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[2021] ZAECBHC 1
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Minister of Police v Zamani (12/2019) [2021] ZAECBHC 1 (2 February 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
NO: 12/2019
In
the matter between:
MINISTER OF
POLICE
Applicant
and
ABONGILE
ZAMANI
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MBENENGE,
JP:
[1]
This is an opposed application for leave to appeal to the full Court
of this division against the judgment
of this Court dismissing, with
costs, the applicant’s
[1]
special plea on prescription, delivered on 10 November 2020.
[2]
TheCourt’s pronouncement departed from the premise that, in the
light of the manner in which the
special plea had been couched,
[2]
reliance could not be placed on section 12(3) of the Prescription Act
as that was neither the case the applicant had advanced in
the
special plea, nor one which the respondent could be called upon to
meet at the trial stage.
[3]
The Court found that, in any event, the evidence of “
Sergeant
Ngcoza did not bring the
[applicant’s]
case
within the ambit of section 12(3)
”as
he “
merely
testified to the date when and by whom the
[respondent]
was
arrested and shed no light in relation to why the claim
[was]
hit
by prescription
.”
[3]
[4]
The respondent, on the other hand, held the Court, had “
discharged
any evidential burden that might be said to have rested on him to
establish that he acquired knowledge of the identity
of the debt and
of the facts giving rise to the debt after obtaining legal advice
concerning the availability of a cause of action
against the
[applicant]
during or about November 2018
.”
[5]
The applicant relies on the following grounds in pursuit of the
application, namely:
“
1.
That the learned Judge erred in finding that the applicant could not
rely on section 12(3) of the Prescription Act.
2.
That the learned Judge erred in not finding that:
2.1
The
debt became due, and prescription commenced to run, when the
respondent had knowledge, or deemed knowledge, of the identity
of the
debtor and the facts from which the debt arose in order to institute
a claim.
2.2
The
common cause facts were that the respondent:
2.2.1
was
arrested by the police on 02 March 2014;
2.2.2
was
detained by, or at the instance of the police, until 12 May 2014; and
2.2.3
the
summons claiming damages for wrongful arrest and detention was issued
on 16 January 2019.
2.3
The
identity of the debtor was manifest – the Minister of Police.
2.4
The
facts from which the debt arose were the arrest and the detention of
the plaintiff.
2.5
Neither
possession of the police docket nor receipt of legal advice affected
the respondent’s obligation to institute a claim
within 3
years.
2.6
The
decision of the Constitutional Court in
Mtokonya
v Minister of Po
lice
could not be distinguished, was binding and fell to be followed.
2.7
The
decision in
Makhwelo
v Minister of Safety and Security
was wrongly decided, inconsistent with the Constitutional Court
decision in
Mtokonya
and could not be followed.
2.8
The
respondent’s claim had prescribed.”
[6]
At the hearing of the application the parties were in one accordthat
the issue for determination had,
in spite of the fact that the
special plea on prescription lacked precision, been properly
identified and the trial had proceeded
(and evidence led) on the
issue of prescription.
[7]
It was accordingly submitted, on behalf of the respondent, that there
would be no justification for
interference by an
appellate tribunal merely because the pleadings of the
applicant had not been explicit as might have been on the issue. The
applicant
did not argue to the contrary. In light of the view I
take of the matter, this issue need not be pronounced on.
[8]
Differing contentions on the merits of the application were made.The
test to be adopted in applications
for leave to appeal was also
subjected to some debate, yet the applicable legal position is trite.
[9]
Section 17(1)
(a)
of the
Superior Courts Act 10 of 2013
provides:
“
(1)
Leave to appeal may only be given where the judge of judges concerned
are of the opinion that—
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.”
[10]
In
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International
[4]
Smith
J aptly put it thus:
“
[4]
There can be little doubt that the use of the word ‘would’
in
section 17(1)(a)(i)
of the
Superior Courts Act implies
that
the test for leave to appeal is now more onerous. The intention
clearly being to avoid our courts of appeal being flooded
with
frivolous appeals that are doomed to fail. I am, however, of the
respectful view that the ‘measure of certainty’
standard
propounded by the learned judge in
Mont
Chevaux Trust
may be placing the bar too high. It would, in my respectful view, be
unreasonably onerous to require an applicant for leave to
appeal to
convince a judge – who invariably would have provided extensive
reasons for his or her findings and conclusions
– that there is
a ‘measure of certainty’ that another court will upset
those findings. It seems to me that a
contextual construction of the
phrase ‘reasonable prospect of success’ still requires of
the judge, whose judgment
is sought to be appealed against, to
consider, objectively and dispassionately, whether there are
reasonable prospects that another
court may well find merit in
arguments advanced by the losing party. . .”
