About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2021
>>
[2021] ZAECBHC 41
|
|
Minister of Police v Zamani (CA 10/2021) [2021] ZAECBHC 41; 2023 (5) SA 263 (ECB) (12 October 2021)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION BHISHO
CASE
NO: CA 10/2021
DATE
HEARD: 02/08/2021
DATE
HANDED DOWN: 12/10/2021
In
the matter between:
MINISTER
OF
POLICE
APPELLANT
and
ABONGILE
ZAMANI
RESPONDENT
FULL
COURT APPEAL JUDGMENT
D
VAN ZYL DJP:
[1]
This appeal deals with extinctive prescription of a delictual claim.
The plaintiff
(the respondent in the appeal) instituted an action
against the defendant (the appellant in the appeal) for damages for
unlawful
arrest and detention. The defendant raised a special plea of
prescription, which was placed before the trial court for separate
adjudication. The trial court dismissed the special plea with costs.
The appeal against this order is with the leave of that court.
[2]
In terms of section 11(d) of the Prescription Act 68 of 1969 (the
Act), the plaintiff’s
claim for damages was subject to a
three-year extinctive prescription period. It was common cause that a
period of more than three
years had elapsed between the arrest of the
plaintiff and his release from custody, and the time when he
instituted his claim.
The plaintiff was arrested on 2 March 2014. He
was detained until he was released on bail on 14 August 2014. He
instituted the
action on 16 January 2019. However, the plaintiff in
reply to the defendant’s special plea pleaded that prescription
only
commenced running after he had consulted an attorney in November
2018, and he had acquired knowledge of the identity of the defendant
and of the facts giving rise to the debt.
[1]
[3]
Although the plaintiff alleged in his particulars of claim that his
arrest was wrongful,
unlawful and “
malicious”
,
his case was one of wrongful arrest and detention. It was presented
as such in the trial court, and in this Court.
[2]
The evidence placed before the trial court consisted of the evidence
of the investigating officer, Sergeant Ngcuza (Ngcuza), and
of the
plaintiff. According to Ngcuza, the plaintiff was arrested on 3 March
2014. It is common cause that the arrest was on a
charge of rape, and
that it was effected without a warrant of arrest. The following day
Ngcuza proceeded to obtain further witness
statements, whereafter he
took steps to ensure that DNA samples were obtained from the
plaintiff for analysis. He informed the
plaintiff of the nature of
the charge and of his rights. When the plaintiff appeared in court,
Ngcuza opposed the plaintiff’s
bail application. The reasons
for such opposition was because the plaintiff had previous criminal
convictions and because he lived
in close proximity to the victim of
the alleged rape. The prosecutor subsequently withdrew the charge
against the plaintiff in
court following receipt of the results of
the DNA analysis from Ngcuza.
[4]
The plaintiff’s evidence in turn was essentially to the effect
that he did not
know that he may have a claim for compensation
against the defendant, or that his arrest was unlawful. He testified
that he was
arrested on 2 March 2014. Nothing turns on the
discrepancy regarding the date on which the plaintiff was arrested.
Ngcuza, whose
evidence on this aspect was based on an entry made in
the police docket by another official, did not arrest the plaintiff.
The
plaintiff knew the police officer who arrested him and where he
was stationed. The import of this is dealt with in more detail
hereunder. The plaintiff’s first appearance in court was two
days later on 4 March 2014. He applied for bail, and was released
pursuant to such application on 12 March 2014. Following the
plaintiff’s release, he appeared in court on several occasions.
The charges were formally withdrawn against him by the prosecutor on
14 August 2014. The plaintiff was legally represented at his
bail
hearing and at his subsequent appearances in court. He did not have
sight of the police docket, and it was only after he had
become aware
of his rights when he listened to a radio program “
sometime
in 2018”,
that he first consulted an attorney. His evidence
on this aspect was as follows: “
I listened to a radio in a
certain program on True FM where an officer was called to the radio
station and explained what happens
during your arrest and even the
procedures in court. It is then that I collected information.”
[5]
The plaintiff elaborated on this aspect further during
cross-examination, and in response
to questions put to him by the
trial court. His responses in summary were that the radio program
dealt with the rights of persons
on legal issues and that he obtained
advice on what to do. At that point he realised that he could sue the
police officer who had
arrested him. He accordingly sought legal
assistance. The plaintiff acknowledged that he had always maintained
his innocence. He
confirmed that he was dissatisfied with the fact
that he had been arrested, and that the charge was later withdrawn.
