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[2021] ZAGPPHC 475
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Makena v Minister of Police and Others (13823/19) [2021] ZAGPPHC 475 (23 July 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 13823/19
NOT
REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
REVUSED
23/07/2021
In the matter between:
SELLO
JONAS
MAKENA
Applicant
And
MINISTER
OF
POLICE
1
st
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Respondent
LT
COL SHIMI JOHANNES
MOJELA
3
rd
Respondent
LT
COL THABO JACOB PONI
SEREKEHO
4
th
Respondent
JUDGMENT
The judgment and order
are accordingly published and distributed electronically. The date
and time of hand is deemed to be 10:00
on 23 July 2021.
TEFFO
J
Introduction.
[1]
The
applicant, Mr Sello Jonas Makena, is seeking condonation for the late
filing of a notice of the intended legal proceedings to
be given to
an organ of state in terms of section 3(4) of the Institution of
Legal Proceedings Against Certain Organs of State
Act
[1]
(the “Act”).
[2]
The
respondents oppose the application.
[3]
The
respondent’s answering affidavit and the applicant’s
replying affidavit were not filed timeously. The late filing
thereof
was not opposed. I accordingly granted condonation for their late
filing.
[4]
The
applicant was arrested by members of the South African Police
Services (“SAPS”) on 12 July 2014. He was detained
at the
Pretoria West Police Cells. He first appeared in court on 14 July
2014 and was further detained until on 21 July 2014 when
he was
released on bail. He stood trial until on 14 May 2018 when he was
acquitted on all charges. Notices in terms of the Act
were served on
the first and second respondents on 23 October 2018. The applicant
thereafter issued summons on 28 February 2019
in terms of which he
claimed damages in a total amount of R 7 046 000.00 for unlawful
arrest and detention, malicious prosecution,
past loss of income,
loss of future employability, legal costs and general damages.
[5]
The
respondents filed a special plea and pleaded that the applicant did
not timeously give notice of his intention to institute
legal
proceedings against them as required in terms of the Act.
[6]
Various
letters were exchanged between the parties in which the applicant’s
attorneys requested the respondents to withdraw
their special plea on
the basis that according to the applicant the notices were timeously
served on the first and second respondents.
[7]
The
respondents did not respond to their correspondence. Eventually, the
applicant launched this application.
The
parties’ contentions.
[8]
The
respondents only oppose the application in relation to the claim for
unlawful arrest and detention. They contend in their answering
affidavit that the alleged claim originated on 12 July 2014 when the
applicant was arrested, at best on 21 July 2014 when the applicant
was released on bail, and prescribed on 11 July 2017 or on 20 July
2017. It is further contended that the applicant has not given
an
explanation for the delay in giving the notice of the intended
proceedings against them and has not dealt with the prospects
of
success in the application.
[9]
The
applicant contends that the debt only became due when he was
acquitted on 14 May 2018 and that he could not have instituted
the
claims while the criminal proceedings against him were still pending.
Furthermore, that the notices were served timeously on
the
respondents and that the claim for unlawful arrest and detention did
not prescribe. He asserts that there are prospects of
success in his
claim and that he has given a reasonable explanation for the delay in
the event the court finds that the notices
were late.
The
issues for determination
[10]
This
court has to determine whether condonation for the late filing of the
notice in terms of the Act, should be granted or not.
Applicable
Legal Principles.
[11]
Section
3 of the Act provides as follows:
(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 intention 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);
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.
Discussion.
[12]
The
notices in terms of the Act were served on the first and second
respondents on 23 October 2018. The Act requires the notices
to be
served on the organ of state within 6 (six) months of the debt
becoming due. The alleged unlawful arrest and detention, and
further
detention took place between 12 July 2014 and 14 July 2014
respectively. The notices were therefore served on the first
and
second respondents more than 3 (three) years after the arrest of the
applicant. According to the applicant, the notices were
served
timeously in that they were served five months from the date of his
acquittal.
