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[2021] ZAGPPHC 82
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Kontsiwe v Minister of Police (73161/16) [2021] ZAGPPHC 82 (9 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
9
February 2021
Case
No:73161/16
In
the matter between:
KONTSIWE
XOLILE
Plaintiff
and
MINISTER
OF
POLICE
Defendant
JUDGMENT
SK
Hassim AJ
Introduction
[1]
On
4 August 2016,
[1]
the plaintiff
(the applicant in this application) instituted proceedings against
the defendant (the respondent in this application)
for compensation
for unlawful arrest and detention, assault, and malicious
prosecution. (It is convenient to refer to the
parties as in
the action).
[2]
The
summons was served by the Sheriff on the defendant on 29 September
2016. The imprint of a rubber stamp bearing the words
“Ministry
of Police” and date “16 September 2016” appears on
the face of the summons. This suggests
that the summons was
delivered prior to service by the Sheriff. Nothing however
turns on this.
[3]
Even
though each of the claims constitutes a separate cause of action,
these are not pleaded as such in the particulars of claim.
Notwithstanding this, on a careful reading of the particulars of
claim, it is evident that the plaintiff relies on three separate
causes of action.
[4]
On
14 November 2017, the defendant delivered a plea embodying the
undermentioned two special pleas, both confined to the plaintiff’s
claim for unlawful arrest and detention.
(i)
the
plaintiff’s claim arising out of his unlawful arrest and
detention has prescribed.
(ii)
the
notice contemplated in section 3(2) of the Institution of Legal
Proceedings Against Certain Organs of State Act, Act No 4 of
2002
(“
the
Act
”)
had not been served on the defendant timeously. This notice is
henceforth referred to as “
the
statutory notice
”.
[5]
On
30 August 2019, the plaintiff delivered an application in terms of
section 3(4) of the Act to condone the failure to serve the
requisite
notice timeously (“
the
condonation application”)
.
In response, the defendant delivered a notice in terms of rule
6(5)(d)(iii) of the Uniform Rules of Court.
The
factual matrix
[6]
On
8 August 2013, the plaintiff was shot by members of the South African
Police Service (“
SAPS
”)
and thereafter arrested and detained for seven (7) days. On 14
August 2013, the plaintiff appeared in court on a
charge of attempted
murder. On the following day, he was released from detention.
As appears hereunder the plaintiff
was not prosecuted for the alleged
crime. Hence the claim for compensation for malicious
prosecution.
[7]
On
8 September 2015
[2]
, being a
date more than two years after the assault and the arrest and
detention, the notice contemplated in section 3(1) of the
Act (i.e.,
the statutory notice) was served on the defendant.
[8]
The
defendant was notified that the plaintiff intended instituting legal
proceedings for the payment of the sum of R2 million which
was made
up of compensation in the amount of R1 million for pain and suffering
and R1 million for unlawful arrest. While
reference is made to
the prosecution being malicious, no mention is made of an intended
claim for compensation for malicious prosecution.
[9]
The
summons in the action was issued on 4 August 2016 but was served by
the Sheriff almost a month later, namely on 29 September
2016.
On 14 November 2017, the defendant filed a plea, embodying two
special pleas. The one is that the plaintiff’s
claims for
unlawful arrest and detention had prescribed in terms of the
Prescription Act, Act No 68 of 1969 (“
the
Prescription Act
”)
and the other is that the plaintiff had failed to serve the statutory
notice timeously.
The
applicable provisions of the Act
[10]
In
terms of Section 3(1) of the Act a creditor who intends instituting
proceedings against an organ of state must within six months
from the
date on which the debt becomes due, notify the organ of state of its
intention to do so.
[11]
Section
3(4)(b) of the Act confers upon a court the discretion to condone the
failure to notify the organ of state as required by
section 3(1).
However, the discretion exists under three circumstances only:
(i)
the
debt has not been extinguished by prescription;
(ii)
good
cause exists for the creditor’s failure to notify the organ of
state (or to timeously notify it); and
(iii)
the
organ of state is not unreasonably prejudiced by the creditor’s
failure.
[12]
While
a discretion is conferred on the court to condone the failure to
notify the organ of state as required by section 3 (1), the
discretion is removed if the debt has been extinguished by
prescription.