When asked
why he did not take any action after the charge was
withdrawn against him, the plaintiff answered that all he was
“
interested in was to go home, on hearing that the case was
withdrawn.”
[6]
What the trial court was required to determine was the time when
prescription started
to run. The commencement of extinctive
prescription is dealt with in section 12 of the Act. It reads as
follows:
“
When
prescription begins to run
(1)
Subject to the provisions of ss (2) and (3), prescription
shall commence to run as soon as the debt is due.
(2)
If the debtor wilfully prevents the creditor from coming to
know of the existence of the debt, prescription shall not commence to
run until the creditor becomes aware of the existence of the debt.
(3)
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
(italics added)
.
Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.”
[7]
Section 12(1) provides for a general rule that prescription commences
to run as soon
as the debt is due. The rule is however subject to a
number of, what the Constitutional Court in
Mtokonya
v Minister of Police
[3]
referred to as exceptions, two of which are found in sub-section (3).
Using this terminology, it is the first of these two exceptions
in
subsection (3) that was pertinently raised as an issue on the
pleadings in this matter, that is, that the debt is not deemed
to be
due until the creditor has knowledge of the identity of the debtor,
and of the facts from which the debt arises. The second
exception,
which is framed as a proviso to the deeming provision in the first
part of subsection (3), comes into effect when the
creditor did not
have knowledge of the facts envisaged in the first part, namely the
identity of the debtor, or of the facts from
which the debt arose.
[4]
The question raised thereby is whether the creditor could have
acquired knowledge of those facts by having exercised reasonable
care. It focuses on the conduct, or the lack thereof, of the
creditor.
[8]
The defendant’s plea of prescription, as further circumscribed
by the plaintiff’s
reply, requires a determination of two
issues: Firstly, what the facts were which the plaintiff was required
to have knowledge
of before prescription could commence running; and
secondly, when the plaintiff acquired knowledge of such facts and of
the identity
of the defendant. It is well established that the
defendant bore the burden of proving when the plaintiff acquired the
knowledge
in question.
[5]
[9]
Prescription begins to run when the “
debt
is due”.
The term “
debt”
in section 12 is not defined in the Act. The meaning given to it in
the case law is “
...primarily
to describe the correlative of a right or claim to some performance,
in other words, as the duty side of an obligation
(verbintenis)
produced by contract, delict, unjust enrichment, statute or other
source.”
[6]
In
Duet
and Magnum Financial Services CC v Koster
[7]
Nugent J expressed the view that “
the
converse of a “right” is better described as a liability,
(as
opposed to an “
obligation”
)
which
admits of both an active and a passive meaning.” (
my
emphasis)
[8]
[10]
The commencement of the running of prescription is accordingly
determined with reference to the
time when the debt is recoverable,
that is, when the creditor acquires a right to claim, and conversely,
the debtor has the obligation
to perform.
[9]
A debt, including a delictual debt, is due in that sense for purposes
of the Act, says the Supreme Court of Appeal in
Truter
and Another v Deysel
,
[10]
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.”
[11]
[11]
It follows that prescription does not begin to run against a creditor
before his cause of action
is fully accrued, that is, before he is
able to pursue his claim. The aforementioned passage in Truter was
quoted with approval
by the Constitutional Court in
Links
.
[12]
Wrongful arrest and detention is a delictual debt.
[13]
Such a debt is generally due as soon as a delictual cause of action
arises.
[14]
‘
Cause
of Action’ is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff’s
legal
right of action and, complementarily, the defendant’s “debt”,
the word used in the
Prescription Act.”
[15
]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute factual ingredients of the cause of action.
They
constitute legal conclusions which are drawn from the facts.
[16]
The facts in that sense are limited to the facts which are material
to the creditor’s claim.
[17]
The facts material to a delictual debt are accordingly a combination
of the facts which must enable the court to arrive at legal
conclusions regarding the constituent elements of the delictual cause
of action in question, such as a causative act, harm, unlawfulness
and fault.
“
A cause of
action means the combination of facts that are material for the
plaintiff to prove in order to succeed with his action.
