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[2022] ZAFSHC 263
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Phala v Minister of Safety and Security and Another (6779/2007) [2022] ZAFSHC 263; [2023] 1 All SA 227 (FB) (12 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
6779/2007
Reportable
Yes
Of
Interest to other Judges No
Circulate
to Magistrates: No
In
the matter between:
MOLALE
PHALA
Plaintiff
and
MINISTER
OF SAFETY AND SECURITY
First
Defendant
SABATA
MATEASE MOHAPI
Second
Defendant
CORAM:
N.
SNELLENBURG, AJ
HEARD
ON:
19
MAY 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 12 October 2022 at
16H00.
INTRODUCTION
[1]
Mr Molale Phala, a male educator [plaintiff] issued summons in this
court against
the Minister of Safety and Security [first defendant]
and Captain Sabata Matease Mohapi [second defendant] claiming damages
for
unlawful arrest and detention arising from his arrest and
subsequent nine-day imprisonment as well as for malicious
prosecution.
The summons was issued on 14 December 2007 and served on
the defendants on 4 January 2008.
THE
PLEADINGS
[2]
The plaintiff’s action is premised on the following claims:
2.1
Claim A – unlawful arrest: On 3 January 2005 the second
defendant arrested the plaintiff without a warrant
of arrest,
alternatively the ‘first defendant’ had no reasonable
grounds to suspect that the plaintiff had committed
the offence for
which he was arrested.
2.2
Claim B – following the arrest, the plaintiff was detained at
Grootvlei Prison for a period of 9 days
at the instance of the second
defendant and various other policemen whose names and ranks are
unknown to plaintiff. Neither the
second defendant nor other police
officials had reason to believe that the National Prosecution
Authority might prosecute the matter
and their actions were
mala
fide
.
2.3
Claim C – the subsequent criminal proceedings against the
plaintiff on charges of conspiracy to murder
were malicious as the
‘defendants’ and other members of the South African
Police Services had no reasonable and probable
cause to proceed
therewith; their actions were motivated by malice and were
animus
inuriandi
.
2.4
Claim D - relates to special damages suffered as result of the
initial detention after the arrest.
[3]
The plaintiff avers in para 18 of the particulars of claim that
proper notice was
given to the defendants in terms of ss 3 read with
5 of the Institution of Legal Proceedings against Certain Organs of
State Act
40 of 2002 [Institution of Legal Proceedings Act].
[4]
The defendants initially served a plea on 12 March 2008 containing
three special pleas
and a plea over. The defendants thereafter
amended their plea on 25 March 2019. In the amended plea the
defendants raise the following
special pleas:
4.1
First special plea by the first defendant – non-compliance with
the requirements of the Institution
of Legal Proceedings Act: The
plaintiff failed to give proper notice to the first defendant within
6 months from the date on which
the debt which the plaintiff seeks to
recover fell due as envisaged in terms of
ss
3(1) read with
3(2)(a) of the Institution of Legal Proceedings Act. The plaintiff’s
debt became due on 3 January 2005 whilst
the
s
3 notice was
only served on 12 July 2005.
4.2
Second special plea by first and second defendants –
prescription: The plaintiff’s cause of action
for alleged
unlawful arrest and detention arose on 3 January 2005 and would, in
terms of the provisions of the
Prescription Act 68 of 1969
have
become prescribed on 3 January 2008. As result the plaintiff’s
claim against the defendants had been extinguished
by prescription
when the summons was served on the ‘defendant’ on 4
January 2008.
4.3
Third special plea by the first and second defendants –
non-joinder: The plaintiff avers in para 8 of
the particulars of
claim that he was detained at the Grootvlei Prison for 9 days at the
instance of the first defendant’s
officials. In para 11 of the
particulars of claim the plaintiff avers that the criminal
proceedings against him on conspiracy to
commit murder were malicious
in that ‘the first defendant’s officials had no
reasonable probable cause to proceed with
it’.
[5]
The plaintiff filed a replication to the defendants’ amended
plea only with
regards to the plea of prescription. The plaintiff
denies that the claim had prescribed and avers that the period of
prescription
would only run from date of acquittal and/or release
from custody.
[6]
The following facts appear from the first and second defendants’
plea that are
relevant for adjudication of the special pleas. The
plaintiff’s arrest without a warrant on 3 January 2005 is
admitted. The
defendants plead that the arrest was lawful as it
satisfied the requirements of
s
40(1)(b)
of the
Criminal
Procedure Act 51 of 1977
. The first defendant also pleads that the
plaintiff was brought before Court on the day of his arrest whereupon
the Court ordered
that the plaintiff be detained at Grootvlei
correctional facility until his release on 12 July 2005. The first
defendant pleads
that the plaintiff’s detention was therefore
not at the first defendant’s members’ insistence. The
period of
detention is common cause. The first defendant also admits
that the charges against the plaintiff were withdrawn on 5 April
2009.
[7]
The defendants’ special pleas were separated in terms of the
provisions of
Rule 33(4)
from the remaining issues to be adjudicated
first. At commencement of the proceedings on 26 April 2022, the
defendants’ counsel
informed me that, as far as they were
concerned, the matter was not ripe for hearing as the plaintiff
failed to comply with the
directives issued by Daffue J during the
Uniform
rule 37(8)
pre-trial proceedings. To this end Daffue J issued
a direction on 20 May 2019 that the plaintiff must make application
for condonation
regarding non-compliance with s 3 of the Institution
of Legal Proceedings Act before or on 17 June 2019. The pre-trail
conference
was postponed to 26 August 2019 on the assumption that the
condonation application would be finalised during August 2019.
[8]
The plaintiff’s counsel however recorded that they were ready
to proceed, and
that the plaintiff did not make an application for
condonation in terms of
s
3(4) of the Institution of
Proceedings Act as it was not necessary.
[9]
The first defendant in turn lamented the fact that it had not been
informed by the
plaintiff that he had elected to abandon an
application for condonation in terms of the Institution of Legal
Proceedings Act. The
result was that the first defendant was not
properly prepared to proceed with the special pleas. The plaintiff,
intending to proceed
on the allocated trial dates, had drawn heads of
argument to facilitate arguments of the special pleas which it served
on the first
defendant shortly before the proceedings commenced.
[10]
Both parties informed me that they did not intend to lead evidence
regarding the special pleas
but would argue the special pleas on the
pleadings as they stand. I deemed it to be in the interests of
justice to postpone the
case to 19 May 2022 to hear the arguments on
the special pleas. I reserved the costs of the postponement.
PLAINTIFF’S
CONTENTIONS
[11]
11.1
The plaintiff contends that the unlawful arrest and detention
constitute a continues wrong. In support of the contention
the
plaintiff relies on the unreported judgment in this Division in the
matter between
Mothobi
Albert Tlake v The Minister of Police and Another
,
[3777/2014] FSHC (20 October 2017)
(
Tlake
).
Plaintiff contends that the Court held in
Tlake
that the proceedings from arrest to acquittal must be regarded as
continuous, and no personal injury has been done to the accused
until
the prosecution has been determined by his discharge. The court
relied on the following passage in
Unilever
Bestfoods Robertsons (Pty) Ltd and Others v Soomar and Another
[1]
(
Unilever)
:
“
[W]hile
the prosecution is pending its result cannot be allowed to be
prejudged in the civil action. The proceedings from arrest
to
acquittal must be regarded as continuous, and no personal injury has
been done to the accused until the prosecution has been
determined by
his discharge.”
The
Court also referred to the then unreported judgment of Spilg J, which
has in the meantime been reported as
Makhwelo v Minister of
Safety and Security
2017 (1) SA 274
(GJ)
(
Makhwelo
),
where the Court reached a similar conclusion as quoted above with
regards to a claim for unlawful arrest and detention.
11.2
It is appropriate to deal with the facts in
Tlake
. As
far as can be discerned from the judgment the plaintiff relied on two
distinct acts of unlawful arrest and detention. On the
first occasion
he was arrested and detained whereafter the charges were withdrawn.
The plaintiff in that matter was thereafter
again arrested, detained
and prosecution ensued. The judgment summarises the claim in para 2
of the judgement as “[Plaintiff]
avers that arrest(s),
detention, and prosecution was unlawful, malicious, unreasonable and
unjustified… He claims general
damages from the defendants in
the amount of R350 000.00 for unlawful detention, arrest, malicious
prosecution, injury to dignity
and freedom of movement.” The
defendants’ special plea of prescription in that matter related
only to the first arrest
and period of detention. The defendants
pleaded that the plaintiff’s claim for the first arrest and
period of detention prescribed
as summons was issued more than 3
years after the arrest and detention.
