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[2022] ZAGPPHC 596
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Miya v Minister of Police and Another (29972/2019) [2022] ZAGPPHC 596 (4 August 2022)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case no: 29972/2019
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED:
YES
/NO
4
AUGUST 2022
In the matter between:
THAMSANQA RONNY
MIYA

Plaintiff
and
THE MINISTER OF
POLICE

1
st
Defendant
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS

2
nd
Defendant
JUDGMENT
Mazibuko
AJ
1.
The first defendant is raising a
special plea in that the plaintiff issued summons against the
first
defendant. The plaintiff did not serve that summons on it but served
same at the State Attorney’s office.
BACKGROUND
2.
In the main action, the plaintiff sued the defendants for unlawful
arrest and detention and
malicious prosecution. The cause of action
arose on 19 December 2017. Summons was issued against the first and
second defendants.
On 7 May 2019, the summons was served on the
office of the State Attorney, Pretoria. The last day to file a notice
of intention
to defend was 4 June 2019. None was filed, and the
plaintiff took no action in that regard.
3.
On 9 July 2019, the summons was served on the National Director of
Public Prosecutions (NDPP),
the second defendant. On 11 July 2019,
the state attorney placed itself as attorneys of record for the first
and second defendants
and, on behalf of both defendants, filed a
notice of intention to defend the plaintiff’s claim.
4.
On 9 February 2022, the defendants
filed
their notice of intention to amend their plea, raising a special plea
in that the plaintiff failed to serve the summons on
both defendants
but only served same at the office of the State Attorney. On 22
February 2022, the Defendants filed their amended
plea.
5.
On 3 August 2022, before the trial could commence, the first
defendant gave notice of its
intention to amend its plea. Mr Kwinda,
on behalf of the defendants, submitted that in February 2022, both
defendants raised a
special plea and filed their amended plea.
6.
However, on perusal of their file, he realized that the service of
summons was proper on
the second defendant. Therefore, the second
defendant was not pursuing the special plea, and only the first
defendant was raising
the special plea.
7.
On behalf of the first defendant, Mr Kwinda indicated the grounds
upon which the first defendant
relied and its cause of complaint. The
following submissions were made on behalf of the first defendant and
are contained in the
special plea:
7.1.   The
Plaintiff never served the summons on the first defendant, the
Minister of Police, as per the provisions of
section 2(1) of the
State Liability Act No 20 of 1957 (the SLA);
7.2.
Paragraph 7 of the special plea:
Section
5(1)(a) of the Institution of Legal Proceedings Against Certain
Organs Of State Act,
40 of 2002 (the Legal
Proceedings Act)
provides that any process by which legal
proceedings contemplated in section 3(1) of the Legal Proceedings Act
are instituted must
be served in accordance with provisions of
section 2 of the SLA;
7.3.
Paragraph 10 of the special plea:
on proper
construction and interpretation of section 2 of the SLA, it was
obligatory for the plaintiff to serve the combined summons
on both
the NDPP and Minister of Police’s Head
offices,
Pretoria, as well as on the State Attorney’s office, Pretoria,
within a period of five days after the service of
the combined
summons on the first defendant; and
7.4.
Paragraph 11 of the special plea: the provision above is peremptory
in its terms and that the combined summons
was not served on the
first defendant but only on the office of the State Attorney.
PARTIES’
SUBMISSIONS
8.
Both parties
referred
the court to the case of Molokwane
[1]
and section 39
[2]
of the
Constitution of the Republic of South Africa, 1996 (the
Constitution). The first defendant also relied on section 9
[3]
of the Constitution and submitted that the first defendant has the
right to raise the special plea.
9.
Mr Kwinda, on behalf of the first
defendant, submitted that as the peremptory provisions of the SLA
were not complied with, there
was no proper service of the combined
summons on the first defendant as required. Accordingly, all
proceedings after the service
of the combined summons on the state
attorney are deemed to be legally void. The plaintiff's action be
dismissed with costs. Alternatively,
an order be granted that his
claim against the first defendant has prescribed on or about 20
December 2020.