[3]
The
claim for compensation for unlawful arrest and detention.
[13]
The
first question must be whether the plaintiff’s claim for
compensation flowing from the assault and his unlawful arrest
and
detention has prescribed. In order to determine this, the date
when the debt became due to the plaintiff must be identified.
[14]
Van
Heerden JA interrogated this question in
Truter
and Another v Deysel
[4]
where the court was confronted with the question when the “
debt
is due
”
in the context of the Prescription Act
[5]
and held as follows:
“
For the
purposes of the Act, the term 'debt due' means a debt, including a
delictual debt, which is owing and payable. A debt
is due in
this sense when the creditor acquires a complete cause of action for
the recovery of the debt, that is, when the entire
set of facts which
the creditor must prove in order to succeed with his or her claim
against the debtor is in place or, in other
words, when everything
has happened which would entitle the creditor to institute action and
to pursue his or her claim
.
”
[6]
[15]
This
dictum is applicable when identifying the date on which “
the
debt became due”
for
purposes of the Act.
[16]
The
plaintiff acquired a complete cause of action for compensation for
unlawful assault and arrest on 8 August 2013 and for unlawful
detention on each day of his detention, the last day being 15 August
2013.
[7]
These claims
would have been extinguished by prescription between 7 August 2016
and 14 August 2016.
[17]
Mr
Gwebu, who appeared on behalf of the plaintiff, submitted that the
claim had not prescribed because the summons had been issued
prior to
the expiration of three years from the date on which the cause of
action arose.
[18]
In
terms of section 15(1) of the Prescription Act, prescription is
interrupted when a summons is served; not when it is issued by
the
Registrar. The plaintiff’s claims for assault and
unlawful arrest and detention had prescribed by the time the
summons
was served on the defendant by the Sheriff on 29 September 2016.
Consequently,
section 3(4)(b)(i) of the Act precludes me from condoning the
plaintiff’s failure to
serve
(or rather timeously serve) the statutory notice in respect of the
claims arising from the assault and the unlawful arrest
and
detention.
The
claim for compensation for malicious prosecution.
(i)
When
were the proceedings terminated in the plaintiff’s favour?
[19]
The
papers are not clear when the criminal proceedings were terminated in
the plaintiff’s favour. I illustrate:
(a)
In
paragraph 10, of the particulars of claim the plaintiff alleges that
he was prosecuted for attempted murder and acquitted on
15 August
2013.
(b)
In
paragraph 12, of the founding affidavit in the condonation
application the plaintiff alleges that the criminal proceedings were
terminated in his favour on 24 April 2018. In paragraph 26 he
alleges that that a
nolle
prosequi
certificate was issued on 24 August 2018. However later in the
paragraph he alleges that the certificate was issued on 24
April
2018. In support of the latter date the plaintiff refers to the
cover of the case docket annexures “XK 3(a) and
“XK 3(b)
the founding affidavit. Both are seemingly a copy of the face
of the case docket. On annexure XK 3(a)
the words “
Nolle
Prosequi
”
appear in the space allowed for recording the “
finding/result
of the
trial”.
The words that follow on these are illegible. The signature of
apparently the prosecutor is appended.
Even though a space
appears for the insertion of a date, none has been inserted.
The date “2018.04:24” is however
inserted in manuscript
in the left side margin of the page. There is no indication who
inserted this date. These particulars
also appear on Annexure
“XK 3(b) save that the words “
Not
enrolled
”
precede the words “
Nolle
Prosequi
”.
The
other difference between the two annexures is that the date
“
15/12/15
” is annotated as the date of the last
court appearance on “XK 3(a)” while on “XK 3(b)”
it is annotated
as “
30/8/2017
”.
(c)
In
paragraph 33, of the founding affidavit, the plaintiff suggests that
the criminal proceedings were terminated in his favour on
25 April
2018. However, in paragraph 39 the date is alleged to be 24
April 2018.
(d)
According
to paragraph 5 of the heads of argument delivered on behalf of the
plaintiff, the charges against the plaintiff were withdrawn
on 25
April 2018.
[20]
Considering
that the criminal proceedings were enrolled for 24 June 2015 as well
as 15 December 2015 it is implausible that the
criminal proceedings
terminated in the plaintiff’s favour on 15 August 2013; it is
more plausible that the proceedings terminated
on 24 April 2018 being
the date annotated in the left-hand margin of the face of the case
docket. The statutory notice had
to therefore be served within
six months of 24 April 2018.