11.3
It is not readily discernible whether the plaintiff’s claim was
premised on malicious arrest, detention and prosecution
or unlawful
arrest, unlawful detention and malicious prosecution, or unlawful
arrest and detention on the first occasion and thereafter
malicious
arrest, detention and prosecution.
11.4
The judgment was interpreted and argued before me as determining that
in the event of any unlawful arrest and detention,
proceedings from
arrest to acquittal must be regarded as continuous, and no personal
injury has been done to the accused until
the prosecution has been
determined by his discharge.
[12]
Regarding the method of computation of the period for delivery of the
s 3 notice and prescription,
the plaintiff argued that the civil
method of computation would result in the first day being excluded
and the last day being included
except where the contrary intention
appears from legislation. The plaintiff relied on the dictum in
RAF
v Masindi
2018 (6) SA 481
(SCA) paras 12 and 13
.
[13]
The plaintiff contends that its s 3 notice was served within the
required 6-month period as the
debt would only have become due when
the charges were withdrawn, thus 3 years from 5 April 2009. The
plaintiff’s counsel
also argued that whilst the plaintiff was
incarcerated, he could not consult with legal representatives.
[14]
As far as non-joinder of the National Prosecuting Authority is
concerned, the plaintiff submitted
in its heads of argument that a
case is made against the second defendant that the latter
‘instigated’ a prosecution
and would be held personally
liable. The argument is therefore that the issue of non-joinder does
not arise.
FIRST
DEFENDANT’S CONTENTIONS
[15]
The first defendant contends that the plaintiff’s claim which
he seeks to recover became
due on 3 January 2005 and as such the
notice which was transmitted by fax on 12 July 2005 was not given
within the required 6-month
period.
[16]
Based on the contention that the debt became due on 3 January 2005,
the first defendant also
contends that the debt would have been
extinguished by prescription when the summons was served on 4 January
2008.
[17]
The first defendant did not address the issue of non-joinder in its
heads of argument nor pursued
the issue in argument. It was however
also not formally abandoned.
LEGAL
PRINCIPLES
The
doctrine of legal precedents
[18]
The doctrine of precedent requires courts to follow the decisions of
coordinate and higher courts,
save if they are clearly wrong, and is
an intrinsic feature of the rule of law, which is in turn
foundational to our Constitution.
[2]
In
Camps
Bay
Brand
AJ held as follows:
“
The
doctrine of precedent not only binds lower courts, but also binds
courts of final jurisdiction to their own decisions. These
courts can
depart from a previous decision of their own only when satisfied that
that decision is clearly wrong. Stare decisis
is therefore not simply
a matter of respect for courts of higher authority. It is a
manifestation of the rule of law itself, which
in turn is a founding
value of our Constitution. To deviate from this rule is to invite
legal chaos.”
[19]
I may only depart from this Court’s decision in
Tlake
,
if it held in the event of unlawful arrest and detention that
proceedings from arrest to acquittal must be regarded as continuous,
and no personal injury has been done to the accused until the
prosecution has been determined by his discharge, if I am satisfied
that the decision is clearly wrong.
[20]
For the reasons that follow below, I
respectfully
disagree with the
ratio
decidendi
in
Tlake
to the extent that
it held or is capable of being interpreted to establish that
in
the event of any unlawful arrest and detention, the proceedings from
arrest to acquittal must be regarded as continuous, and
no personal
injury has been done to the accused until the prosecution has been
determined by his discharge.
The
nature of civil litigation in our adversarial system
[21]
In light of the approach of the parties to have the special pleas
adjudicated, it is imperative
to bear in mind the nature of civil
litigation in our adversarial system.
[22]
In
Mtokonya
v Minister of Police
[3]
(
Mtokonya
)
the Constitutional Court reiterated the injunction - issued by
that Court
[4]
- that courts must
not decide cases based on issues that have not been raised by the
parties in the papers. As Zondo J explained,
a court should not tell
a litigant what it should complain about. The injunction is subject
to one qualification, namely that a
court may decide a matter on a
point of law that has not been raised by the parties in the papers
where the common approach of
the parties proceeds on a wrong
perception of what the law is, and the point of law is apparent on
the papers.
[23]
Theron JA and Wallis JA explained it as follows in
Fischer
and Another v Ramahlele and Others
[5]
:
“
[13]
Turning then to the nature of civil litigation in our adversarial
system, it is for the parties, either in the pleadings or
affidavits
(which serve the function of both pleadings and evidence), to set out
and define the nature of their dispute, and it
is for the court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic
human rights guaranteed by
our Constitution, for '(i)t is impermissible for a party to rely on a
constitutional complaint that
was not pleaded'. There are cases where
the parties may expand those issues by the way in which they conduct
the proceedings. There
may also be instances where the court may
mero
motu
raise a question of law that emerges fully from the evidence
and is necessary for the decision of the case. That is subject to the
proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify the dispute
and for the court to determine that dispute and that dispute alone.
[14]
It is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important
they may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those
issues. A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties.
However, it is
then for the parties to determine whether they wish to adopt the new
point. They may choose not to do so because
of its implications for
the further conduct of the proceedings, such as an adjournment or the
need to amend pleadings or call additional
evidence. They may feel
that their case is sufficiently strong as it stands to require no
supplementation. They may simply wish
the issues already identified
to be determined because they are relevant to future matters and the
relationship between the parties.
That is for them to decide and not
the court. If they wish to stand by the issues they have formulated,
the court may not raise
new ones or compel them to deal with matters
other than those they have formulated in the pleadings or affidavits.
[15]
This last point is of great importance because it calls for judicial
restraint.”
The
institution of legal proceedings act
[24]
It is common cause that the debts forming the subject matter of the
plaintiff’s claims
respectively constitute ‘a debt’
as envisaged in the Institution of Legal Proceedings Act. Although
there was initially
a dispute regarding whether a notice was indeed
‘served’ on the first defendant when the matter served
before me on
the first occasion, the first defendant limited its
argument at the hearing to the question of whether the plaintiff
complied with
s
3(2)(a) of the aforesaid Act, in other words
whether the plaintiff served the notice of its intention to institute
proceedings for
recovery of the debt within six months from the date
on which the debt became due.
[25]
Section 2 of the Institution of Legal Proceedings Act provides in
relevant parts that, subject
to
s
3 and subsections (3) and
(4), a debt which became due after the date of commencement of the
aforesaid Act, will be extinguished
by prescription as contemplated
in Chapter III of the Prescription Act, 1969 (Act 68 of 1969), read
with the provisions of that
Act relating thereto.
[26]
Section 3 provides as follows:
“
3
Notice of intended legal proceedings to be given to organ of state
(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 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.
(b)
The court may grant an application referred to in paragraph (a) 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 was not unreasonably prejudiced by the failure.
(c)
If an application is granted in terms of paragraph (b), the court may
grant leave
to institute the legal proceedings in question, on such
conditions regarding notice to the organ of state as the court may
deem
appropriate.”
[27]
With regards to the Institution of Legal Proceedings Act, Moseneke
DCJ explained in his minority
judgement in
Barkhuizen
v Napier
:
[6]
“
[115]
Fourth, at least since the advent of our democracy, Parliament seems
to have adopted a new approach to ameliorate the consequence
of
time-limitation clauses in statutes. Here I have in mind the
Institution of Legal Proceedings Against Certain Organs of State
Act.
Its declared purpose is to regulate and harmonise the periods of time
within which to institute legal proceedings against
certain organs of
State and to give notice of such proceedings. Under s 2(2)(b), debts
that became due….”
[Footnotes excluded]
[28]
The Deputy Chief Justice continued to say:
“
[116]
The effect of this is that the prescription period for delictual
debts against the State organs, governed by the Institution
of Legal
Proceedings against certain Organs of State Act, is now three years.
This is in line with the prescription period that
pertains to
delictual debts in general. The period within which legal proceedings
may be instituted against State organs has therefore
been extended to
three years. In addition the notice of such proceedings must now be
given within six months from the date on which
the debt became due.
[117]
What is more, a court is empowered to condone non-compliance with the
notice provision if it is satisfied, among other things,
that good
cause exists for the failure to give timeous notice, and the organ of
State was not unreasonably prejudiced. This statute
therefore permits
account to be taken of the claimant's fault or the lack of it, as
well as prejudice suffered by the State or
the absence of it. In my
view these statutory trends in prescription of delictual claims
against the state and private entities
are indicative of the
boni
mores
.”