10.
It was submitted on behalf of the first defendant that Molokwane was
distinguishable from this case
since, in
Molokwane,
the
summons was served on the Minister of Police, the debtor and not on
the State Attorney, whereas, in
casu,
the debtor was not
served, which means the peremptory requirement was not met as per the
provisions of the Prescription Act read
with the SLA.
11.
The plaintiff contended the special plea. Mr Maphutha, on behalf of
the plaintiff, submitted that the
special plea was mechanical and
illogical as there was no doubt that the first defendant was aware of
the combined summons. It
had
participated
from the onset when it filed its intention to defend and
in
all the stages, including the pre-trial conferences.
There
was no prejudice suffered or
to be
suffered
by the first defendant as the first defendant is represented by the
state attorney and ready to proceed with the trial.
It was also
contended that the plaintiff’s claim against the first
defendant had not prescribed.
12.
It was
argued that
Molokwane
requires the courts to read and
interpret statutes
to promote the spirit,
purport, and objects of the Bill of Rights. The laws are not to
obstruct access to justice.
It was also
submitted that the court needed to adopt a purposive approach to
reading and interpreting the acts of parliament. In
that, the purpose
of service of summons is to inform the defendant about the claim
against them.
ISSUE
13.
Whether the service of summons issued against the first defendant,
the Minister of Police, upon the
State Attorney only, was proper and
effective service of summons on the first defendant. Whether the
omission to serve on the first
defendant rendered
the
plaintiff’s summons void.
LEGAL PRINCIPLES
14.
Rule 4(9)
[4]
provides, “
In
proceedings in which the State or an organ of state, a Minister, a
Deputy Minister, a Premier or a Member of an Executive Council
in
such person’s official capacity is the defendant or respondent,
the summons or notice instituting such proceedings shall
be served in
accordance with the provisions of any law regulating proceedings
against and service of documents upon the State or
organ of state, a
Minister, a Deputy Minister, a Premier or a Member of an Executive
Council”.
15.
Section 5(1)(a) of the Legal Proceedings Act, as amended, provides
that “
any process by which any legal proceedings
contemplated in section 3(1) are instituted must be served in the
manner prescribed by
the rules of the court in question for the
service of process”.
16.
Section 2 of the SLA reads, “
proceedings to be taken against
executive authority of department concerned:
(1) in any action or
other proceedings instituted against a department, the executive
authority of the department concerned must
be cited as a nominal
defendant or respondent”.
(2) the plaintiff or
applicant, as the case may be, or his or her legal representative
must
(a) After any court
process instituting proceedings and in which the executive authority
of a department is cited as nominal defendant
or respondent has been
issued, serve a copy of that process on the head of the department
concerned at the head office of the department;
and
(b) Within five days
after the service of the process contemplated in paragraph (a), serve
a copy of that process on the office
of the State Attorney operating
within the area of jurisdiction of the court from which the process
was issued”.
17.
Section 15(1) of the Prescription Act, 68 of 1969 (the
Prescription
Act) provides
that “
The running of prescription shall,
subject to the provisions of subsection (2), be interrupted by the
service on the debtor of any
process whereby the creditor claims
payment of the debtor”.
ANALYSIS
18.
The special plea, as raised in c
asu
, necessitates the
balancing of rights. On the one hand, the plaintiff’s rights in
holding the state liable for the alleged
infringement of rights. On
the other hand, the first defendant’s right to be served with
court process in terms of the legislation.
19.
In reading and interpreting the relevant prescripts and applying the
same to the facts in this matter,
I will look at the strict approach,
which I will refer to as the “general” approach and the
purposive approach.
The
general approach
20.
The mandatory thrust of
section 2
of the SLA was aimed at the
citation of the nominal defendant and service thereon. It did not
affect the status of the first defendant,
as a debtor as required by
section 15(1)
of the
Prescription Act.
21.
According
to the Prescription act, the summons
must be served on the debtor. In terms of the SLA, that is
peremptory. In this case, the first
defendant, the debtor was not
served with the summons.
22.