(ii)
Was
the defendant notified of the plaintiff’s intention to
institute proceedings for compensation for malicious prosecution?
[21]
It
is evident from the founding affidavit that the plaintiff’s
case is that the statutory notice served on 8 September 2015
served
as notice of his intention to institute proceedings for compensation
for not only assault and unlawful arrest and detention,
but also for
malicious prosecution.
[22]
Mr
Gwebe argued that the statutory notice served on 8 September 2015
contained all the allegations necessary to support a claim
for
malicious prosecution and therefore a notice had been served on the
defendant in respect of this claim. His argument
was therefore
that this is not a case where the plaintiff had failed to give
notice. I disagree.
[23]
The
debt arising out of the malicious prosecution could not have fallen
due before the criminal proceedings terminated in the plaintiff’s
favour on or about 24 April 2018. Before this date one crucial
element of a claim for compensation for malicious prosecution
was
lacking; the proceedings had not yet been terminated in the
plaintiff’s favour.
[8]
There was accordingly no debt due when the statutory notice was
served on 8 September 2015.
[24]
Additionally,
the statutory notice served on 8
September
2015 does not contain all the facts giving rise to the debt.
(The proceedings had not yet been terminated in the
plaintiff’s
favour.) Nor does it inform the defendant that the plaintiff intends
instituting legal proceedings for compensation
for malicious
prosecution. There are only two statements in the statutory
notice regarding the plaintiff’s malicious
prosecution:
“
3.5
Following the unlawful and wrongful arrest, the SAPS instigated that
[sic] our client be prosecuted
by placing false information in the
docket namely that our client has committed a crime of attempted
murder.
3.6
During an internal investigation by the South African Police Service,
it became apparent
that the SAPS instituted the criminal proceedings
maliciously
.
”
[25]
I
am unable to find that the statutory notice served on 8 September
2015 constitutes a notification to the defendant that the plaintiff
intends instituting legal proceedings for compensation for malicious
prosecution. Any doubt which exists is put to rest by
the
following two statements in the notice.
“
2.
Our client has instructed us to give you notice… of his
intention to institute and
prosecute a civil action against the
Minister of South African Police Service [sic], for the payment of R
2 million (two million
rand) for damages suffered as a result of
unlawful arrest, assault and detention[sic].
…
4.
… Our client has suffered damages for pain and suffering, due
to unlawful
and wrongful arrest as well as injuries sustained from
gun wounds in the sum of R 2 000 000.00 (Two million
rands).
PAIN AND SUFFERING
R1 000 000.00
UNLAWFUL ARREST
R1 000 000.00”
[26]
I
accordingly find that the plaintiff failed to notify the defendant of
its intention to institute proceedings for compensation
for malicious
prosecution. I have the discretion in terms of section 3(4)(b)
of the Act to condone this failure provided
that I am satisfied (i)
the claim for malicious prosecution has not prescribed; (ii) good
cause exists for the plaintiff’s
failure; and (iii) the
defendant is not unreasonably prejudiced by the failure.
(iii)
Has
the plaintiff’s claim for compensation for malicious
prosecution prescribed?
[27]
I
have identified 24 April 2018 as being the more plausible date when
the proceedings were terminated in the plaintiff’s favour.
The plaintiff’s claim for compensation for malicious
prosecution would thus prescribe on 23 April 2021.
[28]
The
averments in the particulars of claim sustain a claim for
compensation for malicious prosecution. However, the
proceedings
were not terminated in the plaintiff’s favour until
24 April 2018. This being so the cause of action for malicious
prosecution had not arisen when the summons was issued or served; it
arose approximately 20 months thereafter. The parties
were not
called upon to address me on whether the summons issued on 4 August
2016 interrupted the plaintiff’s claim for compensation
for
malicious prosecution or not. I therefore refrain from
expressing myself on the issue save for stating that if the claim
had
not been interrupted by that summons then a fresh summons will have
to be issued prior to the claim prescribing on 23 April
2021.