Such facts
must enable a court to arrive at certain
legal
conclusions regarding unlawfulness and fault, the constituent
elements of a delictual cause of action being a combination
of
factual and legal conclusions,
namely a causative act, harm, unlawfulness and culpability or
fault.”
[18]
[12]
The question then, is what combination of facts must a plaintiff have
in order to pursue and
prove his claim for damages for wrongful
arrest and detention. The arrest and detention of a person
constitutes an infringement
of his or her right to bodily freedom
(
libertas
). It is a right that is protected at common law and
in terms of the Constitution. The infringement of this right gives
rise to
a fundamental right to claim, and the obligation to pay
damages for an injury to personality (
iniuria
).
[13]
As a form of
iniuria
that does not require fault to found liability, the constituent
elements of an action for wrongful arrest and detention simply
consist of a person being deprived of his or her freedom without
justification.
[19]
The injury
to the person’s personality interest and the occurrence of harm
take place simultaneously with the arrest and
detention, and continue
until the person is released, and his or her freedom is restored. It
constitutes a continuous wrong that
“…
results
in a series of debts arising from moment to moment, as long as the
wrongful conduct endures.”
[20]
Justification, or put differently, the authority for the arrest, must
exist at the time a person is arrested and detained. It is
the
absence of such authority at the time of the arrest that renders the
arrest, and the detention that follows thereafter, wrongful.
[14]
All that a plaintiff must prove to succeed in an action for unlawful
arrest and detention, is
that the defendant himself, or a person
acting as his agent or servant, deprived him of his liberty.
[21]
The deprivation of a person’s physical liberty is
prima
facie
illegal and therefore wrongful.
[22]
It is consequently unnecessary for the plaintiff to allege
wrongfulness, and the burden of proof in respect thereof at trial is
on the defendant once the plaintiff has proved, or it has been
admitted, that the defendant was arrested and detained. It is for
the
defendant to allege and prove the existence of grounds of
justification. The reason lies in the plain and fundamental rule
that
every individual’s person is inviolable
[23]
.
In
Zealand
v Minister of Justice and Constitutional Development
[24]
Langa CJ explained it as follows:
“
This is not
something new in our law
.
It has long been firmly established in our common law that every
interference with physical liberty is prima facie unlawful. Thus,
once the claimant establishes that an interference has occurred, the
burden falls upon the person causing that interference to
establish a
ground of justification.
In
Minister
van Wet en Orde v Matshoba
,
[25]
the
Supreme Court of Appeal again affirmed that principle,
[26]
and then
went on to consider exactly what must be averred by an applicant
complaining of unlawful detention. In the absence of any
significant
South African authority, Grosskopf JA found the law concerning the
rei
vindicatio
a useful analogy.
[27]
The
simple averment of the plaintiff’s ownership and the fact that
his or her property is held by the defendant was sufficient
in such
cases. This led that court to conclude that,
since
the common-law right to personal freedom was far more fundamental
than ownership, it must be sufficient for a plaintiff who
is in
detention simply to plead that he or she is being held by the
defendant.
[28]
The
onus of justifying the detention then rests on the defendant. There
can be no doubt that this reasoning applies with equal,
if not
greater, force under the Constitution.”
[29]
(my emphasis)
[15]
The fact that the plaintiff is not required to allege and prove the
absence of justification
for his or her arrest and detention, means
that the facts from which it must be concluded that authority for the
arrest of the
plaintiff did, or did not exist, are not material facts
from which the delictual debt is said to arise. As emphasised in
Minister
of Finance and Others v Gore NO
[30]
,
“…
time
begins to run against the creditor when it has the minimum facts that
are necessary to institute action. The running of prescription
is not
postponed until a creditor becomes aware of the full extent of its
legal rights, nor until the creditor has evidence that
would enable
it to prove a case ‘comfortably’.”
Applied
to the facts of this case, the full extent of the plaintiff’s
cause of action was complete and the debt became due
when he was
released from detention on 12 March 2014. There was nothing that
prevented him from giving instructions to an attorney
to institute
proceedings. That the plaintiff may not have known what his legal
rights were, did not delay the running of prescription.
This aspect
will be dealt with more fully hereinunder.