On the face of the combined summons in issue; the Plaintiff stated as
follows;
“
To
the Sheriff or His Deputy
Inform:
Minister of Police, the honourable General Bheki Cele, in his
official capacity as the executive head of the South African
police
service,
whose address for the
purpose of service of the process in these proceedings is that of the
office of the State Attorney, SALU building,
3[...] T[...] S[...]
street, Pretoria Gauteng province
,
(hereinafter called the first defendant)’.
(my
emphasis).
Inform: the National
Director of Public Prosecutions, Adv. Shamila Batohi, in her official
capacity, is an adult female person and
currently employed as the
national director of the public prosecution with business address,
VGM Building, 1[...] W[...] Avenue,
Weavind Park, Silverton, Gauteng
Province. (hereinafter referred to as the second defendant)”.
23.
Paragraph 2.1 of the particulars of claim reads as follows ‘
the
first defendant is the Minister of Police, General Bheki Cele, in his
official capacity as the executive head of the South African
police
service (SAPS),
with business address at 7
th
floor, Wachthuis Building, 2[...] P[...] street, Pretoria, Gauteng
Province
,
(my underlining)
whose address for
purpose of service of the process in these proceedings, are that of
the Office of the State Attorney, SALU building,
3[...] T[...] S[...]
street, Pretoria Gauteng province”.
24.
Paragraph 2.2 of the particulars of claim reads as follows “
the
second defendant is Adv. Shamila Batohi, in her official capacity, an
adult female person and currently employed as the national
director
of the public prosecution with business address, VGM Building, 1[...]
W[...] Avenue, Weavind Park, Silverton, Gauteng
Province, whose
address for purpose of service of the process in these proceedings,
are that of the Office of the State Attorney,
SALU building, 3[...]
T[...] S[...] street, Pretoria Gauteng province”.
25.
The summons was served on the second defendant at her business
address at VGM Building. It is unclear
why the same was not done for
the first defendant, significantly absent a prior arrangement with
the first defendant. In reading
the three statutes; the Legal
Proceedings Act, the SLA Act and the
Prescription Act, the
summons
was supposed to be served upon the first defendant at the business
address (
7
th
floor, Wachthuis Building,
2[...] P[...] Street, Pretoria, Gauteng Province),
as it appears
in paragraph 2.1 of the particulars of claim and within five days of
such service at the office of the State Attorney.
26.
The
Prescription Act is
clear in that the service
of summons must be on the debtor, in this case, the first defendant.
It is not either the debtor (the
first defendant) or the State
Attorney. In fact, the State Attorney is served within five days of
service on the debtor. In
Rauwane
[5]
,
Mahalelo J held that the purpose of
section 2(2)
of the SLA is to
ensure that the State Attorney obtains notice or is informed of all
the legal proceedings instituted against an
organ of state.
27.
Generally, the plaintiff cannot rely on the service effected on the
State Attorney as proper and effective
service for the purpose of the
SLA and the LPA. To this end, the plaintiff was non-compliant with
the provisions of
section 2
of the SLA read with the
Prescription
Act. However
, the inquiry does not end here.
Purposive approach
28.
I
n
the case of the
African
Christian Democratic Party
[6]
,
“
the
Constitutional Court held that the adoption of the purposive approach
in our law has rendered obsolete all the previous attempts
to
determine whether a statutory provision is directory or peremptory on
the basis of the wording and subject of the text of the
provision.
The question was thus ‘whether what the applicant did
constituted compliance with the statutory provisions viewed
in the
light of their purpose’. A narrowly textual and legalistic
approach is to be avoided”.
29.
In
Molokwane,
the court held that “
There is also the
injunction in s 39(2) of the Constitution, which enjoins courts, when
interpreting any legislation, to promote
the spirit, purport and
objects of the Bill of Rights. Thus, where a provision is reasonably
capable of two interpretations, the
one that better promotes the
spirit, purport and objects of the Bill of Rights should be adopted.1
The right implicated in this
case is that of access to courts,
enshrined in s 34 of the Constitution.2 Consistent with this
injunction, the interpretation of
s 2(2)
of the
State Liability Act
must
be one which promotes this right, by considering the underlying
purpose of the section, rather than merely its text. This purposive

approach is far more consistent with our constitutional values, than
reading the section narrowly and strictly, as preferred by
the
appellants”.