[Footnotes
excluded]
[29]
Didcott J held in
Mohlomi
v Minister of Defence
[7]
:
“
The
conventional explanation for demanding prior notification of any
intention to sue an organ of government is that, with its extensive
activities and large staff which tends to shift, it needs the
opportunity to investigate claims laid against it to consider them
responsibly and to decide, before getting embroiled in litigation at
public expense, whether it ought to accept, reject or endeavour
to
settle them.”
[30]
Section 3 of the Institution of Legal Proceedings Act is designed
primarily for the benefit of
organs of state, rather than prospective
litigants.
[8]
[31]
The plaintiff’s reliance on
RAF
v Masindi
supra
in these proceedings can be disposed of at this juncture. As
emphasised in
Masindi
[9]
,
the
Road Accident Fund Act 56 of 1996
[the RAF Act] is social
legislation, the primary purpose thereof being to give the greatest
possible protection to persons who
had suffered loss through
negligence or unlawful acts on the part of a driver or owner of a
motor vehicle. The Court in
Masindi
was concerned with “striking a balance between an infringement
of the guaranteed right of access to courts and the objective
of
statutory time limits whose function is 'bringing certainty and
stability to social and legal affairs, and maintaining the quality
of
adjudication”.
[32]
The Court in
Mabaso
[10]
had to consider whether there was a duty on an organ of state
receiving a notice in terms of the Institution of Legal Proceedings
Act to make a decision to accept, reject or settle a claim prior to
commencement of litigation. Regarding the reliance on the RAF
Act in
those proceedings, Makgoka JA held as follows:
“
There
are clear and discernible philosophical orientations between the
legislative scheme of the Fund and the Act under consideration.
Significantly, there is also a limit placed on the degree of
compensation in relation to the Fund. Moreover, their respective
stated purposes are vastly different. The RAF Act was enacted for the
benefit of claimants. On the contrary, as stated already,
the Act
under consideration was, in the main, enacted for the benefit of the
organs of state, rather than the claimants.”
[11]
[33]
Earlier in the judgment Makgoka JA said:
“
[26]
There is no constitutional challenge to the validity of s 3. It must
also be borne in mind that s 3 envisages that in the event
of a claim
being repudiated, the dispute would be fully ventilated before a
court of competent jurisdiction. Against that background
it is
difficult to understand how s 34 of the Constitution supports the
appellant's case. If anything, s 3 preserves the appellant's
right to
have his case adjudicated by court. It is thus difficult to see, as
contended for by the appellant, how a litigant's right
is frustrated
thereby. As pointed out above, s 5(2) of the Act affords the state an
opportunity to repudiate liability to a claimant,
but it certainly
does not oblige it to respond during the 30-day period.
[27]
It is plain that the dispute envisaged in s 34 is one in respect of
which legal proceedings have been instituted, and is therefore
capable of resolution by the application of law in a 'public hearing
before a court'. At the stage when a s 3 notice is given,
and until
legal proceedings are instituted, there is no adjudicable 'dispute'.
It follows that s 3 does not implicate the right
of access to
courts.”
[34]
The reliance on
Masindi
is therefore misplaced in my
view.
Prescription
[35]
The extinction of debts by prescription is governed by the
Prescription Act 68 of 1969
. The applicable provisions, in relevant
parts, provides as follows:
35.1
Section 10(1)
provides that subject to the provisions of Chapter 3
and 4 of the
Prescription Act, a
debt shall be extinguished by
prescription after the lapse of the period which in terms of the
relevant law applies in respect
of the prescription of such debt.
35.2
Regarding the period of prescription,
s
11(d)
finds
application to the claims under consideration.
Section 11(d)
provides
as follows:
“
save
where an Act of Parliament provides otherwise, three years in respect
of any other debt.”
35.3
Section 12 determines when prescription starts running and provides
in relevant parts as follows:
“
(1)
Subject to the provisions of subsections (2), (3), and (4),
prescription shall commence to run as soon as the debt is due.
(2)
If the debtor wilfully prevents the creditor from coming to know of
the existence of the debt, prescription shall not commence
to run
until the creditor becomes aware of the existence of the debt.
(3)
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.”
35.4
Section 13 provides that the completion of prescription will be
delayed if any of the impediments listed in the section
is present.
35.5
Sections 14 and 15 provides for the interruption of prescription by
respectively an acknowledgement of debt or service
on the debtor of
any process whereby the creditor claims payment of the debt subject
thereto that the creditor successfully prosecutes
the claim under the
process in question to final judgment and does not abandon the
judgment or the judgment is not set aside.
[36]
For a debt to be due and prescription to start running
s
12(3)
requires that the creditor must have knowledge of the identity of the
debtor and of the ‘facts from which the debt arises’.
Section 12(3) does not require, before a debt can be said to be due
or before prescription can start running, that the creditor
must know
that the conduct of the debtor giving rise to the debt is wrongful
and actionable as that is a legal conclusion and not
a fact. In this
regard Zondo J observed in
Mtokonya
[12]
Zondo
J:
“
Furthermore,
to say that the meaning of the phrase 'knowledge . . . of the facts
from which the debt arises' includes knowledge
that the conduct of
the debtor giving rise to the debt is wrongful and actionable in law
would render our law of prescription so
ineffective that it may as
well be abolished. I say this because prescription would, for all
intents and purposes, not run against
people who have no legal
training at all. That includes not only people who are not formally
educated but also those who are professionals
in non-legal
professions. However, it would also not run against trained lawyers
if the field concerned happens to be a branch
of law with which they
are not familiar. The percentage of people in the South African
population against whom prescription would
not run when they have
claims to pursue in the courts would be unacceptably high.”
[13]
[37]
The commencement of prescription is not dependent on the plaintiff
having knowledge of the legal
consequences of the facts.
[14]
[38]
When considering
prescription, whilst it often leaves an unpalatable taste because a
party may receive a benefit without rendering
the required counter
performance or be left without recourse where a liability is
extinguished,
this is a result
inherent in the law of prescription. The law tolerates the extinction
of debts through prescription because of
the public interest in
finality. For these reasons it is necessary to remind oneself that
unreasonableness of the result of extinctive
prescription or what on
the face of it may appear to be unjust are not relevant issues when
considering whether a debt has prescribed.
[39]
The onus to prove
extinctive
prescription rests on the first defendant, being the debtor claiming
prescription, to establish the date by which the
claimant acquired,
or could by exercising reasonable care have acquired, knowledge of
the facts giving rise to the claim.
[15]
If a plaintiff relies on the interruption or delay of the running of
prescription, the plaintiff bears the onus to prove that.
In
Cook
v Morrison and Another
[16]
(
Cook
)
Rogers AJA explained:
“
In
regard to s 13(1)(d) of the Act, Cook did not file a replication
alleging that completion of prescription was delayed by virtue
of a
relationship of partnership between himself and the defendants.
Although the onus rested on the defendants to establish when
prescription began to run, the onus was on the plaintiff to allege
and prove that the completion of prescription was delayed (Naidoo
NO
and Others v Naidoo and Another 20
10 (5) SA 514
(KZP) para 16
and authorities there cited).”
[40]
The default position is that a plaintiff must raise the issue of
interruption or delay in the
running of prescription by means of a
replication. It may not be necessary if the facts giving rise to the
interruption or delay
in completion of prescription is sufficiently
alleged in the plaintiff’s particulars of claim. In
Cook
[17]
Rogers AJA explained:
“
I
accept that a replication may be unnecessary where the facts giving
rise to the delay in completion of prescription are sufficiently
alleged in the creditor's particulars of claim. That was not the case
here.”
When
does prescription start with regards to unlawful arrest, unlawful
detention and malicious prosecution
[41]
As stated above, the plaintiff relies on three distinct claims, to
wit unlawful arrest, unlawful
detention following the arrest and
lastly based on malicious prosecution.
[42]
The claims so formulated by the plaintiff corresponds with the
well-established legal position
regarding unlawful arrest, detention
and malicious prosecution.
[43]
43.1
The court in
Tlake
[18]
was concerned with two separate acts of unlawful arrest and detention
and as stated above, it is not discernible from the judgment
whether
the plaintiff relied on unlawful arrest and detention or malicious
arrest, detention and prosecution. The distinction is
an important
one as different considerations will apply to unlawful arrest and
detention with or without prosecution one the one
hand and malicious
arrest and detention with or without prosecution on the other hand as
will be dealt with below.