[29]
Having
found that the claim has not prescribed, I turn to consider two
issues. First whether good cause exists for the plaintiff’s
failure to deliver the statutory notice. Second, whether the
defendant has been unreasonably prejudiced by the plaintiff’s
failure to serve the statutory notice. The latter issue can be
disposed of immediately.
(iv)
Is
the
defendant
unreasonably
prejudiced by the plaintiff’s failure to serve the statutory
notice?
[30]
The
plaintiff avers in the founding affidavit that the defendant will not
be “unduly” prejudiced if the failure to serve
the
statutory notice is condoned. The defendant has elected not to
deliver an answering affidavit. The averment is
therefore
unchallenged. In the circumstances I am entitled to accept, as
I do, that the defendant has not been unreasonably
prejudiced by the
plaintiff’s failure to serve the statutory notice.
(v)
Good
cause
[31]
This
leaves the question whether the plaintiff has demonstrated good cause
for the failure to serve the statutory notice.
Unless I am
satisfied that good cause exists for the failure to serve the
statutory notice, I do not have the discretion to grant
condonation.
[9]
[32]
Hefer
JA in
Madinda
v Minister of Safety and Security
[10]
remarked as follows on the element of good cause:
“‘
Good
cause looks at all those
factors which bear on the fairness of granting the relief as between
the parties and as affecting the proper
administration of justice.
In any given factual complex it may be that only some of many such
possible factors become relevant.
These may include prospects
of success in the proposed action, the reasons for the delay, the
sufficiency of the explanation offered,
the bona fides of the
applicant, and any contribution by other persons or parties to the
delay and the applicant’s responsibility
therefor
.”
[33]
In
the final analysis the question whether good cause has been shown
resolves into a balancing of the relevant factors and interests
of
the parties. The reason for the failure to notify an organ of
state of intended legal proceedings is one of the factors
that a
court may take into consideration. Another is the prospects of
success in the intended action.
[34]
Considering
the argument advanced on behalf of the plaintiff that the notice
served on 8 September 2015 constituted the statutory
notice for the
claim for malicious prosecution, it comes as no surprise that no
explanation is given in the founding affidavit
why the statutory
notice for the debt arising from the plaintiff’s malicious
prosecution was not served on the defendant.
[35]
The
plaintiff’s attorney was of the view that the statutory notice
served on 8 September 2015 was sufficient notification
of intended
proceedings for the claim arising out of the plaintiff’s
malicious prosecution. The plaintiff had entrusted
the
litigation to his attorney, and he had no reason to doubt the
correctness of his attorney’s view of the legal position.
Nor was there any reason for him to believe that his attorney would
not take all the steps required by law to give effect to his
mandate
to his attorney to recover compensation for his malicious
prosecution. It is not in the interests of justice
[11]
for the plaintiff to be penalised for his attorney’s
understanding (or misunderstanding) of the law, which would be the
result if I refuse the condonation application on the basis that an
explanation is wanting for the failure to serve the statutory
notice.
[36]
Moving
to the plaintiff’s prospects of success in the action for
compensation for malicious prosecution. The defendant
does not
contend that the plaintiff’s claim for malicious prosecution is
without merit. If that were the case, he would
have said so.
The defendant’s plea on the merits of the plaintiff’s
claim for compensation for malicious prosecution
is a bare denial.
It
is evident from the copy of the face of the case docket that the
prosecutor refused to prosecute the plaintiff. There is
in my
view a case for the defendant to answer.
[37]
Furthermore,
the
defendant does not contend that the plaintiff has not acted
reasonably or that he is not
bona
fide
in enforcing a legitimate claim.
[12]
[38]
The
object of prior notification is to afford an organ of state the
opportunity to investigate claims against it prior to it becoming
embroiled in litigation.
[13]
To this end section 3(2)(b)(i) of the Act requires the creditor to
set out the facts giving rise to the debt.
[39]
Notwithstanding
my finding that the plaintiff failed to notify the defendant of its
intention to institute proceedings for compensation
for malicious
prosecution, I cannot ignore that the letter served on the defendant
on 8 September 2015 alerted the defendant to
(i) the plaintiff’s
grievance that the SAPS had instigated his prosecution by “
placing
false information in the docket”
to
support a charge of attempted murder; and (ii) an internal
investigation had been conducted by the SAPS and it was found that
the criminal proceedings had been instituted maliciously.