30.
When the State Attorney received the summons on 7 May 2019, it took
no action. The plaintiff also did
nothing. On 9 July 2019, the
summons was served on the NDPP at its business offices. On 11 July
2019, the State Attorney filed
a notice of intention to defend the
action not only for the NDPP but also for the first defendant, the
Minister of Police.
31.
In adopting the purposive approach and reading the Legal Proceedings
Act, the SLA and the
Prescription Act whilst
embracing the
Constitutional values, in my view, the question is, did the debtor
(the first defendant) know or become aware of
the summons? Was there
any prejudice suffered by the first defendant, and at what stage was
it material? It can be accepted that
when the first defendant filed
its notice of intention to defend the matter, it was aware of the
plaintiff’s claim and instructed
the State Attorney to protect
its interest and defend the plaintiff’s claim.
32.
In my view, when the first defendant filed court processes in
response to the summons served only at
the office of the State
Attorney, that step taken by the first defendant changes the
complexion of the argument about non-compliance
as the purpose of
making known the plaintiff’s claim to the first defendant was
then achieved.
33.
To the question of whether there was any prejudice? The first
defendant did not only know about the
summons but reacted to it by
filing relevant court processes and participating in pre-trial
conferences. When it was argued on
behalf of the first defendant, it
was not said that the first defendant suffered any prejudice due to
the non-compliance by the
plaintiff. Instead, it was submitted that
the first defendant readied itself as it had three witnesses from the
SAPS, three from
the Independent Police Investigative Directorate
(IPID) and two from the NDPP. They are ready to testify in the first
and second
defendants’ defence.
34.
It is not my finding that the State Attorney accepted the summons on
behalf of the first defendant nor
that the State Attorney replaced
the first defendant as a debtor. The first defendant remained a
debtor that was not served with
the court process but who ultimately
became aware of the summons (plaintiff’s claim) as it responded
to it.
35.
Further, I do not read the Molokwane Judgment to be saying the
litigant can either serve the “debtor”
or the State
Attorney. However, I, among others, read it in relation to the SLA
and the
Prescription Act concerning
the service of process to
interrupt prescription.
CONCLUSION
36.
I, therefore, hold the view that though the summons was not served on
the first defendant, the first
defendant became aware of the summons
and responded to it by filing relevant court processes in its
defence. The first defendant
also suffered no prejudice due to the
plaintiff's non-compliance of not serving the summons on it. Also,
the omission to serve
on the first defendant did not render
the
plaintiff’s summons void, as the first defendant became aware
of the summons and responded to it.
Consequently,
the special plea stands to be dismissed.
The
order;
37.
The special plea is dismissed.
38.
No order as to costs.
N.
Mazibuko
Acting
Judge of the High Court, Gauteng, Pretoria
Counsel
for the Plaintiff:
Mr RM
Maphutha
Instructed
by:
Makhafola
& Verster Incorporated, Pretoria
Counsel
for Respondents:
Mr TC
Kwinda
Instructed
by:
The
State Attorney, Pretoria
Date
of hearing:
3
August 2022
Judgment
delivered on:
4
August 2022
[1]
Minister
of Police and others v Samuel Molokwane (730/2021) (2022) ZASCA 111
[2]
(2)
When interpreting any legislation and when developing the common
law, or customary law, every court, tribunal or forum must
promote
the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights
does not deny the existence of any other rights or freedoms that are
recognized or conferred by common
law, customary law or legislation,
to the extent that they are consistent with the Bill.
[3]
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
[4]
Uniform
Rules of Court
[5]
Rauwane
v MEC for Health Gauteng Provincial Government (19009/14) (2018)
ZAGPJHC 518, para 10
[6]
African
Christian Democratic Party
6
(ACDP)
v
Electoral Commission and Others
[2006]
ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) para 25