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[2018] ZAECMHC 7
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Mmangweni v Minister of Police (1915/16) [2018] ZAECMHC 7 (8 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 1915/16
Heard
on: 31/01/18
Delivered
on: 08/02/18
In
the matter between:
NTABOZUKO
MMANGWENI
Plaintiff
and
MINISTER
OF POLICE
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
This matter concerns compliance, or otherwise, of the Plaintiff’s
legal advice with the provisions of s 12 (3) of the
Prescription Act
68 of 1969 (the Act). It is so because the Plaintiff did not
institute his action for damages which is alleged
to have arisen from
assault committed by the employees of the Defendant on 17 July 2008
at Maqanyeni Locality, Sibangweni Administrative
Area that is
situated in the district of Libode. In terms of s 11 (
d
)
of the Act such a claim becomes prescribed if it is not brought
within a period of three years.
[2]
The provisions of s 11 of the Act read as follows:
“
The periods
of prescription of debts shall be the following:
(a)
thirty
years in respect of─
(i)
any
debt secured by mortgage bond;
(ii)
any
judgment debt;
(iii)
any
debt in respect of any taxation imposed or levied by or under any
law;
(iv)
any
debt owed to the State in respect of any share of the profits,
royalities or any similar consideration payable in respect of
the
right to mine minerals or other substances;
(b)
fifteen
years in respect of any dent owed to the State and arising out
of an advance or loan of money or a sale or lease of
land by the
State to the debtor; unless a longer period applies in respect of the
debt in question in terms of paragraph (a);
(c)
six
years in respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless
a longer
period applies in respect of the debt in question in terms of
paragraph (a) or (b);
(d)
save
where an Act of Parliament provides otherwise, three years in respect
of any other debt.”
And
the provisions of s 12 (3) of the same Act read:
“
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.”
(underlining is mine
for my emphasis).
[3]
Initially the special plea of prescription was raised for
consideration at the trial of the action in which oral evidence would
first be led and evaluated before the Court makes a decision.
However on the day of trial on 30 January 2018 both parties
approached the Court with a stated case prepared in terms of Rule 33
of the rules of this Court and asking that the determination
of the
special plea be made separately from all other issues of the case;
and that the Court do so without hearing evidence.
[4]
As is stated in
Mtokonya
v Minister of Police
(CCT
200/16)
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC) (19 September 2017)
the ambit of a hearing and the manner in which a court decides the
cases under Rule 33 are delineated
by the provisions of Rule 33
themselves. In this regard the Constitutional Court stated as
follows at para [15]:
“
From rule 35
(5) it is clear that the decision of the court is required to be
“upon any question in terms of this rule.”
As I
have said, the reference to the “question in terms of this
rule” in rule 33 (5) is a reference to the question
or
questions of law that the parties have submitted to the court for a
decision. A court that is called upon to decide a
special case
under rule 33 is required to decide the question of law presented to
it and has no right to travel outside the four
corners of the agreed
statement and decide a different question that it wishes the parties
had submitted to it to decide but did
not or that it may wish the
parties have included as one of the questions of law they had
submitted to it to decide but did not.”
[5]
What the provisions of Rule 33 (1) and (2) compel the parties to do
in a stated case is to set forth the: (i) facts agreed upon
,
(ii) the questions of law in dispute between them and their (iii)
contentions thereon. I proceed to list these items as they
appear in the stated case in this matter:
(i)
The
agreed facts:
The
plaintiff is an adult male person aged 54 years. On 17 July
2008 whilst he was in his homestead certain employees of the
Defendant assaulted him. Aggrieved by the unlawful conduct of
the employees, on 08 July 2008 he went to Libode Police Station
to
lay a criminal charge with the result that a docket was opened under
CAS 73/07/2008. On 08 August 2008 he proceeded to
report the
matter to the Independent Complaints Directorate. At the
beginning of 2016 the Plaintiff met one Mr Zolile Nontswabu,
a
registered Attorney; who advised the Plaintiff that he had a right to
sue the police for damages for unlawful and wrongful assault.
On 02 June 2016 the Plaintiff issued and served summons against the
Defendant.
(ii)
The
question of law in dispute:
The
parties seek a determination of the question whether the Plaintiff’s
claim has become prescribed or not.
(iii)
The
contentions:
For
the Plaintiff:
Before
meeting Mr Nontswabu in 2016 the Plaintiff did not know that there
was in existence a debt owed to him; the Minister of Police
was the
co-debtor; the facts giving rise to the debt and that he had a right
of civil law suit against the police. He contends
further that
the provisions of s 11 of the Act relied upon by the Defendant ought
to be declared invalid to the extent that a 3
year extinction period
gives to the Plaintiff insufficient time within which to lodge a
claim arising from violation of a constitutionally
protected right in
s 12 (
c
)
of the Constitution against violence committed by the members of the
SAPS.
For
the Defendant:
It
is contended on behalf of the Minister that the Plaintiff knew about
the existence of the debt; the identity of the debtor; and
the facts
giving rise to the debt. The Plaintiff’s ignorance about
the existence of a right to claim compensation against
the Defendant
does not stop prescription period from running. It is also
disputed that
s 11
of the
Prescription Act is
unconstitutional.