43.2
The court in
Makhwelo
[19]
was concerned only with claims for unlawful arrest and detention but
applied the well-established principles regarding prescription
in
claims for malicious prosecution to claims for unlawful arrest and
detention.
43.3
Insofar as the court in
Tlake
was not concerned with
malicious arrest, malicious detention and malicious prosecution or in
the event that the dictum is susceptible
to being interpreted as
holding that prescription only commences to run in the event of a
claim for unlawful arrest and detention
when criminal prosecution is
finalised, thus that the unlawful arrest, unlawful detention and
subsequent criminal prosecution is
to be treated as one continuous
transaction which cannot be regarded as complete until the outcome of
the criminal prosecution
is known, I am respectfully of the view that
the dictum is clearly wrong.
43.4
I disagree that prescription regarding claims for unlawful arrest and
unlawful detention only commence to run when the
criminal prosecution
is finalised, as is the case with a claim for malicious prosecution.
Makhwelo
and to the extent that
Tlake
is
capable of being read to endorse the same conclusion as arrived at in
Makhwelo
, then it too, depart from the well-established
principles relating to prescription of claims for unlawful arrest and
detention.
[44]
The question regarding when prescription commences to run with
regards to unlawful arrest, unlawful
detention and malicious
prosecution respectively has been authoritatively decided and
concomitantly therefore the question whether
a claim for unlawful
arrest and subsequent detention (as opposed to malicious prosecution
which may include malicious arrest and/or
detention) and the
prosecution thereafter is to be treated as one continuous transaction
which cannot be regarded as complete until
the outcome of the
criminal prosecution is known.
[45]
In
Thompson
and Another v Minister of Police and Another
[20]
(
Thompson
)
the plaintiffs in the two actions both instituted actions against the
Minister of Police and a Warrant Officer in which they claimed
damages in respect of an alleged wrongful arrest; and in the
alternative they claimed damages against the Warrant Officer alone
in
respect of an alleged malicious arrest, malicious detention and
malicious prosecution. The Court was requested to adjudicate
on a
special plea of prescription raised by the defendants in each case by
means of a stated case. Eksteen J held as follows in
the passage at
374G-376A, which apposite to the matter at hand:
“
Both
claims, i.e. in respect of the wrongful arrest and in respect of the
malicious arrest, are based on the
actio injuriarum
and in
both instances the
animus
injuriandi
or
dolus
is
an essential element.
In the case of wrongful arrest, however, the
intention may be said to be direct - dolus directus - as it is done
with the definite
object of hurting the defendant in his person,
dignity or reputation
(Melius de Villiers on The Law of Injuries,
p. 27).
The arrest itself is prima facie such an odious
interference with the liberty of the citizen that animus injuriandi
is thereby presumed
in our law, and no allegation of actual
subjective animus injuriandi is necessary
(Foulds v. Smith,
1950
(1) SA 1
(AD) at p. 11).
In such an action the plaintiff need only
prove the arrest itself and the onus will then lie on the person
responsible to establish
that it was legally justified
. (Theron
v. Steenkamp,
1928 CPD 429
at p. 432; Ingram v. Minister of
Justice,
1962 (3) SA 225
(W) at p. 227).
In
the case of malicious arrest the intention to injure is indirect -
dolus indirectus - as the action of the defendant in instigating
the
arrest or setting the wheels of the criminal law in motion is done as
a means for effecting another object, viz. the arrest
of the
plaintiff, the consequence of which act the defendant is aware will
necessarily be to hurt the plaintiff in regard to his
person, dignity
or reputation
.
In
an action based on malicious prosecution it has been held that no
action will lie until the criminal proceedings have terminated
in
favour of the plaintiff. This is so because one of the essential
requisites of the action is proof of a want of reasonable and
probable cause on the part of the defendant, and while a prosecution
is actually pending its result cannot be allowed to be prejudged
by
the civil action
(Lemue
v Zwartbooi, supra at p. 407).
The
action therefore only arises after the criminal proceedings against
the plaintiff have terminated in his favour or where the
Attorney-General has declined to prosecute
.
To my mind the same principles must
apply to an action based on malicious arrest and detention where a
prosecution ensues on such
arrest, as happened in the present case
.
The proceeding from arrest to
acquittal must be regarded as continuous, and no action for personal
injury done to the accused person
will arise until the prosecution
has been determined by his discharge
.
(Bacon v. Nettleton,
1906 T.H. 138
at pp. 142 - 3).
From
this it follows that the plaintiffs' cause of action in respect of
the alleged malicious arrest and detention in the present
case, can
only have arisen on the judgment of this Court allowing the appeal
against their conviction in the magistrate's court
,
i.e. on 29th April, 1969. This means that, in giving notice to the
second defendant on 20th September, 1968 and issuing summons
on 25th
October, 1968, they were complying with the provisions of sec. 32 of
Act 7 of 1958, and it consequently becomes unnecessary
for me to
consider whether they were in fact required so to comply or whether
the second defendant was acting in pursuance of the
Police Act at the
time he was alleged to have committed the delict.
In
the main claim based on wrongful arrest however the position is
different
.
There
the delict is committed by the illegal arrest of the plaintiff
without the 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 that prosecution 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
.
In the present case, therefore, the cause of action in the main
claims arose on 10th April, 1967. In terms of the stated case
I am
asked to assume not only that the arrest was wrongful, but also that
in effecting the arrest Hansen was acting in pursuance
of the Police
Act. That being so, sec. 32 of Act 7 of 1958 applies and it is clear
that this section has not been complied with
inasmuch as both the
notice given to the defendants and the subsequent issue of summons
were outside the periods prescribed by
that section. Plaintiffs'
actions against first and second defendants for wrongful arrest are
therefore out of time and cannot
be entertained. This is the only
cause of action preferred against the first defendant, and in the
light of the conclusions to
which I have come, it follows that both
the plaintiffs' actions against the first defendant must be dismissed
with costs, which
costs include the first defendants costs in this
proceeding.”
[Emphasis added]
[46]
Eksteen J dealt with two distinct claims, one for wrongful or
unlawful arrest and an alternative
claim for malicious arrest and
detention where a prosecution ensues. A proper reading of the afore
quoted passage clearly establishes
that Eksteen J was not dealing
with the claim for wrongful/unlawful arrest when he said, ‘
the
proceeding from arrest to acquittal must be regarded as continuous,
and no action for personal injury done to the accused person
will
arise until the prosecution has been determined by his discharge
’.
Eksteen J was concerned with the claim for malicious arrest and
detention from which a prosecution ensued which the learned
Judge
held would in his view be subject to the same principles that govern
a claim for malicious prosecution, ergo the claim in
such an instance
only arises when the prosecution has been finalised in the
plaintiff’s favour or the prosecution has been
withdrawn.
[47]
The quoted passage clearly distinguishes between a claim for
wrongful/unlawful arrest and malicious
arrest and detention from
which prosecution ensues. As aptly stated by Eksteen J, in the case
of a claim for unlawful arrest the
delict is committed by the illegal
arrest of the plaintiff without the due process of the law.
Therefore, improper motive or want
of reasonable and probable cause
that would be required for malicious arrest have no legal relevance
to the cause of action. It
is legally irrelevant whether any
prosecution ensues subsequent to the arrest or if it does, what the
outcome of that prosecution
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.
[48]
Rabie CJ said in
Minister
of Law and Order and Others v Hurley and Another
[21]
:
“
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified
in law.”
Unlawful
arrest and detention involve constraints on personal liberty where
the wrongdoer's legal liability exists even in the absence
of his
appreciation of the wrongful nature of his injurious act.
[22]
[49]
In
Minister
of Safety & Security v Sekhoto
[23]
(
Sekhoto
)
Harms DP held:
“
[42]
While it is clearly established that the power to arrest may be
exercised only for the purpose of bringing the suspect to justice,
the arrest is only one step in that process. Once an arrest has been
effected, the peace officer must bring the arrestee before
a court as
soon as reasonably possible; and at least within 48 hours, depending
on court hours. Once that has been done, the authority
to detain,
that is inherent in the power to arrest, is exhausted. The authority
to detain the suspect further is then within the
discretion of the
court.
[43]
The discretion of a court to order the release or further detention
of the suspect is subject
to wide-ranging, and in some cases
stringent, statutory directions. Indeed, in some cases the suspect
must be detained pending
his trial, in the absence of special
circumstances. I need not elaborate for present purposes, save to
mention that the Act requires
a judicial evaluation to determine
whether it is in the interests of justice to grant bail; that in some
instances a special onus
rests on a suspect before bail may be
granted; and the accused has in any event a duty to disclose certain
facts, including prior
convictions, to the court. It is sufficient to
say that, if a peace officer were to be permitted to arrest only once
he is satisfied
that the suspect might not otherwise attend the
trial, then that statutory structure would be entirely frustrated. To
suggest that
such a constraint upon the power to arrest is to be
found in the statute by inference is untenable.