[13]
The
applicant contends that in the event the court finds that the notices
were served late, they are late by a period of 45 months.
He claims
that the period is not inordinate having regard to the fact that
between July 2014 and May 2018 he had to defend the
criminal action
against him and could not have instituted any civil proceedings
against the respondents until the criminal proceedings
were
finalized.
[14]
Summons
was issued on 28 February 2019. This was more than four years after
the applicant was arrested.
When
did the debt become due?
[15]
Section
3(3) of the Act provides that-
(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 subsection 2 (2)(a), must be regarded as having
become due on the fixed date.
[16]
In
terms of the Prescription Act
[2]
,
the prescription period for debt claims is 3 (three) years. Section
12(1) of the Prescription Act provides that prescription shall
commence to run as soon as the debt is due. 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 through exercising reasonable care.
[3]
[17] The
respondents contended that the debt became due at the time the
applicant was arrested, from 12 July 2014
or at best on 21 July 2014
when the applicant was released on bail. The applicant claims that
the debt became due only after he
was acquitted on 14 May 2018. The
reason being that his cause of action is not only the unlawful arrest
and detention but also
malicious prosecution. His claim is for
damages consequent upon the unlawful actions which could only be
claimed after his acquittal.
[18]
In
Truter
and Another v Deysel
[4]
,
the court held as follows:
“…
Section
12(3) of the Act
requires knowledge only of the
material facts from which the debt arises
for
the prescription period to begin running – it does not require
knowledge of the relevant legal conclusions (i.e that the
known facts
constitute negligence) .... ”(
my
emphasis
).
[19]
In
Mtokonya
v Minister of Police
,
[5]
Zondo J held as follows:
“
Section 12(3)
does not require the creditor to have knowledge of any right to sue
the debtor nor does it require him or her to have
knowledge of the
legal conclusions that may be drawn from the facts from which the
debt arises.”
At paragraph 45 of the
judgment he went on to say:
“
Therefore
such knowledge falls outside the phrase “knowledge of facts
from which the debt arises” in section 12(3).
The
facts from which a debt arises are the facts of the
incident or
transaction
which, if proved, would mean that in law the debtor is liable to the
creditor
.”
[20]
In
the unreported judgment of
Eskom
V Bojanala Platinum District
Municipality
,
[6]
Moseneke J as he then was, held as follows:
“
In my view,
there is no merit in the contention drawn on behalf of the plaintiff
that prescription began to run only on the date
the judgment of the
SCA was delivered. The essence of this submission is that a claim or
debt does not become due when the facts
from which it arose are known
to the claimant but only when such claimant has acquired certainty in
regard to the law and attendant
rights and obligations that might be
applicable to such a debt. If such a construction were to be placed
on the provisions of section
12(3) grave absurdity would arise. These
provisions regulating prescription of claims would be rendered
elastic, open ended and
contingent upon the claimant and its
subjective sense of legal certainty. On that contention, every
claimant would be entitled
to have less certainty before the debt it
seeks to enforce becomes or is deemed to be due. In my view, legal
certainty does not
constitute a fact from which a debt arises under
section 12(3). A claimant cannot blissfully await authoritative,
final and binding
judicial pronouncements before its debt becomes
due, or before it is deemed to have knowledge of the facts from which
the debt
arises.”
[21] It
is therefore evident from the applicant’s version that at the
time of his arrest or shortly thereafter,
he already knew who the
debtor was and the facts from which the debt arose. He was aware of
the facts of the incident and who arrested
him. He was legally
represented throughout his criminal trial. He was therefore not
required to have knowledge of the legal conclusions
that may be drawn
from the facts from which the debt arose. It was therefore not
necessary for him to wait for the outcome of the
criminal proceedings
before he could pursue his claim for unlawful arrest and detention.
It follows that the debt became due when
the applicant was arrested
on 12 July 2014 or shortly thereafter when he was released on bail on
21 July 2014. No evidence has
been presented in the papers that the
respondents wilfully prevented the applicant from acquiring the
knowledge of their identity
and of the facts giving rise to the debt.
