
[9]
The acceptance by the applicant that the
respondent had no knowledge that she could claim prior
to her
consulting her attorneys goes against his submission that
prescription started to run from the date of arrest. The respondent
had alleged that she informed her late husband’s attorneys on
11 March 2021 of what happened to her and summons was served
on the
applicant on 28 July 2022. The submission that the action was
instituted after three years, goes against this accepted fact.
It
also goes against what the Constitutional Court found in
Mtokonya
at paragraph 181 where it placed the onus on the applicant to
establish his defence of prescription. The aforementioned
acceptance
by the applicant is consistent with the findings of this
court.
[10]
Courts are obliged when interpreting any legislation to promote the
spirit, the purpose and the objects of
the Bill of Rights. The
Prescription Act is no exception. In
Macleod
v Kweyiya
[8]
it was stated that:
“
[13]
It is the negligent, and not an innocent inaction that s 12(3) of the
Prescription Act seeks to prevent
and courts must consider what is
reasonable with reference to the particular circumstances in which
the plaintiff found himself
or herself. In MEC for Education,
KwaZulu-Natal v Shange
2012 (5) SA 313
(SCA) para 11 this court had
to consider whether a 15 year old learner who had been hit with a
belt on the side of his eye by his
teacher acted reasonably in
waiting more than five years to institute action against the
teacher’s employer. As in the present
matter, the plaintiff
became aware of the possibility of a claim by chance. He had
initially accepted the teacher’s explanation
that it was an
accident. A family friend noticed that he was wearing an eye patch
and suggested that he should approach the Public
Protector. An
advocate in that office advised him of the possibility of a claim
against the teacher. Snyders JA held that the delay
was innocent, not
negligent. She stated:
‘
He
was a rural learner of whom it could not be expected to reasonably
have had the knowledge that not only the teacher was his debtor,
but
more importantly, that the appellant was a joint debtor. Only when he
was informed of this fact did he know the identity of
the appellant
as his debtor for the purposes of the provisions of s 12(3) of the
Prescription Act’ ”.
[11]
In
Minister
of Police v Zamani
[9]
,
the court did not depart from the established principles when it
determined the issue of prescription. This court was not determining
prescription but was dealing with it as a factor to be considered in
dealing with condonation. There was accordingly no reason
to
distinguish it.
[12]
I had referred in the main judgment to the decision in
Gericke
v Sack
[10]
the
Appellate Division stated:
“
It follows that
if the debtor is to succeed in proving the date on which prescription
begins to run
he must allege and prove that the creditor
had the requisite knowledge on that date.” (my emphasis).
As aforementioned no such allegations were made in the
answering affidavit.
[13]
Ms Da Silva conceded that the claim against the second defendant (the
National Director of Public Prosecutions)
for malicious prosecution
had not prescribed. She did not make any submissions in
relation to the long delay caused by the
applicant in furnishing
information. Again, the applicant did not deal with the allegations
of delay attributed to him in the answering
affidavit as reflected in
the judgment. As found in the judgment, the respondent’s
material allegations were met with a bare
denial. The court
accepted the respondent’s uncontroverted factual version as
correct for the purpose of determining
whether or not the applicant
was entitled to condonation sought. It found that she was. The
ground based on conflicting judgments
has no merit because the
applicant elected not to advance facts in resisting the condonation
application.
[14]
For all the reasons advanced above, and the circumstances of this
case, the applicant has failed to show that this
court in granting
condonation for the late delivery of the statutory notice,
misdirected itself.
[15]
In the result, I am accordingly of the opinion there are no
reasonable prospects of success and there is
no other compelling
reason to grant leave to appeal. It follows that the applicant has
failed to meet the threshold set out in
section 17 of the Act. The
application for leave to appeal must accordingly fail. The
complaint about the cost order is unfounded
because in as much as the
respondent sought condonation, the unexplained conduct of the
applicant of delaying to furnish information
even though there was a
court order, justified such an order.
[16]
On the issue of costs in this application, there is no basis for a
punitive cost order contended for by the
respondent. The
respondent has succeeded in resisting this application and costs
should follow the result.
ORDER
[17]
I accordingly make the following Order:
1.
Leave to appeal is refused with costs.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on
22
September 2023
Judgment
Delivered on
09
October 2023
APPEARANCES:
For
the APPLICANTS
ADV
DA SILVA SC with ADV SANGONI
Instructed
by
THE
STATE ATTORNEY
OLD
EMBASSY BUILDING
17
FLEET STREET
EAST
LONDON
REF:
677/22-P7 (MR ISAACS)
TEL:
043 706 5100
FAX:
043 722 0926
c/o:
SHARED LEGAL SERVICES
OFFICE
OF THE PREMIER
32
ALEXANDRA ROAD
KING
WILLIAMS TOWN
For
the RESPONDENT:
ADV
L. MAGADLELA
Instructed
by: SIPUNZI ATTORNEYS
89
BEACONHURST DRIVE
OFFICE
NO.9
BEACON
PARK, BEACON BAY
EAST
LONDON
TEL:
043 748 1828
FAX:
043 748 2347
REF:
DIK/013/21/Sipunzi
EMAIL:
khakas786@gmail.co.za
c/o:
POTELWA & CO. ATTORNEYS
17
ARTHUR STREET
QONCE
[1]
Mtokonya
v Minister of Police
2018
(5) SA 22
(CC).
[2]
Abongile
Zamani v Minister of Police
(12/2019)
[2021] ZAECBHC (12 February 2021).
[3]
Mothobi
Albert Tlake v Minister of Police and Another
3777/2014FASHC
20 October 2017.
[4]
Thompson
& Another v Minister of Police
1971
(1) SA 371 (E).
[5]
1977
(4) SA 298
(A) at 306 F-G.
[6]
Macleod
decision para [10] where the Supreme Court of Appeal stated: “
[10]
This court has repeatedly stated that a defendant bears the full
evidentiary burden to prove a plea of prescription, including
the
date on which a plaintiff obtained actual or constructive knowledge
of the debt. The burden shifts to the plaintiff only
if the
defendant has established a prima facie case.”
[7]
See para 24 of the judgment.
[8]
2013
(6) SA 1
(SCA) at paras 10 and 13.
[9]
[2021]
ZAECBHC 41 at para 8.
[10]
[1978] (1) SA 821 (A) at 827 – 828.