[44]
While the purpose of arrest is to bring the suspect to trial, the
arrestor has a limited role
in that process. He or she is not called
upon to determine whether the suspect ought to be detained pending a
trial. That is the
role of the court (or in some cases a senior
officer). The purpose of the arrest is no more than to bring the
suspect before the
court (or the senior officer) so as to enable that
role to be performed.”
[Footnotes
and case law referred to in the text omitted]
[50]
Sekhoto
was referred to and explained in
De
Klerk v Minister of Police
[24]
(
De
Klerk
)
where the majority in the Constitutional Court established that the
Minister of Police may in certain circumstances be held liable
for
post-remand detention where the requisite causality therefore is
established. In
De
Klerk
the unlawfulness of the arrest and fault was not contested, only the
liability of the Minister of Police for the post-remand detention.
[51]
The Constitutional Court emphasised in
Mahlangu
and Another v Minister of Police
[25]
(
Mahlangu
)
that
the
‘
prism
through which liability for unlawful arrest and detention should be
considered is the constitutional right guaranteed in s
12(1), not to
be arbitrarily deprived of freedom and security of the person’
which rights together with the right to human
dignity are fundamental
rights entrenched in the Bill of Rights.
[26]
The Court confirmed:
“
It
follows that in a claim based on the interference with the
constitutional right not to be deprived of one's physical liberty,
all that the plaintiff has to establish is that an interference has
occurred. Once this has been established, the deprivation is
prima
facie unlawful, and the defendant bears an onus to prove that there
was a justification for the interference.”
[27]
[52]
Once the plaintiff in an action for unlawful arrest and detention has
established deprivation
of his physical liberty, the deprivation is
prima facie unlawful. The defendant bears the onus to prove
justification.
[53]
It is not necessary that a person must be convicted of the offence he
was arrested for in order
for the arrest to have been lawful. The
eventual acquittal or conviction by itself does not prove that an
arrest was lawful or
unlawful nor would it prove that detention
following the arrest was lawful or unlawful.
[28]
The lawfulness or unlawfulness of an arrest does not by implication
render subsequent detention lawful or unlawful.
[29]
[54]
Whilst arrest is frequently followed by detention, wrongful detention
need not be preceded by
any arrest.
[30]
[55]
A claim for wrongful arrest and detention ‘seeks to compensate
a claimant for the infringement
of different interests of
personality, namely the restriction of his or her physical freedom of
movement and also impairment of
his or her subjective feelings of
dignity or self-respect’.
[31]
[56]
Unlawful arrest and detention must not be conflated with malicious
arrest and detention. Hulley
AJ explained in
Lebelo
[32]
“
An
arrest is malicious if the arrestor makes improper use of the legal
process to deprive the plaintiff of his liberty. In other
words, if
he arrests the plaintiff for a purpose not contemplated in the
empowering statute. Intent and motive, whilst related,
are discrete
concepts. As pointed out by Stratford JA in Gluckman v Schneider
936
AD 151
at 159.: 'Motive . . . is the actuating impulse preceding
intention.' Intention is an expression of the will, rather than a
desire
[33]
; motive is the
desire.
[70]
It is important to bear in mind that the present matter is concerned
with unlawful arrest and
detention, and not malicious arrest and
detention. It is therefore important to ensure that traces of the
latter cause of action
not seep into the former.”
[57]
In this Division
[34]
as well
as other Divisions it has consistently been held that prescription
for unlawful arrest will in principle commence to run
when the act of
arrest is completed. In the words of Hulley AJ on behalf of the Full
Court in
Lebelo
[35]
:
“
A
wrongful arrest involves a single act, but, for so long as the
accused remains in the detention of or under the vicarious control
of
the Minister of Police, his detention constitutes a continuing
wrong.”
[58]
In
Sefatsa and Others v Minister
of Police and Others
(A44/2019)
[2019] ZAFSHC 217
(14 November
2019)
the Full Court (Van Zyl J, P.E.
Molitsoane J and L Moeng AJ) heard an appeal against the dismissal of
an application for condonation
for failure to give a s 3 notice (in
terms of the Institution of Legal Proceedings Act) timeously. The
applicants issued summons
claiming damages for unlawful arrest and
detention and malicious prosecution. The court a quo refused to grant
condonation for
the failure to give notice within the required period
with regards to the claims for unlawful arrest and detention but
granted
condonation regarding the claim for malicious prosecution.
The appellants were arrested by members of the IPID. The Court per
Molitsoane
J held that prescription did not start to run on the date
of arrest or detention in that matter because the evidence
established
that the appellants did not know the identity of the
debtor when they were arrested and detained. The debt only became due
when
they were later advised of the identity of the debtor.
[59]
Unlawful arrest, subsequent detention and prosecution is not to be
treated as one continuous
transaction which is not completed until
the outcome of the criminal prosecution.
[60]
In
Minister
of Police and Another v Yekiso
[36]
(
Yekiso
)
the Full Court of the Western Cape High Court heard an appeal against
the decision of the court
a
quo
to grant condonation for the failure of the respondent (Mr Yekiso) to
comply with the notice requirements set out in
s
3 of the Institution of Legal Proceedings Act, in respect of his
claims for damages against the Minister of Police based on unlawful
arrest and detention, and against the National Prosecuting Authority
(NPA) based on unlawful detention and malicious prosecution.
The
court a quo from which the appeal lay, had reached a similar finding
as the Court did in
Tlake
[37]
and
Makhwelo
[38]
,
namely that the claim for unlawful arrest, subsequent detention and
malicious prosecution was a continuous transaction which could
not be
regarded as complete until the outcome of the criminal prosecution.
[61]
In order to determine whether the requirements of
s
3(4) of
the Institution of Legal Proceedings Act were satisfied, the Full
Court had to determine whether the applicant in the court
a quo had
shown that good cause existed for the failure of an applicant to
comply and whether the debt had not been extinguished
by
prescription.
[62]
It is necessary to briefly deal with the relevant facts in
Yekiso
.
Mr Yekiso was arrested on 21 February 2006 and detained for the
period 22 February 2006 until 7 October 2011 when he was released.
He
served his summons on the Minister and the NPA on 21 July 2014 and 1
September 2014, respectively. The Minister and NPA contended
that Mr
Yekiso’s claim based on his unlawful arrest and detention had
prescribed in terms of
s
11(d)
of the
Prescription Act.
[63
]
The Full Court held as follows with regards to the court a quo’s
finding that the claim for
unlawful arrest, subsequent detention and
malicious prosecution was a continuous transaction which could not be
regarded as complete
until the outcome of the criminal prosecution:
“
[18]
In the ordinary course the respondent's claims based on unlawful
arrest in February 2006 prescribed on 21 February 2009 in
terms of
s
11(d)
of the
Prescription Act. Before
the court a quo, respondent
contended that the claim for unlawful arrest, subsequent detention
and malicious prosecution was a
continuous transaction which could
not be regarded as complete until the outcome of the criminal
prosecution.
[19]
The court a quo unfortunately erred in finding that the claim for
unlawful arrest and subsequent detention and prosecution
was to be
treated as one continuous transaction which could not be regarded as
complete until the outcome of the criminal prosecution.
This finding
is clearly in conflict with the approach adopted in Lombo v African
National Congress
2002 (5) SA 668
(SCA) para 26 and with the
concept of a continuous wrong as set out in Barnett and Others v
Minister of Land Affairs and Others
2007 (6) SA 313
(SCA)
(2007
(11) BCLR 1214
;
[2007] ZASCA 95)
para 20:
'In
accordance with the concept, a distinction is drawn between a single,
completed wrongful act — with or without continuous
injurious
effects, such as a blow against the head — on the one hand, and
a continuous wrong in the course of being committed,
on the other.
While the former gives rise to a single debt, the approach with
regard to a continuous wrong is essentially that
it results in a
series of debts arising from moment to moment, as long as the
wrongful conduct endures. (See e.g. Slomowitz v Vereeniging
Town
Council
1996 (3) SA 317
(A); Mbuyisa v Minister of Police,
Transkei
1995 (2) SA 362
(TK)
(1995 (9) BCLR 1099)
; Unilever
Best Foods Robertsons (Pty) Ltd and Others v Soomar and Another
2007
(2) SA 347
(SCA) in para [15].'