[40]
In
this case the defendant was informed of the facts giving rise to the
claims, except for the termination of criminal proceedings
against
the plaintiff. The defendant not having delivered an answering
affidavit can be taken to admit that the SAPS conducted
an internal
investigation. The significance of this is twofold. First,
there has already been an investigation and
second, after the
investigation was completed an authorised person within the SAPS
formed the view that the criminal proceedings
had been instituted
maliciously.
[41]
The
factual background to the plaintiff’s claim was therefore
brought to the defendant’s attention as far back as 8
September
2015. In addition, an internal investigation had been conducted
and concluded.
[42]
In
the present case the defendant cannot complain that he was not
afforded an opportunity to gather and preserve information and
evidence.
[14]
In this
case the object of prior notification has not been thwarted.
[43]
I
am satisfied, for purposes of section 3(4)(b)(ii) of the Act, that
good cause exists for the plaintiff’s failure to have
given the
statutory notice to the defendant insofar as his claim for
compensation arising out of his malicious prosecution is concerned.
[44]
The
plaintiff has however failed in his application to condone the
failure to
serve
the
statutory notice in respect of his claim for compensation for assault
and unlawful arrest and detention. Both parties
have therefore
been partially successful. In the circumstances it is fair that
no order should be made as to costs.
[45]
However,
considering (i) the inconsistencies on the date when the criminal
proceedings were terminated in the plaintiff’s
favour; (ii) the
ill-conceived argument that prescription is interrupted when a
summons is issued as well as the ill-conceived
argument that the
notice served on the defendant on 8 September 2015 (prior to the
cause of action for malicious prosecution arising)
constituted notice
in respect of the plaintiff’s claim for malicious prosecution,
I am of the view that it would be unjust
for the plaintiff to pay to
his attorney any costs associated with the condonation application.
[46]
In
the result I make the following order:
(a)
The
plaintiff’s failure to serve the notice contemplated in section
3(2)(a) of the Institution of Legal Proceedings Against
Certain
Organs of State Act, Act No. 40 of 2002 (“
the
Act
”)
in respect of his claim for compensation for malicious prosecution is
condoned.
(b)
The
plaintiff must serve the notice contemplated in section 3(2)(a) of
the Act in respect of his claim for compensation for malicious
prosecution within fifteen (15) days of this order.
(c)
The
plaintiff’s attorney may not charge fees for any work
associated with the condonation application.
S
K HASSIM AJ
Acting
Judge: Gauteng Division, Pretoria
(electronic
signature appended)
9
February
2021
This judgement was
prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to
the plaintiff’s
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines.
The date for hand-down is
deemed to be 9 February 2021.
Date
of hearing: 6 October 2020
Appearances:
For the plaintiff:
Mr Gwebu
For
the defendant: Adv
Sevenster
[1]
This
is the date on the rubber stamp imprint affixed by the Registrar on
the face of the summons.
[2]
The
letter is dated 7 September 2015.
[3]
Cf.
Minister of
Safety and Security v De Witt
2009(1)
SA 457 (SCA) at para [13].
[4]
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) para 16.
[5]
Section
12 (1) of the Prescription Act, (s 12) reads:
“
Subject
to the provisions of ss (2) and (3), prescription shall commence to
run as soon as the debt is due
”.
[6]
Para
16. See also
Makhwelo
v Minister of Safety and Security
2017 (1) SA 274 (GJ).
[7]
Cf.
Minister of Police
and Another v Yekiso
2019 (2) SA 281
(WCC) para [27].
[8]
Cf.
Thompson
v Minister of Police
1971
(1) SA 371
(E);
Els
v Minister of Law and Order
1993 (1) SA 12 (C).
[9]
Minister
of Safety and Security v De Witt
2009(1)
SA 457 (SCA) at para [13].
[10]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para
[10]
.
[11]
Minister
of Agriculture and Land Affairs v CJ Rance
2010
(4) SA 109
(SCA).
[12]
MEC
for Education, KwaZulu-Natal v Shange
2012(5) SA 313 (SCA) at para 19.
[13]
Mohlomi
v Minister of Defence
1997 (1) SA 124 (CC)
[14]
Cf.
Mabaso
v National Commissioner of Police and Another
2020 (2) SA 375
(SCA) para [49].