Organ
of State
[23] The
applicant contended that it was not required to serve the third and
fourth respondents with a notice of
the intended legal proceedings as
they are not organs of state. The respondents disagree.
[24] “Organ
of state” is defined as follows in the Act:
‘
Organ of state’
means –
a)
Any national or
provincial department;
b)
A municipality
contemplated in section 151 of the Constitution;
c)
any functionary or
institutions exercising a power or performing a function in terms of
the Constitution or a provincial Constitution
referred to in section
142 of the Constitution;
d)
the South African
Maritime Safety Authority established by section 2 of the South
African Maritime Safety Authority Act, 1998 (Act
5 of 1998);
e)
the South African
National Roads Agency Limited contemplated in section 3 of the South
African National Roads Agency Limited and
National Roads Act, 1998
(Act 7 of 1998);
f)
National Ports
Authority Limited, contemplated in
section 4
of the
National Ports
Act, 2005
, and any entity deemed to be the National Ports Authority
in terms of
section 3
of that Act;
g)
Any person for
whose debt an organ of state contemplated in paragraphs (a) to (f) is
liable.
[25] In
terms of paragraph (g) above, the third and fourth respondents fall
under the definition of ‘organ
of state’. The notice in
terms of the Act should have been served on them prior to the
proceedings being instituted against
them.
[26] Section
3(4) of the Act reads as follows:
“
(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;
iii)
the
organ of state was not unreasonably prejudiced by the failure.”
Debt
not extinguished by prescription.
[27] Mr
Kufa on behalf of the applicant submitted that the respondents never
raised the issue of prescription in
their plea. The issue was only
raised for the first time in the respondent’s answering
affidavit. This submission loses sight
of the provisions of section
3(4)(b)(i) of the Act. The section provides that the court may grant
condonation if it is satisfied
that the debt has not been
extinguished by prescription. The issue of prescription is very
crucial as a determining factor when
the court exercises its
discretion under section 3(4)(b)(i) of the Act.
[28] Having
regard to the authorities referred to above, I conclude that when the
applicant issued summons, and
served same on the respondents in 2019,
the claim for unlawful arrest and detention had already prescribed.
The applicant failed
to deliver in the prescribed manner, the
required notice in terms of the Act. The notice was supposed to have
been served within
6 (six) months from the date on which the debt
arose. At best for the applicant, the notice should have been
delivered to the respondents
by no later than 20 January 2015. The
notice was therefore more than 3 (three) years out of time.
[29] It
will therefore serve no purpose to grant condonation where the claim
has already been extinguished by prescription.
Under the
circumstances I do not find it necessary to deal with further
requirements envisaged in section 3(4)(b).
Costs.
[30] The
respondents asked for costs on a punitive scale against the
applicant. I am not persuaded that the respondents
are entitled to
such a costs order.
[
31]
I
accordingly make the following order:
1.
The application for
condonation for the late giving of a notice in terms of section 3(1)
of the Institution of Legal Proceedings
against Organs of State Act,
40 of 2002 is dismissed;
2.
The applicant is ordered
to pay costs of the application.
M J TEFFO
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Appearances.
For the
Applicant M
Kufa & N Maropene
Instructed
by Makhafola
&Vester Inc
For the
Respondents M
Barnard
Instructed
by State
Attorney Pretoria
Date
Heard 25
January 2021
Date handed
down 23
July 2021
[1]
Act
40 of 2002
[2]
Section
11(d) of Act 68 of 1969.
[3]
Section
12(3) of Act 68 of 1969, see also s 3(3) of Act 40 of 2002.
[4]
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at 175 B
[5]
2018
(5) SA 22 (CC)
[6]
2003
JDR 0498 (T) at para 16. Also referred to by Saner in his book:
“Prescription in SA Law” (Issue 23 3-98).