[6]
In argument
Mr
Mhambi,
for
the Plaintiff, conceded that the issue about the unconstitutionality
of s 11 of the Act is for present purposes irrelevant.
The
concession was made consequent upon a debate that had ensued about
the fact that a declaration of constitutional invalidity
of s 11 of
the Act was never foreshadowed in the Plaintiff’s particulars
of claim; and as such is not central to the Defendant’s
special
plea of prescription, especially the applicability of s 12 (3), that
informs the framing of the stated case in terms of
Rule
33.
I derive comfort in the concession made because the constitutionality
point is in any event not a question of law that
has been identified
by the parties for determination by the Court. The question of
law for determination is whether the Plaintiff’s
claim
prescribed or not.
[7]
On the issue of prescription it was submitted on behalf of the
Plaintiff that for the contentions as set out in the stated case
prescription of the Plaintiff’s claim started to run in March
2016 when the Plaintiff was alerted to the fact that he had
a legal
right to claim compensation
from
the Defendant. It was argued strenuously that the case of
MEC
For Education, KwaZulu-Natal v Shange
2012
(5) SA 313
(SCA) is the supporting authority for the Plaintiff’s
case on both points of fact and law.
[8]
Mr
Swana
,
for the Defendant, submitted that the case of
Shange
is distinguishable from the present case on the facts and, therefore,
cannot find application here.
[9]
The application of the case of
Mtokonya
to this case must be put in the correct perspective. In my view
the case of
Mtokonya
gives an answer to the question whether the Plaintiff’s
knowledge in 2016 that he had a right to sue the Defendant
constitute
“the facts from which the debt arises” as envisaged in s
12 (3) of the Act. I found in the case
of
Mtokonya
v
Minister of Police,
Mthatha High Court, C/N 1057/14 dated 23 September 2015 that lack of
knowledge of a legal remedy, as is the case here, does not
stop the
prescription period from running. For this reason, amongst
others, I upheld the special plea of prescription with
costs.
On appeal to the Constitutional Court the following was said at para
[36]:
“
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
legal conclusions that may be drawn from “the facts which the
debt arises
.”
Case law is to the effect that the facts from which the debt arises
are the facts which a creditor would need
to prove in order to
establish the liability of the debtor. In his founding
affidavit in support of his application for leave
to appeal to this
Court, the applicant in effect criticises the fact that section 12
(3) refers only to knowledge of “the
facts from which the debt
arises” and does not also refer to knowledge of legal
conclusions that must be drawn from those
facts. He says in the
affidavit that this creates a lacuna in section 12 (3) and that that
is the question he is asking this
Court to decide, namely, whether
section 12 (3) requires a creditor to also know that the conduct of
the debtor is wrongful and
actionable before a debt may be deemed to
be due or before prescription may begin to run. It is not
necessary to deal with
the third exception which is provided for in
subsection (4) because it does not arise in the present
case.”
[10]
In arriving at the judgment on the interpretation of the meaning of
the term: “the facts upon which the debt arises “in
s 12
(3) of the Act, which is the second part of the subsection,
Constitutional Court in
Mtokonya
applied a plethora of previously decided cases such as:
Fluxman
Inc v Leveson
2017
(2) SA 520
(SCA);
Eskom
v Bojanala Platinum District Municipality
2003
JDR 0498 (T) at para 16.
Truter
v Deysel
[2006]
ZASCA 16
;
2006 (4) SA 168
(SCA)
;
Yellow Star Properties 1020 (Pty) Ltd v MEC; Department of
Development Planning and Local Government, Gauteng
[2009]
ZASCA 25
;
2009 (3) SA 577
(SCA);
Claasen
v Bester
[2011]
ZASCA 197
; 2012 (2) 404 (SCA) and
Macleod
v Kweyiya
[2013]
ZASCA 28
, 2013 (6) SA (SCA).
[11]
The Constitutional Court also dealt with the term: “the
creditor has knowledge of the identity of the debtor” in
s 12
(3) of the Act it referred to the term as being the first part.
In this case the contention that the Plaintiff did not
know the
identity of the co-debtor (the Minister) falls to be examined under
the first part of s 12 (3) of the Act. The Plaintiff
pins his
faith on the case of
Shange
for his contention that he did not know the identity of the
Defendant. To resolve this issue the Court must have regard to
the agreed facts, and then compare the meaning thereof to the facts
in
Shange.
[12]
In evaluating the agreed facts the provisions of Rule 33 (3) become
an injunction. The sub-rule reads as follows:
“
At
the hearing … the court and the parties may refer to the whole
of the contents of such documents and the court may draw
any
inference of fact or of law from the facts and documents as if proved
at a trial.”