[20]
It appears that Mr Godla, who appeared on behalf of the respondent,
was alive to this difficulty and, accordingly, in his heads
of
argument prepared for this appeal changed respondent's case and
raised the issue of
s 13
of the
Prescription Act to
counter the
problem of there being a discrete set of events rather than one
continuous process from arrest to release. This latter
argument had
not been pleaded by the respondent, and it had not been raised in the
founding affidavit in the application for condonation
nor canvassed
in argument by respondent in the court a quo when the condonation
application was heard.
…
.
[27]
On the basis that the continued detention from 22 February 2006 until
7 October 2011 gave rise to a separate cause of action
for each day
that he was so detained, the detention period from 22 February 2006
until 21 July 2011 had also prescribed for the
same reasoning as
employed in respect of the unlawful arrest. The proceedings against
first appellant commenced when summons was
issued on 21 July 2014 and
therefore it would mean that a period of more than three years had
elapsed for the detention period
ending on 21 July 2011. On the same
basis a period of more than three years had elapsed since 1 September
2011 when the respondent
served summons on the second appellant on 1
September 2014.
[28]
Accordingly, the respondent has not satisfied the first requirement
for condonation in terms of s 3(4) of the Act, namely that
the debt
had not been extinguished by prescription, in respect of his
detention until 2 September 2011. The claims based on malicious
prosecution and for the detention from 2 September 2011 to 7 October
2011 have not prescribed. This latter situation requires an
examination as to whether respondent has met the requirement of 'good
cause'.”
[64]
In
Annari
du Plessis v Minister of Police and 2 Others
[39]
(
Du
Plessis
),
a judgment of Baqwa J, Gauteng Division, Pretoria, the Court was
called upon to decide whether the plaintiff’s claim for
wrongful arrest and subsequent detention, had prescribed. The
relevant facts were as follows. The plaintiff was arrested without
a
warrant and charged for defeating the ends of justice. She was
subsequently convicted and sentenced. The conviction and sentence
were later set aside on appeal. The plaintiff waited for the criminal
trial and thereafter the appeal to be finalised whereafter
she sued
the defendant for wrongful arrest and her detention from 12-14 August
2011.
[65]
Baqwa J was, amongst others, called upon to consider the judgment of
Spilg J in
Makhwelo
[40]
,
the last-mentioned case which was also referred to, as stated above,
in
Tlake
[41]
in support of the conclusion reached by the Court. At para 17 the
Court held, with reference to
Thompson
[42]
,
that regarding the cause of action based on unlawful arrest,
prescription begins to run as soon as the illegal arrest has been
made. Baqwa J held as follows with regards to the plaintiff’s
reliance on
Makhwelo
[43]
:
“
The
fact of the matter is that the plaintiff’s claim in the present
action is not malicious prosecution in which case the
plaintiff would
have to wait for the criminal case to run its course. The
requirements for a malicious prosecution claim and the
requirements
for a claim arising out of wrongful arrest ought not to be conflated.
The plaintiff’s claim us thus not assisted
by any legal
conclusion that may be reached by the court, setting aside her
conviction and sentence.”
I
associate myself fully with Baqwa J’s observations.
[66]
Baqwa J also relied on another unreported decision in the matter of
Lawrence
Nyiko Nkwinika v Detective Malapane and Another
[44]
where Mali AJ held:
“
In
Marchel Labuschagne v Minister of Safety and Security, the court
found that the trigger date was the date of the arrest and not
the
date of the withdrawal of the matter against the plaintiff. This
matter has similarity of certain facts in the present case.”
[45]
[67]
In
Mtokonya
[46]
supra the Constitutional Court heard an appeal in the context of a
special case in terms of rule 33. The facts of the matter were
as
follows. The applicant sued the Minister of Police for damages
arising from wrongful arrest and detention by the South African
Police Service. The applicant claimed that he had been detained for
more than 48 hours without appearing before a court. The Minister
by
means of a special plea submitted that the applicant's claim had
prescribed because, by the time summons was served on it during
April
2014 more than three years had passed since the debt had become due
i.e., on the applicants' release from detention in September
2010
when he knew that he was arrested and the identity of the debtor. The
legal question that had to be decided was whether a
creditor was
required to have knowledge that the conduct of the debtor giving rise
to the debt was wrongful and actionable before
prescription could
start running. The majority held, as stated above, that
s
12(3)
does not require, before a debt can be said to be due or before
prescription can start running, that the creditor must know
that the
conduct of the debtor giving rise to the debt is wrongful and
actionable as that is a legal conclusion and not a fact.
[68]
In
Lombo
v African National Congress
[47]
(
Lombo
)
the Supreme Court of Appeal held as follows regarding the claim for
unlawful detention:
“
[26]
The appellant's position is somewhat different in regard to his claim
for unlawful detention. His cause of action in this respect
did not
arise once and for all on the day he was first detained, nor did it
first arise on the day of his release from detention.
His continuing
unlawful detention (if such it was) would notionally have given rise
to a separate cause of action for each day
he was so detained (Ngcobo
v Minister of Police
1978 (4) SA 930
(D), following Slomowitz's
case supra). The decision in Ramphele v Minister of Police
1979
(4) SA 902
(W), if not distinguishable on the facts, must be taken to
have been wrongly decided.
[27]
On his release in August 1991 the provisions of s 13(1) [on the facts
of the case] would have entitled the appellant to claim
damages for
wrongful detention for the full period of his detention provided he
instituted action within the prescribed one-year
period, something he
failed to do. However, the three-year prescriptive period provided in
s 11(d) of the Act preserved any claim
for unlawful detention arising
within the period of three years preceding the service of summons on
22 November 1993. His claim
for unlawful detention for the period 23
November 1990 until his release in August 1991 would therefore still
be extant. Any claim
for wrongful detention arising before 23
November 1990 will have been extinguished by prescription in
accordance with the principles
enunciated above.”
[69]
In
Khanya
v The Minister of Police
(5458/2014)
[2019] ZAFSHC 81
(20 June 2019)
Meintjies AJ applying
Lombo
[48]
and
Yekiso
[49]
concluded that ‘[u]nlawful arrest, subsequent detention and
prosecution is not to be treated as one continuous transaction
which
is not completed until the outcome of the criminal prosecution.’
[70]
In
Unilever
[50]
the Supreme Court of Appeal was concerned with the dismissal by the
court a quo of special claims of prescription where the plaintiffs’
cause of action lied on an elaborate conspiracy entered into between
all the defendants, according to the plaintiffs, which existed
during
the period June 1993 up to April 2001 and which had as its aim to
damage or destroy the plaintiffs’ business operations
in the
manufacture and sale of edible oils; to damage the plaintiffs in
their patrimony generally and in their good name and reputation.
[71]
Farlam JA held at para 11:
“
With
us also there can be no question of a delict having been committed
unless the conduct of the defendant of which the plaintiff
complains
has caused damage and then all damage resulting from that conduct,
whether ‘already realized or . . . merely prospective’,
can be claimed (see Oslo Land Co Ltd v Union Government
1938 AD 584
at 590), unless an essential element of the delict complained of
(such as the termination of proceedings in the plaintiff’s
favour in the case of the delict of malicious prosecution, see Lemue
v Zwartbooi, supra) has not yet occurred.”
[72]
The Court in
Unilever
discussed the principles relating to malicious proceedings after
assuming, without deciding, that the second plaintiff had available
to it a cause of action based on the abuse of legal proceedings and
the plaintiff’s submission that “the ‘termination
in favour of the plaintiff’ principle applicable in malicious
prosecution matters, which was applied in such cases as Lemue
v
Zwartbooi, supra, and Els v Minister of Law and Order, supra, must be
applied to cases where a defendant has maliciously made
false
statements to the revenue authorities to the prejudice of another and
succeeded in inducing the authorities to exercise the
draconian
powers vested in them by the revenue legislation against that other
person and to institute civil proceedings against
such person, who
has suffered damages in consequence.”.
[51]
[73]
Unilever
does not establish nor is it authority for the
proposition that with claims for unlawful arrest and unlawful
detention, the ‘proceedings
from arrest to acquittal must be
regarded as continuous, and no personal injury has been done to the
accused until the prosecution
has been determined by his discharge’.
[74]
For sake of clarity and as should be apparent from discussion above,
the finding in
Mofokeng
and
Others v The Minister of Police and Another
[52]
that a claim for detention arises only on release is wrong.
