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[2018] ZAKZDHC 20
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Augustine v Minister of Safety and Security (3771/2007) [2018] ZAKZDHC 20 (29 May 2018)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 3771/2007
In
the matter between:
JULIAN
CLAUDE
AUGUSTINE
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
Defendant
JUDGMENT
Delivered in court: 29
May 2018
MBATHA
J
[1]
The plaintiff issued summons on 28 October 2016 in this court against
the Minister of Safety and Security (‘the defendant’).
The summons was served on 28 October 2016.
[2]
In his summons the plaintiff avers that on or about 5 February 2002
at Kloof, Pinetown, he was arrested for fraud and corruption
by
police officers at the South African Police Services (SAPS) based in
Pinetown, whose names and ranks were unknown to him. In
consequence
of being arrested the plaintiff was detained in police custody for
one day.
[3]
On 22 January 2003, the charges were provisionally withdrawn against
the plaintiff but were subsequently reinstated and as a
result
thereof he appeared in court on nine different occasions. On 26
September 2006, all charges were withdrawn against the plaintiff.
As
a direct consequence of the arrest, detention and being charged he
claims damages against the defendant. The plaintiff contends
that at
the time of his arrest the defendant became aware or ought to have
been aware that charges preferred against the plaintiff
were false
and without substance.
[4]
The defendant has raised a special plea to the plaintiff’s
claim in that the plaintiff was obliged to lodge an action
for
damages with the defendant within a period of three years from the
date which the cause of action arose in terms of the Prescription
Act,
[1]
(the Act). Counsel for the defendant contends that the cause of
action arose on 5 February 2002 when the plaintiff was arrested
and
detained by the police officers of the South African Police Services
(SAPS). Therefore the plaintiff’s claim prescribed
after three
years from the date of his arrest.
[5]
The plaintiff denies that the claim has prescribed as alleged by the
defendant. The plaintiff avers that the cause of action
arose when
the Director of Public Prosecutions withdrew all the charges against
the plaintiff on 26 September 2006. The summons
was issued within a
three year period from the date of the withdrawal of the charges,
therefore the claim has not prescribed.
[6]
It is common cause that the arrest occurred on 5 February 2002, that
on 22 January 2003 charges were provisionally withdrawn
against the
plaintiff, reinstated and that on 26 September 2006; all charges were
withdrawn against the plaintiff.
[7]
At the commencement of the trial I was required to proceed in terms
of Uniform rule 33(4) that the Plea of Prescription be determined
first and that the issue of liability and quantum to stand over for
later determination. I am to consider the special plea on the
pleadings as they stand.
[8]
It is common cause that a party who raises a special plea bears the
onus to prove the facts underlying the special plea. The
defendant in
support of its contention that prescription arose from the date of
arrest, being 5 February 2002, relies on various
authorities set out
in the heads of argument. The defendant relies on the case of
Mtokonya
v Minister of Police
[2]
where the court stated as follows:
‘
The question that arises is
whether knowledge that the conduct of the debtor is wrongful and
actionable is knowledge of a fact.
This is important because
the knowledge that section 12(3) requires a creditor to have is
“knowledge of facts from which
the debt arises”. It
refers to the “facts from which the debt arises”.
It does not require knowledge
of legal opinions or legal conclusions
or the availability in law of a remedy.’
[9]
In
Mtokonya
,
the dispute was whether the prescription period should be calculated
from the date of the applicant’s release from detention
or when
he realised that he had a cause of action. The court held that
prescription started running after the applicant’s
release from
detention.
Mtokonya
is distinguishable from the facts of this case in that the applicant
was detained for a period longer than 48 hours before being
taken to
court and was thereafter released. In this case, it did not end with
the arrest and detention of the plaintiff, but he
was charged, he
appeared in court, charges were provisionally withdrawn, reinstated
and permanently withdrawn.
[10]
I was also referred by counsel for the defendant to the SCA judgments
of
Eskom
v Bojanala Platinum District Municipality & another
[3]
and
Truter
& another v Deysel
[4]
as well as various other judgments as authorities for the contention
by the defendant that the question of prescription arises
when the
creditor claimant has knowledge of facts from which the ‘debt’
arises. It was strongly argued on behalf of
the defendant that
prescription started to run from the date of arrest and that this was
in line with s 12(3) of the Act.