[31]
[16]
On this basis the plea of prescription should accordingly have
succeeded. In what follows, it
will be shown that section 12(3) at
any rate does not envisage the plaintiff to have had knowledge that
the conduct of the police
was unlawful, or that he had a legal right
to bring a claim against the defendant. The sub-section has two
constituent parts: It
requires the creditor to have “
knowledge”
of the identity of the debtor, and of the “
facts.”
In
Gore
[32]
the meaning attributed to the words “
knowledge
of …”
in section 12(3) of the Act was that of a justified belief. A belief
in this sense is more than a suspicion and less than the product
of
personally witnessing or participating in events, or of being the
recipient of first-hand evidence. It extends to a belief that
is
engendered by, or inferred from attendant circumstances.
[33]
[17]
The question then is, what is the nature of the facts from which the
debt arises, which the creditor
must have knowledge of. The “
facts”
in sub-section (3) is qualified by the words “
from
which the debt arises”
.
In
Links
,
the Court emphasised that the facts are those “
facts
which are material to the debt”
[34]
(the
facta
probanda
).
A fact is a material fact if it would be necessary for a plaintiff to
prove it, if traversed, in order to support his or her
right to
judgment. The facts are accordingly determined, as a point of
departure, with reference to the constituent elements of
the
plaintiff’s claim. What the nature of those facts are, may
conveniently be stated with reference to what has been found
in
decided cases not to constitute facts for the purposes of section
12(3). Knowledge of the material facts does not mean that
the
creditor must have knowledge of all the facts underlying the cause of
action as pleaded, or of all of the alleged facts as
they appear from
the pleadings.
[35]
The facts
also do not include the evidence necessary to prove each fact (the
facta
probantia).
“
It
does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to be proved.”
[36]
[18]
It is further not necessary for the creditor to have knowledge of the
full extent of his or her
legal remedies, or what the full legal
implications of the known facts are. “
The
running of prescription is not postponed until a creditor becomes
aware of the full extent of its rights, nor until the creditor
has
evidence that would enable it to prove a case “comfortably”,
[37]
and, “
[i]t
may be that the applicant had not appreciated the legal consequences
which flowed from the facts, but its failure to do so
does not delay
the date prescription commenced to run.”
[38]
In
Mtokonya
[39]
the Constitutional Court held that the facts, for purposes of section
12(3), are distinct from questions of law, or of a value
judgment.
Consequently, knowledge that the conduct of the debtor is wrongful or
negligent, which is a legal conclusion and not
a fact, is not
required before prescription begins to run.
[40]
Rather, what is required are the material facts from which the legal
conclusion of the elements of wrongfulness and fault in a
delictual
claim may be drawn. It follows, by way of example, that it is
insufficient for a plaintiff to allege negligence without
also
detailing the grounds of such negligence.
[41]
In other words, the plaintiff is required to plead the facts from
which he seeks to draw the conclusion that the defendant acted
negligently. It is those facts, which the plaintiff must have
knowledge of, as opposed to knowledge that those facts support a
conclusion of negligence.
[19]
In
Links
[42]
the Constitutional Court further outlined what the nature of the
facts are for purposes of section 12(3) of the Act. It held, in
the
context of negligence as a constituent element of a delictual claim
for damages involving professional negligence, that knowledge
of the
facts from which the debt arises are, “…
sufficient
facts to cause [the creditor] on reasonable grounds to think that the
injuries were due to the negligence of the medical
staff.”
[43]
This finding was confirmed by the same court in
Loni
v Member of the Executive Council for Health, Eastern Cape
.
[44]
With reference to the judgment in Links, the Court in
Loni
said the following:
“
This court
opined [in
Links
]
that it would be setting the bar too high to require knowledge of
causative negligence. In answer to this issue, this court held
that
in cases involving professional negligence, the facts from which the
debt arises are those facts which would cause a plaintiff,
on
reasonable grounds, to suspect that there was fault on the part of
the medical staff and that caused him or her to ‘seek
further
advice’.”
[45]
[20]
What the facts are for purposes of sub-section (3), would accordingly
extend to include such
facts that would cause the creditor to
reasonably believe that a constituent element of the delict in
question is present. This
approach cannot be criticised. To raise the
bar any higher would not afford a debtor the protection “…
from
undue delay by litigants who are laggard in enforcing their
rights,”
[46]
and would be at odds with the rationale that prescription promotes
“
certainty
and stability to social and legal affairs and maintain the quality of
adjudication.”