Prescription
regarding a claim for malicious prosecution
[75]
Regarding a claim for malicious prosecution, Dlodlo JA restated the
position as set out in
Thompson
[53]
as follows in
Holden
v Assmang
Ltd
[54]
:
“
[8]
In order to succeed, on the merits, with a claim for malicious
prosecution, a claimant must allege and prove —
'(a)
that the defendant set the law in motion (instigated or instituted
the proceedings);
(b)
that the defendant acted without reasonable and probable cause;
(c)
that the defendant acted with malice or animo iniuriandi; and
(d)
that the prosecution has failed'.
[55]
[9]
The importance of the fourth requirement, which is the only one with
which we are concerned in this appeal, lies in the fact
that the
claim can only arise if the proceedings were terminated in the
plaintiff's favour.
[56]
It is
fully in accordance with common sense and the practical resolution of
litigation that accused persons in criminal cases against
whom
prosecutions have commenced should not be required to commence civil
litigation before the conclusion of criminal proceedings.
The
extraordinary consequences of such a view would be that many civil
actions for wrongful or malicious prosecution would have
to be
commenced, later in most cases to be abandoned when the criminal case
was resolved in favour of the State and where no civil
claim could
succeed. That is so because a claim for malicious proceedings cannot
anticipate the outcome of proceedings yet to be
finalised. To hold
otherwise would permit recognition of a claim when the proceedings
may yet be decided against the plaintiff.
[10]
A claim for malicious prosecution can ordinarily only arise after the
successful conclusion of the criminal case in a plaintiff's
favour.
In a criminal matter, such a favourable conclusion in the plaintiff's
favour would occur on acquittal or the withdrawal
of the charges. The
institution of a civil claim based on a malicious prosecution, before
such prosecution has been finalised in
the plaintiff's favour, may
amount to prejudging the result of the pending proceedings.”
[76]
Prescription with regards to a claim for malicious prosecution
commences to run only when the
criminal proceedings or, as held in
Holden
supra, proceedings before statutorily created
professional tribunals, are finalised in his/her favour.
Conclusion
regarding prescription for unlawful arrest and unlawful detention
[77]
Prescription will ordinarily therefore commence to run as follows:
77.1
Unlawful arrest, immediately after the arrest has been effected (the
unlawful arrest constituting the so-called trigger-event);
77.2
Unlawful detention, each day of detention gives rise to a separate
claim with prescription running in respect of each
respective day.
[78]
Significantly, the onus to justify the interference with the liberty
of the plaintiff in the
case of unlawful arrest and detention rests
on the defendant. As stated above, all that the plaintiff has to
establish is that
an interference has occurred and once this has been
established, the deprivation is prima facie unlawful.
Computation
of time periods
[79]
In
Ex
Parte Minister of Social Development
[57]
the Constitutional Court held as follows regarding the computation of
time periods:
“
The
general common-law rule is that, in the calculation of time the
civilian method is applicable, unless a period of days is prescribed
by law or contracting parties intended another method to be used.
[58]
According to the civil computation method, a period of time expressed
in months expires at the end of the day preceding the corresponding
calendar day in the subsequent month. It is settled law that the
commencement of a period of time in curial calculation is governed
by
the ordinary civilian method where any unit of time other than days
is used.
[59]
It follows,
therefore, that 18 months from the date of judgment on 6 September
2004 ended at midnight on 5 March 2006.”
[60]
Non-joinder
[80]
The first respondent relied on joinder by necessity in the third
special plea. It however did
not pursue the special plea in its
arguments.
[81]
The plaintiff’s claim, for what appears to be post-remand
detention, clearly lies against
the first defendant. I am not
concerned with the merits of the matter nor do I express any opinion
on the matter in which it is
pleaded. As stated above, the Minister
of Police may in certain circumstances be held liable for post-remand
detention where the
requisite causality therefore can be established.
De
Klerk v Minister of Police
.
[61]
[82]
In light of the circumstances I am of the view that the third special
plea, if not formally abandoned
by the defendants should stand over
to be adjudicated with the remainder of the issues.
DISCUSSION
Prescription
of Claim A and Claim B
Claim
A (Unlawful arrest)
[83]
Prescription regarding the claim for unlawful arrest commenced to run
as soon as the unlawful
arrest on the plaintiff was effected. It is
not the plaintiff’s case that he was not aware of the identity
of the debtor
or the facts from which the debt arose. Coincidently
the summons was served on 4 January 2008 whilst the charges against
the plaintiff
were only withdrawn thereafter on 5 April 2009.
[84]
The plaintiff averred in the replication that the debt only became
due when the prosecution against
him was withdrawn, alternatively
after he was released. The plaintiff’s counsel’s attempt
to rely on the fact that
the plaintiff could not consult with legal
representatives whilst he was incarcerated cannot be sustained. These
facts were not
pleaded nor was any evidence presented. It is not open
to the plaintiff, in the circumstances, to pursue the point.
[85]
Service of the summons had to be effected by midnight on 2 January
2008 to suspend the running
of prescription regarding the claim for
unlawful arrest. The summons was only served on the first defendant
on 4 January 2008,
therefore after the debt had been extinguished by
prescription.
[86]
Claim A has therefore been extinguished by prescription and the first
and second defendants’
special plea of prescription in relation
to the aforesaid claim succeeds.
Claim
B (Unlawful detention)
[87]
In terms of the legal precedent each day of detention would
constitute a separate claim or more
aptly a separate debt that would
prescribe in terms of s 11(d).
[88]
The plaintiff’s contention that the claim for both unlawful
arrest and the detention arose on
3 January 2005 is premised on the
fact that the plaintiff was brought before the Court on the same day
and his detention thereafter
was by virtue of an order of the Court.
The plaintiff however relies on the fact that the continued detention
was at the behest
of the second defendant and members of the first
defendant acting in the course of their employment.
[89]
The claim therefore lies against the first and second defendants for
the continued detention
after the court appearance.
[90]
The detention commenced on 3 January 2005 and endured until 12
January 2005. The summons was
served on 4 January 2008. The result is
that the unlawful detention on 3 and 4 January 2005 prescribed as the
summons had to be
issued before midnight on 3 January 2008 to
interrupt prescription for detention up to 4 January 2005. The
plaintiff’s claim
for unlawful detention from 5 to 12 January
2005 has not prescribed.
[91]
The defendants special claim is upheld with regards to the
plaintiff’s unlawful detention
on 3 and 4 January 2005 only.
Compliance
with s 3 of the Institution of Legal Proceedings
[92]
The s 3 notice was served on 12 July 2005.
[93]
The plaintiff is required to serve the s 3 notice within 6 months
from the date on which the
debt became due.
[94]
The s 3 notice was not served within 6 months from the date when the
debt for unlawful arrest
became due.
[95]
The s 3 notice was also not served within 6 months of the plaintiff’s
detention from 3
January 2005 to 12 January 2005.
[96]
The plaintiff also failed to apply for condonation in terms of s 3(4)
of the Institution of Legal
Proceedings Act in terms of the direction
issued by Daffue J on 20 May 2019 the during the Uniform rule 37(8)
pre-trial proceedings.
Insofar as a further opportunity is granted to
the plaintiff to apply for condonation in terms of s 3(4) of the
Institution of
Legal Proceedings Act, in the order below,
the
plaintiff’s application must also include an application for
condonation for not complying with the directive issued by
Daffue J
during the pre-trial hearing on 20 May 2019.
[97]
The s 3 notice was served before the debt with regards to Claim C for
malicious prosecution became
due, and was thus given within the
prescribed 6-month period as far as this claim is concerned.
Reserved
costs
[98]
Bearing in mind that the Court issued a directive that the plaintiff
applies for condonation
before or on 17 June 2019, which the
plaintiff failed to do, and the matter was thereafter certified trial
ready, it is not clear
on what grounds the first defendant could
reasonably have laboured under an impression that the trial would not
proceed. The first
defendant’s special plea regarding
noncompliance with s 3 of the Institution of Legal Proceedings Act
was alive. The postponement
was sought because the first defendant
was not ready to argue the special pleas. In my view the first
defendant should have been
ready to proceed. It follows that the
first defendant is liable for the plaintiff’s wasted costs
occasioned by the postponement
of the matter on 26 April 2022.
Order
[99]
In the premises I make the following order:
1.
The first and second defendant’s
special plea of prescription to Claim A in the particulars of claim
is upheld.
2.
