Summary of Judgment

Introduction

This judgment concerns an application for leave to appeal to the Supreme Court of Appeal. The application was brought in the High Court of South Africa, Gauteng Division, Pretoria.

The applicants were the Minister of Police (first applicant) and the National Director of Public Prosecutions (second applicant). The respondent was Thamsanqa Ronny Miya.

The procedural context was that, on 4 August 2022, the court had delivered a judgment and order in which the first applicant’s special plea was dismissed. The present judgment (delivered on 11 November 2022) addresses whether leave to appeal should be granted against that earlier order.

The general subject-matter of the underlying dispute (as framed by the special plea) concerned the validity and effect of service of summons in litigation against an organ of state, specifically whether service on the State Attorney only, without service on the Minister of Police, was effective; whether the omission rendered the summons void; and, in the alternative, whether the claim had prescribed.

Material Facts

The material facts, as they emerged from the judgment on leave to appeal, centred on the manner of service and the subsequent conduct of the litigation.

It was common cause (or treated as effectively established for purposes of the leave application) that the respondent’s summons against the first applicant was served on the State Attorney only, and not served on the Minister of Police.

Notwithstanding the absence of service on the Minister, the applicants nonetheless entered an appearance to defend through the State Attorney, filed the relevant processes, and the matter progressed procedurally to the point where the applicants contended they were ready for trial. The applicants’ case on leave to appeal proceeded on the basis that, despite this participation, the initial service defect was legally decisive.

The special plea raised two alternatives: first, that the omission to serve the Minister rendered the summons void (or otherwise ineffective as service on the first applicant); alternatively, that the respondent’s claim against the first applicant had prescribed, pleaded as having occurred “on or about 20 December 2020”.

In relation to the prescription issue, the court recorded that the court a quo had already taken the view that, when the applicants filed their notice of intention to defend in July 2019 through the State Attorney, it could be accepted that the first applicant was aware of the summons. On that footing, the judge considering leave to appeal expressed the view that prescription could not arise.

Legal Issues

The central legal question in this judgment was whether the applicants satisfied the statutory threshold for leave to appeal, namely whether the contemplated appeal would have a reasonable prospect of success, and whether the matter warranted attention by the Supreme Court of Appeal.

That enquiry depended on whether another court could reasonably reach different conclusions on the legal questions raised by the dismissed special plea. Those underlying questions were primarily questions of law and statutory interpretation, together with the application of those legal rules to the procedural facts of service and interruption of prescription.

More specifically, the applicants’ challenge focused on the court a quo’s purposive interpretation of the statutory provisions regulating service and related consequences, including section 2 of the State Liability Act, section 5(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and section 15(1) of the Prescription Act 68 of 1969. The applicants contended that these provisions were peremptory and required strict compliance.

A further issue raised by the first applicant was whether the court a quo failed to determine the alternative relief in the special plea concerning prescription, and whether that omission could prejudice the first applicant by potentially rendering the issue res judicata in future.

Court’s Reasoning

The court approached the matter through the statutory test for leave to appeal, recording that leave may be granted only where the judge is of the opinion that the appeal would have a reasonable prospect of success, as contemplated in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013.

In addressing the substance, the court noted that the application for leave to appeal was “mainly” directed at the court a quo’s purposive approach to interpreting the relevant provisions of the State Liability Act, the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and the Prescription Act 68 of 1969. The applicants’ complaint was that the legislative provisions were peremptory and thus intended to be complied with strictly, with the result that service on the State Attorney alone could not constitute proper service on the Minister.

The court recorded the applicants’ submission that, even though the first applicant became aware of the summons and defended the matter, the failure to serve the Minister meant the summons was void. The court also recorded the attempt to distinguish Minister of Police and Others v Samuel Molokwane (730/2021) [2022] ZASCA 111, on the basis that the debtor in that matter had been served whereas, on the applicants’ version, the Minister (as debtor) was not served here. It further noted the reliance on Rauwane v MEC for Health, Gauteng Provincial Government (19009/14) [2018] ZAGPJHC 518 as persuasive authority, including the statement attributed to Mahalelo J about the purpose of section 2(2) of the State Liability Act being to ensure the State Attorney obtains notice or is informed of proceedings against an organ of state.

On the applicants’ argument that there were compelling circumstances and that the matter raised an important question of law and public importance, the court accepted the significance of the interpretive issues for organs of state and stated that, while the matter was not complex, it raised a question of law of considerable importance beyond the first applicant.

Although the court stated it did not believe the court a quo had been wrong in adopting the purposive interpretive approach, it nonetheless concluded that the issues raised were such that another court was likely to reach different conclusions on the interpretation of the relevant statutory provisions. On that basis, the court held that the contemplated appeal had reasonable prospects of success, and that the matter should be referred to the Supreme Court of Appeal.

On the specific complaint that the court a quo failed to deal with the alternative prescription prayer, the judge considering leave to appeal expressed the view that, given the finding that the applicants had filed a notice of intention to defend in July 2019 through the State Attorney and thus were aware of the summons, the issue of prescription could not arise on that approach.

Outcome and Relief

The court granted the application for leave to appeal.

Leave to appeal was granted to the Supreme Court of Appeal against the judgment and order delivered on 4 August 2022 in which the first applicant’s special plea had been dismissed.

The costs of the application for leave to appeal were ordered to be costs in the appeal.

Cases Cited

Minister of Police and Others v Samuel Molokwane (730/2021) [2022] ZASCA 111.

Rauwane v MEC for Health, Gauteng Provincial Government (19009/14) [2018] ZAGPJHC 518.

Legislation Cited

State Liability Act (section 2, and reference to section 2(2)).

Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (section 5(1)(a)).

Prescription Act 68 of 1969 (section 15(1)).

Superior Courts Act 10 of 2013 (section 17(1)(a)(i), and reference to section 17(1)(a)(ii)).

Rules of Court Cited

No rules of court were cited in the text of the judgment.

Held

The court held that the statutory threshold for leave to appeal was satisfied because there were reasonable prospects that another court could reach different conclusions from those reached by the court a quo on the interpretation of the relevant provisions of the State Liability Act, the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and the Prescription Act 68 of 1969, particularly as they relate to service of process and interruption of prescription.

It further held that, although the matter was not complex, the interpretive question was of considerable importance not only to the first applicant but also to other organs of state, justifying referral to the Supreme Court of Appeal.

In relation to the alternative prescription contention, the court expressed the view that, because the applicants had entered an appearance to defend in July 2019 via the State Attorney and could be taken to have been aware of the summons, the issue of prescription could not arise on that approach.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal may be granted only where the court is satisfied that the appeal would have a reasonable prospect of success, as provided for in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013.

It also reflected the principle that leave to appeal may be justified where the proposed appeal raises an important question of law of broader significance, including where statutory interpretation affecting organs of state warrants clarification by the Supreme Court of Appeal, and where another court may reasonably reach a different interpretive conclusion from the court a quo on the relevant statutory scheme.