[47]
Further, it conforms with the finding in Gore
[48]
that “
knowledge”
for purposes of section 12(3) extends to a belief that is engendered
by, or inferred from attendant circumstances.
[21]
Applied in the context of the claim in the present matter, the
plaintiff was not required to
conclusively know that the arresting
officer did not have authority to arrest him or her, but rather that
the plaintiff had knowledge
of sufficient facts which would
reasonably have placed him in a position to form the belief that the
arrest was without justification,
and to investigate the matter
further.
[22]
As stated earlier, the defendant had to prove that the plaintiff’s
claim had prescribed.
[49]
The
trial court found that the defendant failed to discharge the onus in
this regard by having failed to place any evidence before
it as to
why the claim is said to have become prescribed. However, the Court’s
assessment of the evidence and its application
of the burden of proof
failed to account for two important aspects: Firstly,
prima
facie
the claim had become described, which constrained the plaintiff to
plead that he did not have the required knowledge as envisaged
in
section 12(3) of the Act. Secondly, a determination whether the
defendant had discharged the burden of proof is informed by
the fact
that the facts that were possessed by the plaintiff, at the relevant
time, is an aspect which fell within the exclusive
knowledge of the
plaintiff. The difficulty facing a debtor who pleads prescription to
establish when the creditor required knowledge
of his identity and of
the facts from which the debt arises, was recognised by the Court in
Gericke
[50]
where this aspect was pertinently dealt with. The Court said that in
determining whether the debtor has managed to discharge the
burden of
proof, that “
the
Courts take cognizance of the handicap under which a litigant may
labour where facts are within the exclusive knowledge of his
opponent
and they have in consequence held, as was pointed out by Innes, J.,
in
Union
Government (Minister of Railways) v Sykes
,
1913 A.D. 156
at p. 173, that
‘
less evidence
will suffice to establish a
prima
facie
case where the matter is peculiarly within the knowledge of the
opposite party than would under other circumstances be required.’
[51]
In
Ex Parte
the Minster of Justice: In re Rex v Jacobson & Levy
,
the Court similarly referred to the fact that the question whether
evidence is sufficient to establish a
prima
facie
case, is dependent upon “
the
nature of the case and the relative ability of the parties to
contribute to evidence on that issue.”
[52]
[23]
On the plaintiff’s evidence he clearly believed that he should
not have been arrested.
Such belief could only have been based on his
insistence from the outset that he was innocent, coupled with the
fact that the charge
against him was later withdrawn once the results
of the DNA analysis came to hand. The identity of the police officer
who arrested
him was known to him. Any suggestion that the plaintiff
did not know that the policemen concerned was employed by the
defendant,
can be rejected without further ado. That was in any event
not the plaintiff’s evidence. It is not clear from his
testimony
exactly what it is that he had learned for the first time
when he listened to a program about legal rights on the radio. On a
reading
of the plaintiff’s evidence as a whole, which is
characterised by its vagueness and lack of detail, it must be
concluded
that the information which he obtained from the radio
program was no more than a realisation that he may have a claim
against the
policeman who arrested him, as opposed to the material
facts relating to his arrest and detention that he would need to
prove in
order to establish the liability of the defendant. It goes
without saying that the plaintiff could not have obtained any facts
relating to his own arrest from listening to the program. The
plaintiff’s evidence, which in itself was contradictory,
[53]
goes no further than to contend, at best, that he did not know that
he had a legal remedy against the defendant. This cannot assist
the
plaintiff. As stated by the Constitutional Court in
Mtokonya
,
[54]
“
Section
12(3) does not require the creditor to have knowledge of any right to
sue the debtor.”
[55]
[24]
In this Court, as in the trial court, the plaintiff in argument
placed reliance on the decision
in
Makhwelo
v Minister of Safety and Security
[56]
in support for the proposition that the plaintiff did not acquire
knowledge of the facts until such time as he had access to the
police
docket. In his plea, the defendant pleaded that the arresting officer
had entertained a reasonable suspicion that the plaintiff
had
committed the crime of rape, and that the arrest had been justified
in terms of section 40(1)(b) of the Criminal Procedure
Act (CPA)
[57]
.