[11]
On the other hand, the plaintiff’s replication is that
prescription started to run only upon the final withdrawal of
the
charges against the plaintiff on 26 September 2006, as the plaintiff
was only able to acquire knowledge of the complete cause
of action
after the charges were withdrawn, and his claim/debt became due and
payable thereafter.
[12]
Section 12 of the Act provides when prescription begins to run. It
states as follows:
‘
(1) Subject to the provisions
of subsections (2), (3), and (4) 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: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired it
by exercising reasonable
care.
(4) …….’
[13]
The Act does not define the word ‘debt’, but the term is
often given a general meaning and includes a ‘debt’
resulting from a delict. In terms of s 12(1) prescription commenced
when the ‘debt’ is ‘due’. The terms
‘due’
has been interpreted, to mean that for prescription to run, there
must be a ‘debt’, whereby a debtor
is under an obligation
to perform immediately. However the creditor must have knowledge of
the debtor and of the facts from which
the ‘debt’ arises.
Prescription extinguishes a ‘debt’ being anything that is
owed or ‘due’.
The word ‘debt’ refers to the
claim and not the cause of action. In general, prescription begins to
run as soon as
the ‘debt’ is ‘due’,
unless
the ‘debt’ is the result of a continuing wrong
.
[5]
It must be immediately claimable by the creditor in legal
proceedings.
[14]
In
Truter
& another v Deysel,
[6]
the SCA dealt with the
running of prescription in respect of a claim for damages for medical
negligence. It held as follows:
‘
[16] …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.’
…
[17] … “the combination
of
facts
that are material for the plaintiff to prove in order to succeed with
his action.’
[15]
In my view, each case needs to be decided on its own facts. The
question is therefore whether at the time of the plaintiff’s
arrest and release from detention the ‘debt’ was ‘due’,
for the plaintiff to institute legal action. In
this case the
plaintiff was admitted to bail on the day of arrest, was caused to
appear in court several times until the provisional
withdrawal of
charges. Charges were reinstated up to the time of its final
withdrawal. I accept the submission of plaintiff’s
legal
representative that when charges were still pending, the plaintiff
did not have full facts of the ‘debt’, as
the plaintiff
did not have access to the contents of the dockets, as the matter was
still being investigated.
[16]
In this case the plaintiff was charged with twenty counts of fraud
and corruption. The charges did not materialise to a trial,
until
they were finally withdrawn. It is my view that the ‘debt’
was a continuing wrong, unlike in the
Mtokonya
case. It culminated into a single ‘debt’. Therefore
prescription could not have been running in a piecemeal fashion,
as
the wrong was continuing.
[17]
In
Links
v MEC for Health, Northern Cape,
[7]
the Constitutional Court extensively analysed s 12(3) of the Act,
finding that prescription did not begin to run on the approximate
date when Mr Link’s thumb was amputated,
but
the date on which he had knowledge of all the facts that caused his
thumb to be amputated. He could only have acquired these
facts when
he consulted and gained access to medical records
.
[8]
This judgment emphasises that a ‘debt’ will only be ‘due’
when the creditor has knowledge of the debtor
and the facts from
which the ‘debt’ arose. This judgment supports the
contention raised on behalf of the plaintiff,
that he could not have
access to the docket whilst the matter was still under investigation.
[18]
In
Links
,
the Constitutional Court had considered the
Truter
judgment in arriving at its conclusion. I am of the view that a
knowledge of the full facts was required by the plaintiff to proceed
with the action. The plaintiff’s claim is also based on a
continuing wrong, which includes the arrest, detention and malicious
prosecution. These could not be separated from each other.
[19]
Accordingly, I make the following order:
The
special plea is dismissed with costs.
___________________
MBATHA
J
Date
of hearing: 28 May 2018
Delivered
on: 29 May 2018
Appearances
For
the Applicant: Adv NG Winfred
Instructed
by: N.G. Pillay and Company
86
Silverglen Drive
Silverglen
Chatsworth
For
the Defendant: Adv NM Naidoo
Instructed
by: State Attorney
KwaZulu-Natal
6
th
Floor
Metropolitan
Building
391
Anton Lembede Street
Durban
[1]
68 of 1969.
[2]
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC) para 37.
[3]
[2005] 3 All SA 108 (SCA).
[4]
2006 (4) SA 168 (SCA).
[5]
My emphasis.
[6]
2006 (4) SA 168 (SCA)..
[7]
[2016] ZACC 10.
[8]
My emphasis.