[13]
The facts speak for themselves: The Plaintiff’s legal right to
sue the Defendant was at all material times in existence
at the time
of unfolding of the facts giving rise to the cause of action; and
such right, as already found in the matter, did not
prevent
prescription from beginning to run on 17 July 2008. At the time
when the Plaintiff was assaulted he did know as a
fact that the
wrongdoers were the members of the police who had emanated from
Libode Police Station. The reports that the
Plaintiff later on
gave to the police and Independent Complaints Directorate, in the
same month of July in which the assault took
place inferentially
point to the Plaintiff having known the identity of the wrongdoer
(the debtor). For present purposes
I am of the view that a
reference to a co-debtor does not add a new dimension to the
Plaintiff’s case. Consequently,
the factual findings that
are capable to be made from all conceivable scenarios of this case is
that as at 17 July 2008: (a) the
cause of action had crystalized with
the particulars of the debtor being known and (b) the facts from
which the debt arose were
known to the Plaintiff.
[14]
Briefly stated, the facts in the case of
Shange,
supra
,
were that in June 2003 Mr Shange the aged 15 years and 10 months was
injured in the eye by his teacher. In January 2006
a friend of
Shange’s mother advised him to report the matter to the Public
Protector. An advocate in that office advised
Shange that he
had a claim against the MEC for Education, KZN, thus referred him to
an attorney. On 02 February 2006 Shange’s
attorneys
addressed a letter of demand for payment of damages to the Minister
for Education in terms of s 3 (1)(
a
)
of Act 40 of 2002. On 03 December 2008 Shange addressed a
similar letter which was followed by the issuance of summons
commencing action in a court of law. To address the issue of
the late delivery of the letter of demand he also brought an
application seeking condonation in terms of s 3 (4)(
a
)
of Act 40 of 2002. The Minister objected to the claim on the
basis that it had become prescribed to the extent that despite
Shange’s knowledge of the identity of the MEC in 2003 as is
envisaged in
s 12
(3) of the
Prescription Act, he
had failed to bring
the action within the prescribed period of three years. After
finding that Shange gained knowledge of
the identity of the debtor
only in January 2006, the Supreme Court of Appeal held that the claim
had not become prescribed at the
time of issuing of the summons on 03
December 2008. The Supreme Court of Appeal arrived at that
conclusion after taking into
account the fact that Shange had been
caused to understand by his teacher that the circumstances that led
to his injury were a
genuine mistake which exonerated the
teacher
from any legal obligation towards the child. The tender
age of Shange was a factor that was considered, and
so was the legal
principle envisaged in
s 13
(1)(
i
)
of the Act that since Shange attained the age of majority in July
2007 the running of 3 year prescription period that started
in
January 2006 was delayed by a period of one year. In a nutshell
Shange’s claim would have been extinguished by prescription
in
January 2009, the date after 03 December 2008 when the summons was in
fact served.
[15]
As correctly submitted by
Mr
Swana
the facts in
Shange
are distinguishable from the facts of the present case. Shange
was a minor child when he was assaulted by his teacher and
he
believed his teacher that the explanation that the assault was a
mistake put paid to the matter. The belief of the minor
child
was excusable because it was found to be a reasonable consideration.
But the mistake that was committed by the Attorney
of Shange
who wasted time by suing the Minister instead of the MEC was regarded
as unreasonable. In this case the stated
facts prove on a
preponderance of probabilities that the Plaintiff’s delay in
instituting his claim is unreasonable.
As already stated the
explanation he gives that he did not know that he had a right to sue
the Defendant until he was advised by
a lawyer to do so is not
reasonable. The advice that the Plaintiff relied upon is of the kind
that does not fit into neither the
first nor the second part of s 12
(3) as that has been shown by the Constitutional Court in
Mtokonya
.
[16]
I cannot help it but repeat in this judgment the rationale behind the
provisions of s 12 (3) as stated by Maseneke J, as he
was then, in
the case of
Bojanala Platinum District Municipality, supra ,
at para [46] as follows:
“
In
my view there is no merit in the contention advanced 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
nugatory and ineffectual.
Prescription periods would be rendered elastic, open ended and
contingent upon the claimant’s
subjective sense of legal
certainty. On this contention, every claimant would be entitled
to have legal 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.”
[17]
The question of law that the parties raised in their stated case in
terms of Rule 33 must be answered in favour of the Defendant.
That is, the Plaintiff’s claim had already become prescribed on
the date when the summons were issued
on
03 December 2008
by reason that
the legal advice that the Plaintiff received i
n
January
2006 did not stop the prescription period of three years from running
between 17 July 2003 to 16 July 2006.
[18]
The legal principle that the costs follow the result of the matter
finds application in this case.
[19]
In the result the following order shall issue:
1.
The
Defendant’s special plea of prescription is upheld.
2.
The
Plaintiff’s claim is dismissed with costs.
_________________
________________________
Z. M. NHLANGULELA
JUDGE PRESIDENT
OF THE HIGH COURT
MTHATHA
Counsel
for the Plaintiff
: Adv.
M.C. Swana
Instructed
by
G. Nontswabu Attorneys
MTHATHA.
Counsel the
Defendant
:
Adv. M. Mhambi
Instructed
by
: The State Attorney
MTHATHA.