The plaintiff’s proposition is essentially that in the absence
of having been provided with the police docket, and particularly
the
complainant’s affidavit, the plaintiff did not know whether the
information on which the decision to arrest him, was
sufficient for
the arresting officer to have entertained a reasonable suspicion as
required by section 40(1)(b) of the CPA. In
other words, the
plaintiff did not have knowledge of the lawfulness or otherwise of
his arrest.
[25]
In
Makhwelo
[58]
the Court, departing from the incorrect premise that the plaintiff in
a case of unlawful arrest and detention bears the burden
of proving
that the arresting officer had no reasonable suspicion that the
plaintiff had committed or was going to commit a Schedule
1
offence,
[59]
reasoned as
follows:
“
It is difficult
to appreciate that at the time of the arrest or even during detention
the suspect would have sight of the docket
in order to form a view
that the arresting officer did not have a reasonable suspicion that
an offence had been committed. The
officer may have received a
fabricated complaint from alleged eyewitnesses who were intent on
falsely incriminating the suspect
for their own ends. Accordingly,
the complainant would not know at the time of arrest whether the
arresting officer was reasonably
relying on the accounts of a
complainant who turned out to be fabricating events (in which case
the claim would lie against the
complainant and not the police), or
whether the arresting officer in fact did not have a reasonable
suspicion that the suspect
had committed the offence. Since the
docket is not available to an accused until the investigation is
completed and he is presented
with the indictment, it is most
unlikely that the identity of the complainant or the evidence that
was available when the arrest
was made would be known to a would-be
plaintiff. Without that knowledge a plaintiff cannot assume that the
arresting officer was
acting unlawfully when effecting the arrest
rather than that the complainant has falsified a charge against
him.”
[60]
[26]
I agree with the defendant’s submission that
Makhwelo
was wrongly decided. As stated earlier, the burden of proving that an
arrest and detention are justified, rests on the person who
effected
the arrest.
[61]
The judgment
in
Makhwelo
further conflates the strength, or the prospects of success of a
claim, with the knowledge required for the institution of a claim
in
order to interrupt the running of prescription. As stated in
Gore
,
[62]
prescription is not postponed until such time as the creditor is in a
position to comfortably prove his or her case. It is also
not
necessary for the creditor to have certainty “
in
regard to the law and the defendant’s rights and obligations
that might be applicable to such debt.”
[63]
[27]
The decision in
Makhwelo
[64]
is also in conflict with the judgment of the Constitutional Court in
Mtokonya
.
[65]
In
Mtokonya
the Court dealt with a case of unlawful arrest and detention. The
case was “
about
whether
section 12(3)
of the
Prescription Act requires
a creditor to
have knowledge that the conduct of the debtor giving rise to the debt
is wrongful and actionable before prescription
may start running
against the creditor”.
[66]
The Court concluded that
section 12(3)
does not require knowledge of
legal conclusions or the availability in law of a remedy
.
[67]
“Whether the police’s conduct against the applicant was
wrongful and actionable is not a matter capable of proof. In
my view,
therefore, what the applicant said he did not know about the conduct
of the police, namely whether their conduct against
him was wrongful
and actionable, was not a fact and, therefore, falls outside of
s
12(3).
It is rather a conclusion of law,”
[68]
and
“
[k]nowledge
that the conduct of the debtor is wrongful and actionable is
knowledge of a legal conclusion and is not knowledge of
a fact.
Therefore, such knowledge falls outside the phrase ‘knowledge …
of the facts from which the debt arises’
in
s 12(3).
The facts
from which a debt arises are facts of the incident or transaction in
question which, if proved, would mean that in law
the debtor is
liable to the creditor.”
[69]
The finding in Gore
[70]
that
the running of prescription is not delayed until a creditor is aware
of the full extent of his legal rights, is consistent
with the “
well
known principle in our law that ignorance of the law is no excuse. A
person cannot be heard to say that he did not know his
rights.”
[71]
[28]
Accordingly, and for these reasons, I am satisfied that the defendant
had discharged the burden
of proving, firstly that the plaintiff had
knowledge of the identity of the debtor, and secondly, that the
plaintiff had knowledge
of the facts from which the debt arose, as
envisaged in section 12(3) of the Act, more than three years prior to
the institution
of proceedings for the recovery of damages. In the
result, the plaintiff’s claim had become prescribed, and the
decision
of the court
a quo
must be set aside. It is therefore
ordered that:
1.
