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[2019] ZAFSHC 81
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Khanya v The Minister of Police (5458/2014) [2019] ZAFSHC 81 (20 June 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 5458/2014
In
the matter between:
MONYAMOTSONE
PETRUS KHANYA
Plaintiff
and
THE
MINISTER OF POLICE
Defendant
CORAM
:
MEINTJES,
AJ
HEARD
ON:
04 JUNE 2019
DELIVERED
ON:
20 JUNE 2019
JUDGMENT
BY:
MEINTJES, AJ
INTRODUCTION
[1]
Plaintiff instituted a claim for damages against the defendant for
wrongful arrest by the
South African Police Service. Although the
pleadings of this case refer to “arrest and detention” or
“incarceration”
and “in custody”, it seems
from the pleadings that plaintiff’s cause of action is founded
on unlawful arrest
only, which occurred on 16 April 2010.
[2]
The defendant pleaded to the particulars of claim and filed 2 special
pleas, raising the
defences of prescription, in terms of which he
pleaded that the plaintiff’s claim had prescribed, and
non-compliance with
the Institution of Legal Proceedings against
Certain Organs of State Act, Act 40 of 2002,in that plaintiff
apparently failed to
serve a notice contemplated in section 3(1)(a)of
this Act.
[3]
This hearing, only for the determination of the question whether the
plaintiff’s claim
has prescribed or not (The 1
st
special plea,namely prescription). The plaintiff disputes this issue.
BACKGROUND FACTS
(Only as per the
pleadings. No evidence was adduced)
[4]
Plaintiff was arrested on 16 April 2010 for an alleged armed
robbery. He was beforehand,
telephonically informed to report
to the Police Station in Bethlehem, and by doing so, he was then
thereafter detained.
Bail was denied
thereafter in the Magistrate Court. Plaintiff then remained in
custody until he was acquitted on 3 April 2014,
after he was charged
and prosecuted for the said offence. Plaintiff at all material
times during this, legally represented.
COMMON
CAUSE FACTS
[5]
(a) Plaintiff was arrested on 16 April 2010.
b)
Summons was served on the defendant on 22 December 2014.
(c)
Plaintiff’s cause of action is founded on unlawful arrest only.
(d)
Plaintiff’s claim, in the normal course, would have been
extinguished by prescription on 15 April 2013.
ISSUE
FOR DETERMINATION
[6]
Whether plaintiff’s claim has prescribed or not? This issue
centres on the Prescription
Act, Act 68 of 1969(the Act).
[7]
Section 11(d) of the Act, states that civil debts prescribe three (3)
years after the debt
is due. Which does apply in this case.
[8]
Section 12 (1) thereof, states that the debt must be immediately
payable. This (section12(1))
a general rule, subject to three
exceptions, stated in subsections (2), (3)and (4). Subsection (4)
does not arise in this case
and will not be dealt with. Section 12(2)
of the Act reads:
“
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.”
Section 12 (3)
stipulates:
“
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 by exercising reasonable
care”.
The first exception, in
subsection (2),so it seems, only pertaining to cases where the debtor
is wilfully preventing or has wilfully
prevented the creditor from
“
coming
to know of the existence of the debt”.
From
the totality in this matter, there is no basis that plaintiff was
wilfully prevented from coming to know about the debt.
The second exception, in
subsection (3), is that a debt is not deemed to be due until the
creditor has knowledge of:
“
1)
the identity of the creditor; and 2) the facts from which the debt
arose
.
This also subjected to
another exception:
“
Provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by reasonable care”.
It seems that subsection
(3) imposes a duty on the creditor (the plaintiff) to exercise
reasonable care to obtain knowledge of the
debtor (the defendant) and
the facts from which the debt arises.
[9]
In
Leketi
v Tladi NO & Others
(2010) 3 ALL SA 519
(SCA) para 18 it was said:
“
In
order to determine whether the appellant exercised “reasonable
care”, his conduct must be tested by reference to
the steps
which a reasonable person in his or her position would have taken to
acquire knowledge…”
[10]
In
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at 175 B Van Heerden JA said:
“…
Section
12(3) of the Act requires knowledge only of the material facts from
which the debt arises for the prescriptive period to
begin running-it
does not require knowledge of the relevant legal conclusions (ie that
the known facts constitute negligence)…”
In
Mtokonya
v Minister of Police
2018 (5) SA 22(CC)
para 36 Zondo J said:
“
Section12(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 legal
conclusions that may be drawn from” the facts from which the
debt arises”.
And
para 45:
“
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 in
question which, if proved, would mean that in law
the debtor is
liable to the creditor”.
CONTENTIONS
BY THE PARTIES
[11]
The defendant, upon whom the onus fell to establish prescription,
contended that the plaintiff’s
claim has prescribed. The
prescription period, commenced on the date of the alleged arrest, 16
April 2010.