The first and second defendant’s
special plea of prescription to Claim B in the particulars of claim
is upheld with regards
to the plaintiff’s detention on 3 and 4
January 2005.
3.
The first defendant’s special plea
regarding the plaintiff’s non-compliance with s 3 of the
Institution of Legal Proceedings
against Certain Organs of State Act
40 of 2002 is upheld.
4.
The adjudication of Claim B, regarding
the part of claim for unlawful detention that has not prescribed, and
Claim D of the Plaintiff’s
particulars of claim are suspended
pending an application for condonation in terms of s 3(4) of the
Institution of Legal Proceedings
against Certain Organs of State Act
40 of 2002 which application must be served on the first defendant
within 30 days from date
of this order. The plaintiff must also seek
condonation in the aforesaid condonation application for the
plaintiff’s failure
to comply with the directive, issued by
Daffue J during the pre-trial hearing on 20 May 2019, that the
plaintiff applies for condonation
in terms of s 3(4) of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 before or on 17 June
2019.
5.
If the plaintiff fails to comply with
the order in para 4 above, Claim B and Claim D of the particulars of
claim must be deemed
to be dismissed with costs.
6.
The first defendant shall pay the wasted
costs occasioned by the postponement of the trial on 26 April 2022.
7.
The plaintiff shall pay the costs of the
suit pertaining to the first and second special plea, except the
reserved costs referred
to in paragraph 6 above.
N.
SNELLENBURG, AJ
APPEARANCES
:
On
behalf of the plaintiff:
Adv. SE Motloung
Instructed
by: DS
Qwelane
Qwelane
Theron & Van Niekerk
Bloemfontein
On
behalf of the defendant: Adv.
TL Manye
Instructed
by: McGentle
Tlale
State
Attorney
Bloemfontein
[1]
2007
(2) SA 347
(SCA) at para 25.
[2]
True
Motives 84 (Pty) Ltd v Mahdi and Another
,
2009 (4) SA 153
(SCA) ([2009] ZASCA 4) at para 100;
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA) ([2009]
4 All SA 146
;
[2009] 8 BLLR 721
at paras
6-7.
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison
and Another
2011
(4) SA 42
(CC)
(2011 (2) BCLR 121
;
[2010] ZACC 19)
para 28; and
Bwanya
v The Master of The High Court and Others
2022
(3) SA 250
(CC) para 156.
[3]
2018
(5) SA 22
(CC)
(2017 (11) BCLR 1443
;
[2017] ZACC 33)
at 76-77.
[4]
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
(2009 (1) BCLR 1
;
[2009] 1 BLLR 1
; (2008) 29
ILJ 2461;
[2008] ZACC 15)
at paras 67-68.
[5]
2014
(4) SA 614
(SCA) ([2014] ZASCA 88) paras 13-15.
[6]
2007
(5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5).
[7]
1997
(1) SA 124
(CC)
(1996 (12) BCLR 1559
;
[1996] ZACC 20)
at para 9.
[8]
Mabaso
v National Commissioner of Police and Another
2020
(2) SA 375
(SCA) para 13 (
Mabaso
)
with reference to
Mogopodi
v Member Executive Council, Free State
[2008] ZAFSHC 38
at para 7.
[9]
Para
12 above.
[10]
Mabaso
above
n8.
[11]
Ibid
at
para
37.
[12]
Mtokonya
above
n3.
[13]
Mtokonya
above para 63.
[14]
Mtokonya
above para 50 approving
Claasen
v Bester
2012
(2) SA 404
(SCA) ([2011] ZASCA 197) para 15; Also see
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA);
Drake
Flemmer & Orsmond Inc v Gajjar NO
2018
(3) SA 353 (SCA).
[15]
Gericke
v Sack
1978
(1) SA 821
(A) at 826B – 828C;
Yarona
Healthcare Network (Pty) Ltd v Medshield Medical Scheme
2018
(1) SA 513
(SCA) para 61.
[16]
2019
(5) SA 51
(SCA) at para 18.
[17]
Cook
above n 16
at
para 19.
[18]
Para
11 above.
[19]
Ibid.
[20]
1971
(1) SA 371
(E).
[21]
1986
(3) SA 568
(A) at 589E – F.
[22]
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) ([1993]
2 All SA 232
;
[1993] ZASCA 40)
154J
et
seq
.
[23]
2011
(5) SA 367 (SCA) (2011 (1) SACR 315; [2011] 2 All SA 157; [2010]
ZASCA 141).
[24]
2021
(4) SA 585
(CC)
(2020 (1) SACR 1
;
2019 (12) BCLR 1425
;
[2019] ZACC
32).
Also see
Mahlangu
and Another v Minister of Police
(CCT
88/20)
[2021] ZACC 10
;
2021 (7) BCLR 698
(CC);
2021 (2) SACR 595
(CC).
[25]
Mahlangu
n24
above
.
[26]
Mahlangu
above
n24 at para 25.
[27]
Mahlangu
above at para 32.
[28]
Compare
for example
R
v Moloy
1953 (3) SA 659
(T) at 662E.
[29]
Mofokeng
and
Others v The Minister of Police and Another
(3953/2019)
[2022] ZAFSHC 193
(24 August 2022) applying
Isaacs
v Minister van Wet en Orde
1996 (1) SACR 314
(A) at 323H-J.
[30]
Minister
of Police v Lebelo
2022 (2) SACR 201
(GP) [
Lebelo
].
[31]
Brandon
v Minister of Law and Order and Another
1997 (3) SA 68
(C): dictum at 78F – I/J;
Minister
of Police v Lebelo
supra at para 65.
[32]
Lebelo
n30
above at paras 69-70.
[33]
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) ([1993]
2 All SA 232
;
[1993] ZASCA 40)
154-155
at 154.
[34]
For
instance,
Moloi
v Minister of Safety and Security and Others
(3861/2013)
[2014] ZAFSHC 76
(12 June 2014);
Mofokeng
above
n29.
[35]
Lebelo
above n30
at
para 111.
[36]
2019
(2) SA 281 (WCC).
[37]
Para
11 above.
[38]
Ibid.
[39]
(42774/2016)
(2018) ZAGPPHC (18 June 2018).
[40]
Para
11 above.
[41]
Ibid.
[42]
Para
45 above, n20.
[43]
Para
11 above.
[44]
(19477/2018)
(2015) ZAGPJHC 42 (27 February 2015)
[45]
Lawrence
Nyiko Nkwinika v Detective Malapane and Another
above at para 8.
[46]
Mtokonya
n3.
[47]
2002
(5) SA 668 (SCA).
[48]
Lombo
above n47 at para 20.
[49]
Yekiso
above n36.
[50]
Unilever
n1 above.
[51]
Unilever
above n1 at para 17
et
seq
.
[52]
Mofokeng
above n29 at para 52.
[53]
Thompson
para 45 above (n20).
[54]
2021
(6) SA 345 (SCA).
[55]
Minister
of Justice and Constitutional Development v Moleko
[2008] 3 All SA 47
(SCA) ([2008] ZASCA 43) para 8.
[56]
Els
v Minister of Law and Order and Others
1993
(1) SA 12
(CC) at 15F.
[57]
2006
(4) SA 309
(CC)
(2006 (5) BCLR 604
;
[2006] ZACC 3
para 25.
[58]
E
Cameron 'Time' in Joubert (ed) The Law of South Africa vol 27 (1st
reissue) in para 433 at 371.
[59]
A
long line of case law has settled the issue. In Joubert v Enslin
1910 AD 6
at 25 - 6 the Appellate Division, expressly approving Cock
v Cape of Good Hope Marine Assurance Co
(1858) 3 Searle 114
, laid
down the general rule for computation: Where the period in question
is expressed in terms of weeks, months or years, the
period will
expire at the end of the day preceding the corresponding calendar
day. In Du Plessis v United African Furnishing
Co
1921 OPD 156
a
defendant who on 14 May filed an application to rescind a default
judgment of which he had knowledge on 14 April was held to
have
missed the one-month deadline. Du Plessis was accepted as correct
for some 20 years and, in an exhaustive consideration
of the
authorities and case law in Nair v Naicker
1942 NPD 3
, another
untimeous application to set aside a default judgment, Broome J was
not persuaded to ignore its authority. See also
Minister of Police v
Subbulutchmi
1980 (4) SA 768
(A) at 771H - 772E and cases cited
therein; Cameron above n 7 in para 431.
[60]
Ex
Parte Minister of Social Development
above at para 24.
[61]
De
Klerk, para 50 (n24). Also see
Mahlangu
para 51 above (n24) above.