The appeal is upheld with costs, such costs to include the costs
occasioned by
the employment of two counsel;
2.
The order of the court
a quo
is set aside, and is substituted
with the following order:
“
The plaintiffs
claim is dismissed with costs.”
SIGNED
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
I
agree:
SIGNED
B.N.
MAJIKI
JUDGE
OF THE HIGH COURT
I
agree:
SIGNED
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff:
R Quinn SC & V Sangoni
Instructed
by:
State Attorney
Old Spoornet Building
17 Fleet Street
Quigney
EAST LONDON
Counsel
for the Defendant: A
Bodlani & L van Vuuren
Instructed
by:
Cinga Nohaji Attorneys
29 Gladstone Street
1
st
Floor
Office 7 – 8
Central Square Building
EAST LONDON
[1]
The plaintiff pleaded that “
for
purposes of subsection 3(2)(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”
and
therefore “
the
plaintiff pleads that he only became aware of the creditor and the
facts giving rise to the debt after consulting with his
attorneys of
record in November 2018.”
[2]
Malicious arrest is a cause of action separate and distinct from
wrongful arrest and must be pleaded as such. The distinction
between
the two causes of action was explained in
Newman
v Prinsloo and another
1973 (1) SA 125
(W) at 127H. See also
Relyant
Trading (Pty) Ltd v Shongwe and another
[2007] 1 All SA 375
(SCA) at paras [4] and [6], and Neethling,
Potgieter and Visser, Law of Delict 7ed at 350 to 351.
[3]
2018 (5) SA 22
(CC) at paras [31] to [34]. See also
Links
v Department of Health
2016 (4) SA 414
(CC) at para [27].
[4]
Ib
id
at para [34].
[5]
Gericke
v Sack
1978 (1) SA 821
(A) at 826H to 827D.
[6]
Loubser,
Extinctive Prescription at page 100 onwards. See also
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 842 F.
[7]
2010 (4) SA 499 (SCA).
[8]
Ibid at para [24].
[9]
The
Master v I L Back and Co Ltd and others
1983 (1) SA 986
(A) at 1004G.
[10]
2006 (4) SA 168 (SCA).
[11]
Ibid at para [16]. See also
Deloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A) at 532H;
Santam
Ltd v Ethwar
[1998] ZASCA 102
;
1999 (2) SA 244
(SCA) at 252 B - D and
Standard
Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and
another
2017 (1) SA 185
(SCA) at para [24].
[12]
Supra
fn 3
at para [31].
[13]
Joubert, The Law of South Africa vol 15, 3ed at para 189.
[14]
Loubser op cit at page 80.
[15]
Evins
supra fn 6 at 825 F – H.
[16]
Truter
supra fn 10 at para [17] and
Links
supra fn 3 at para [31].
[17]
Links
supra fn 3 at para [32].
[18]
Truter fn 10 at para [17]. See also
Links
supra fn 3 at para [32], and Loubser op cit at page 80.
[19]
Neethling, Potgieter and Visser op cit at page 349.
[20]
Barnett
and Others v Minister of Land Affairs and Others
2007 (6) SA 313
(SCA) at para [20]. See also
Lombo
v African National Congress
2002 (5) SA 668
(SCA) at para [26], and
Minister
of Police v Yekiso
2019 (2) SA 281
(WCC) at para [19].
[21]
Relyant
supra fn 2 at 378.
[22]
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A) at 153 E – F.
[23]
Ibid at 153E.
[24]
2008 (4) SA 458 (CC).
[25]
1990 (1) SA 280 (A).
[26]
Ib
id
at 286 A - C.
[27]
Ibid at 285 to 286.
[28]
Ibid at 286.
[29]
Zealand
supra fn 24 at para [25].
[30]
2007 (1) SA 111
(SCA) at para [17].
[31]
See paras [18] and [27] below.
[32]
Supra
fn 30 at para [19]
.
[33]
Ibid at para [19].
[34]
Supra fn 3 para [32].
[35]
Drennan
Maud and Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212 F – H.