Defendant also contends
that plaintiff, at the time of his arrest, or shortly thereafter,
already knew that he is innocent, that
it was the South African
Police who arrested him, that the Police is making a mistake by so
arresting him and that he is suffering
damages.
Reasonably, he could have
acted earlier than he did, to delay or stop prescription.
[12]
The plaintiff contends that he, at the time of his arrest, had no
knowledge of the debtor and the facts
arising from the debt.
Section 11(d) of the Act therefor does not apply against plaintiff.
The identity of the
debtor and the facts giving rise to the debt, only became known to
the plaintiff after consulting with his erstwhile
attorneys. A
written notice was served upon the defendant on 10 July 2014, after
consulting an attorney. Plaintiff
only become aware of the
facts giving rise to the debt around July 2014.
Plaintiff also contends
that prior to consulting his erstwhile attorney, he did not know
whether he had a claim against defendant.
He being a layman and
of low education, not aware that he had a claim against the
defendant, until he was advised to consult
an attorney.
As a result, prescription
can only commenced from 10 July 2014 and not at any time prior to
that period.
It was also argumented on
behalf of plaintiff, that he was, while incarcerated, unaware of the
identity of the Minister of Police.
Unaware also that he had
been wrongfully arrested and that he can in fact sue the Minister of
Police.
Even if Plaintiff knew
the identity of the debtor, the claim would have been premature,
because plaintiff would not have known the
outcome of his prosecution
at the time of his arrest. Contending there were then, no facts
to rely on.
[13]
The impact of section 12(1), read with section 12(3) is that
prescription starts to run as soon as
the creditor has or ought to
have knowledge of the identity of the debtor and the facts from which
the debt arises.
[14]
If the majority decision in Mtokonya (
supra
)
is applied on plaintiff’s contentions, that he was unaware that
he was wrongfully arrested and that he can sue the Minister
of
Police, it seems that, that were not a matter of fact but a
conclusion of law.
[15]
In para 44 of the said decision the learned judge Zondo said:
“
Whether
the police’s conduct against the applicant was wrongful and
actionable is not a matter capable of proof. In
my view,
therefor, 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
section 12(3).It is rather a conclusion of law.”
That
not necessary for the purpose of section 12(3).
[16]
Plaintiff’s averments in his particulars of claim, more so the
amended particulars, re his arrest,
how his arrest came about and by
whom he was arrested and what followed thereafter, and all behind his
innocence according to him,
are all facts of the incident, within the
ambit of section 12(3). Indicative that he was aware, already
with his arrest,
and shortly thereafter, that the debtor is at least
the Police and well aware of these material facts of the incident
itself.
During all this time he was legally represented.
[17]
Clearly, by applying the objective standard, or when plaintiff’s
conduct is tested against to
what a reasonable person in his position
would have done with this knowledge (minimum but material facts),
plaintiff failed to
institute action timeously, caused by inaction
and not an inability to obtain knowledge of the identity of the
debtor and the facts
timeously. The contention as argumented
that plaintiff had no facts to rely on at the time of his arrest,
because he then
would not have known the outcome of his prosecution
at that time and his ignorance as a layman, both of no significance.
Unlawful arrest,
subsequent detention and prosecution is not to be treated as one
continuous transaction which is not completed
until the outcome of
the criminal prosecution.
In
Lombo
v African National Congress
2002 (5) SA 668
(SCA) at para 26 it was said:
“…
His
cause of action in this respect did not arise once and for all on the
day he was detained, nor did it first arise on the day
of his release
from detention.”
In
Barnard
and Others v Minister of Land Affairs and Others
2007 (6) SA 31
(SCA) at para 20 it was also said:
“
In
accordance with the concept, a distinction is drawn between a single,
completed wrongful act-with or without continuous injurious
effects,
such as a blow against the head-on the one hand and a continuous
wrong in the course of being committed, on the other.
While the
former gives rise to a single debt, the approach with regard to a
continuous wrong is essentially that it results in
a series of debts
arising from moment to moment as long as the wrongful conduct
endures”
.
This was confirmed in
Minister of Police N.O. National Prosecuting Authority of South
Africa v Yekiso
2019 (2) SA 281
(WCC) at para19.
Plaintiff as seen from
the particulars of claim, not such a layman at the time, but being a
businessman, owing and operating a business
as a long distance taxi
operator.
[18]
Plaintiff’s claim therefor has prescribed. He had enough
time to institute proceedings
and there is no reason to stretch the
minimum period of three years.
[19]
ORDER
1. The defendant’s
special plea of prescription in terms of the Prescription Act, Act 68
of 1969, is upheld.
2.
The plaintiff’s claim is dismissed with costs.
S.G.MEINTJES, AJ
On
behalf of the plaintiff: Adv. C.
Sihlali
Instructed by:
J. Socikwa Attorneys
On
behelf of the defendant: Adv. Wright
Instructed by:
The State Attorneys