[11] I
remain satisfied that even if it were to be found that the applicant
was, on the pleadings, entitled to rely
on
section 12(3)
, he did not
bring his case within the purview of the section. The
respondent, on the other hand, discharged the onus resting
on him to
establish that he acquired knowledge of the identity of the debt and
the facts giving rise to the debt on or about November
2018. Apart
from all else, under cross-examination, Sergeant Ngcoza, who
testified on behalf of the applicant, did not dispute
that the
respondent became suspicious that his arrest might have been unlawful
in November 2018, and that he became aware of the
fact that his
arrest was unlawful upon consulting with his lawyer during the same
period.For his part, Sergeant Ngcoza was, during
his testimony,
oblivious to why the claim was said to have prescribed. Without
having had sight of the relevant police docket,
the identity of the
debtor could not have been manifest.
[12]
The conclusion reached by the Court in the impugned judgment was
influenced principally by
Makhwelo
[5]
,
which makes access to a police docket pivotal to the identification
of the debtor, the appropriate cause of action, and the opportune
moment for launching the action before it is hit by prescription.
[13]
It has, however, greatly exercised my mind whether, upon a reading
thereof, the subsequent pronouncement in
Mtokonya
[6]
may not be said to have watered down the principle enunciated in
Makhwelo
.
In the first place,
Mtokonya
was
decided on the basis that the court had to determine a legal (as
against a factual) issue which did not prevent prescription
from
running and that the applicant therein “. . .
did
have the knowledge of the identity of the debtor and the material
facts giving rise to the debt at the time he was released
from
detention . . . but . . . did not know that he had a legal remedy
against the defendant
.”
[7]
In the instant matter the respondent’s uncontroverted
testimony was that he had no knowledge of the identity of the
debtor,
certainly not without having had sight of the police docket. It
is a matter of concern that the line between what
is purely factual,
as against legal, within the meaning of section (12)(3), is too
narrow and may at times result in a conflation
of these terms.
[14]
The problem that confronts us is exacerbated if one has regard to the
following remarks by Froneman J (writing
for the majority) in
Kruger
[8]
:
“
It
is not clear to me whether the first judgment purports to lay down a
legal rule that in all debts arising from delictual claim
based on
malicious prosecution, prescription starts to run only when a
claimant has knowledge of the contents of the police docket.
That
would be a disquieting departure from the clear conceptual logic of
the precedents in this area. For the reason stated
above–that
the evidence to prove lack of reasonable and probable cause and
intent to injure will vary from case to case-
a legal rule to that
effect cannot and should not be posited.”
[15]
There is no reason in logic and common sense why these remarks may
not be applied to a case, such as the instant
one, involving wrongful
arrest and detention.
[16]
Much as I am confident that the impugned judgment is correct, there
is, in light of what is stated in paragraphs
13 and 14, a compelling
reason why the appeal sought should be heard.
[17]
Accordingly, the following order is made:
(a)
The
applicant is granted leave to appeal to the full Court of this
division against the judgment and order dismissing the applicant’s
special plea on prescription delivered on 10 November 2020.
(b)
Costs
of this application shall be costs in the appeal.
_______________________
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Applicant’s
counsel
:
R
Quinn SC
(with him,
V
Sangoni)
Applicant’s
attorneys
: State
Attorney
East
London
C/o Legal Shared
Services
Office of the
Premier
King
Williams Town
Respondent’s
counsel
:
A
Bodlani
(with
him,
L
van Vuuren
)
Respondent’s
attorneys
: Cinga Nohaji Inc
East
London
Date
application for leave to appeal heard: 18
January 2021
Date
judgment delivered
: 02 February 2021
[1]
The
applicant is the defendant in the action from which this application
arises.
[2]
The
applicant had merely pleaded that the claim had prescribed after the
lapse of 3 years from the date of the respondent’s
arrest (02
March 2014), without the applicant having specifically relied on
section 12(3)
of the
Prescription Act 68 of 1969
.
[3]
Zamani
v Minister of Police
[2020]
ZAECBHC 23 at para 29 (impugned judgment).
[4]
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International
[2016]
ZAECGHC 137; Also see
MEC
for Health, Eastern Cape v Neliswa Mbola
obo
Asavela
Mbola
[2019] ZAECMHC 21, where, with reference to the Supreme Court of
Appeal judgment in
MEC
for Health, Eastern Cape v Mkitha
[2016] ZASCA 176at
para 17, it was held:
“
.
. . an applicant for leave to appeal must convince the court on
proper grounds that there is a “reasonable prospect or
realistic chance of success on appeal. A mere possibility of
success, an arguable case, or one that is not hopeless, is not
enough. There must be a sound basis to conclude that there is a
reasonable prospect of success on appeal.”
[5]
Makhwelo
v Minister of Safety and Security
[2015]
ZAGPJHC 10; 2017(1) SA 274 (GT).
[6]
Mtokonya
v Minister of Police
[2017]
ZACC 33
;
2017 (11) BCLR 1443
(CC); 2018(5) SA 22 (CC).
[7]
Id
at para 25.
[8]
Kruger
v National Director of Public Prosecutions
[2019]
ZACC 13
;
2019 (6) BCLR 703
(CC) at para 80.