[36]
McKenzie
v Farmers’ Co-Operative Meat Industries Ltd
1922 AD 16
at 23 and
Evins
fn 6 at 838 D – H. See also
Ascendis
Animal Health (Pty) Ltd v Merck Dohme Corporation and others
2020 (1) BCLR 1
(CC) at para [52].
[37]
Gore
supra fn 30 at para [22] and
Mtokonya
fn 3 at para [36].
[38]
Yellow
Star Properties 1020 (Pty) Ltd v MEC Department of Development
Planning and Local Government, Gauteng
2009 (3) SA 577
(SCA) at para [37]. By way of an example, in
Van
Staden v Fourie
1989 (3) SA 200
(A) the Court held (in the context of a statutory
provision permitting recovery of monies paid), that the running of
prescription
is not postponed until the creditor has established the
full extent of his rights. It followed that prescription started
running
when the creditor knew the facts which the statute
postulated for recovery, even though the creditor only later learned
what
requirements the statute posed, and what rights he acquired
when the payee failed to fulfil those requirements (at 216 B –
F). See also
Gore
supra fn 30 at para [17].
[39]
Supra fn 3.
[40]
Ibid at para [45]. See further paragraph [28] of this judgment.
[41]
SA Fish
Oil Producers’ Association (Pty) Ltd v Shipwrights &
Engineers Holdings Ltd
1958 (1) SA 687
(C), and
Honikman
v Alexandra Palace Hotels (Pty) Ltd
1962 (2) SA 404
(C).
[42]
Supra fn 3.
[43]
Ibid
at para [42].
[44]
2018 (3) SA 335 (CC).
[45]
Ibid at para [23].
[46]
Gore
supra fn 30 at para [16].
[47]
Road
Accident Fund v Mdeyide
2011 (2) SA 26
(CC) at paras [2] and [8]. See also
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at para
[11]
and
Frieslaar
and Others v Ackerman and Another
(1242/2016)
[2018] ZASCA 3
(2 February 2018) at paras [17] and [18].
[48]
Supra fn 30 at para [19].
[49]
See para [7] of this judgment.
[50]
Supra
fn 5
.
[51]
Ibid at 827 E – G.
[52]
1931 AD 466
at 479. See also
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 40 A – C.
[53]
Regard being had to the plaintiff’s answer as to his lack of
action once the charges were withdrawn in 2014. Significantly,
the
plaintiff did not contend that he took no action as he was unaware
of his remedies at that stage. Instead, he contended that
his lack
of action was attributed to him only having been interested in going
home once he had heard that the charge had been
withdrawn.
[54]
Supra fn 3.
[55]
Ibid at para [36]. See also
Gore
supra fn 30 at para [17].
[56]
2017 (1) SA 274 (GJ).
[57]
Act 51 of 1977. It reads:
“
(1)
A peace officer may without warrant arrest
any person
(a)
…
(b)
Whom
he reasonably suspects of having committed an offence referred to in
Schedule 1, other than the offence of escaping from
lawful custody.”
[58]
Supra fn 55.
[59]
Ibid at para [54].
[60]
Ibid at para [55].
[61]
See paragraph 14 of this judgement.
[62]
Supra fn 30 at para [17].
[63]
Eskom v
Bojanala Platinum District Municipality
2003 JDR 0498 (T) at para [6], which was quoted with approval in
Mtokonya supra fn 3 at para [46].
[64]
Supra at fn 55.
[65]
Supra at fn 3.
[66]
Ibid at para [1].
[67]
Ibid at para [37]. See also
Fluxmans
Inc v Levenson
2017 (2) SA 520
(SCA) at paras [10] and [32], and
Claasen
v Bester
2012 (2) SA 404
(SCA) at para [15].
[68]
Ibid
at
para [44].
[69]
Ibid at para [45].
[70]
Supra fn 30 at para [22].
[71]
Otto v
Schurink and another
1911 TPD 367
at 370. In criminal law where fault (
mens
rea
)
is an element of an offence, ignorance of the law may be a valid
defence. See S v Blom
1977 (3) SA 513
(A). An error in law may in
certain instances be a ground for relief in a civil matter, such as
for purposes of the
condictio
indebiti
.
See Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue
[1991] ZASCA 163
;
1992 (4)
SA 202
(A).