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[2014] ZAGPPHC 104
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Van Vuuren v Miister of Safety And Security and Another (50994/2008) [2014] ZAGPPHC 104 (12 March 2014)
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 50994/2008
DATE: 12 MARCH 2014
In the matter between:
JOHANNES PETRUS JANSEN VAN
VUUREN
...........................................................
Applicant
v
THE MINISTER OF SAFETY AND
SECURITY
..................................................
1
st
Respondent
THE COMMISSIONER OF
POLICE
...................................................................
2
nd
Respondent
DATE OF HEARING: 6 February 2014
DATE OF JUDGMENT: 12 March 2014
JUDGMENT
MALINDI AJ
INTRODUCTION
[1]
This matter has a very convoluted
history. However, the real question is merely whether the plaintiff’s
claim has prescribed.
[2]
The plaintiff pleads that he was
arrested without a warrant of arrest on 28 June 2002 by members of
the South African Police Service
("SAPS”), who were acting
within the course and scope of their employment within the SAPS.
[3]
He was detained at Hercules Police
Station at the instance of a Mr Steenkamp of the SAPS and other
members. He was detained from
20h30 on 28 June 2002 until 1h00 on 29
June 2002.
[4]
He was transferred from Hercules to
Adrian Vlok Police Station at 1h00 on the same day. He remained in
detention at the Adrian Vlok
Police Station for another 7 days.
[5]
He had in his possession his briefcase
and a luggage bag.
[6]
The plaintiff was brought before a
Magistrate for the first time on 5 July 2002 but the prosecutor
ordered his release before his
appearance.
[7]
He alleges that his briefcase and
luggage bag were returned without their contents, including his
identification document, passport,
drivers licence, cellular
telephone and all his business documents including original
international trade contracts,
[8]
The plaintiff claims a total amount of
R18 500 000,00 for damages and damages suffered as a result of loss
of business.
[9]
The summons was issued on 31 October
2008. He aiieges that he had issued a summons in 2002 and that all
documents related to the
2002 court file have been lost.
[10]
When the defendant pleaded in February
2009 it pleaded a special plea of prescription of the claim in terms
of section 11 of the
Prescription Act 68 of 1969 (the Act). It also
pleaded over,
[11]
This matter is before me because the
plaintiff seeks condonation for the late delivery of his summons in
the event that I hold that
the October 2008 summons is in respect of
a prescribed claim.
[12]
The plaintiff testified as follows:-
12.1.
He was assisted by Legal Aid SA to issue
the notice in terms of S57 of the South African Police Service Act 68
of 1995 (the Police
Act) on 8 October 2002. This constituted a demand
that the defendant pays damages suffered as a result of unlawful
arrest and detention
and special general damages.
12.2.
Summons was issued in 2002. In November
2003 the State acknowledged receipt of the summons and indicated that
it wished to settle
the matter.
12.3.
A year passed since he was told that the
matter would be settled and that it needed to be set down so that the
settlement agreement
could be made an order of court. He was even
asked to open a bank account for the purpose of paying in the amount.
12.4.
He discovered in 2005 that the whole
court file had been lost. In between the tender to settle and the
loss of the court file, he
had been running from pillar to post
trying to have his money paid over. He was told that the State
Attorney who handled his file
had gone on leave or on pension. In
2006 the Bar made counsel available to assist him but he withdrew
from the matter as he was
emigrating to England and the next counsel
could not assist him immediately because he had a commitment in the
Constitutional Court.
12.5.
On 20 November 2006 the plaintiff
directed a letter to Judge Snyders of the South Gauteng High Court
setting out the facts of his
arrest. He also stated in this letter
that he discovered in
2005 that the State Attorney handling his file
had retired and that the file could not be recovered.
12.6.
In 2006 he was given legal assistance in
terms of Rule 40, that is, informa pauperis representation. He
complained that the appointed
attorneys had not attended to his
matter as he
wrote.
12.7.
After making enquiries with the State
Attorney he was advised to apply for condonation as his matter had
prescribed. He asked the
judge to give condonation.
[13J Snyders J responded on 30 November 2006
that it appeared that the plaintiff seeks condonation and advised the
Registrar that
he/she advise the plaintiff accordingly.
[14]
On 20 February 2007 the plaintiff lodged
a condonation application on an urgent basis. He sought condonation
on the grounds that
the Legal Aid Board attorney had been negligent
in handling his matter.
[15]
On 27 February 2007 he withdrew the
application because it had been lodged in the SGHC whereas the
summons had been issued out of
the NGHC. The State Attorney
considered the matter as finalized and closed the file.
[16]
On 2 September 2008 the Registrar of the
NGHC appointed a firm of attorneys to represent the plaintiff informa
pauperis.
[17]
In September 2008 Klinkenberg Inc
applied for leave to sue informa pauperis on behalf of the plaintiff
and Ms Kinghorn, who appeared
for the plaintiff agreed to represent
him on this basis.
[18]
Five years have passed since then. The
plaintiff testified that he had taken the matter up with the
Constitutional Court as well.
He was advised by the Registrar that
the Constitutional Court is a court of last resort and that he must
pursue this matter in
the High Court.
[19]
The plaintiff also corresponded with the
Chief Justice in an “Application for Request”. He refers
to the matter having
been set down for 24 March 2011 and requests the
Chief Justice to hold appointed Counsel in terms of Rule 40 to the
brief.
[20]
The matter was struck off the roll on 24
March 2011 because counsel had withdrawn.
[21]
Under cross examination the plaintiff
testified that the mooted settlement agreement was merely an
agreement that the matter should
be settled and there were no terms
of the settlement stipulated. He agreed that there was no settlement
but only an indication
by the State Attorney of its preparedness to
settle.
[22]
He testified that he reissued summons in
2008 because the 2003 summons had been lost in the circumstances
dealt with above.
[23]
Section 11
of the
Prescription Act
provides
that:
“ 11 Periods of prescription of debts
The period of prescription of debts shall be
the following:
(d) save where an Act of Parliament provides
otherwise, three year in respect of any other debt."
[24]
Section 12 of the Act provides that
prescription commences to run as soon as the debt is due.
[25]
Judicial interruption of prescription
occurs by the service on the debtor of any process whereby the
creditor claims payment of
the debt. If the debtor acknowledges
liability during the period of judicial interruption and the creditor
does not prosecute his
claim of final judgment, prescription shall
commence to run afresh from the day on which the debtor acknowledges
liability.
1
[26]
In this case the plaintiff alleges, and
it is common cause, that he issued the demand and notice of intention
to sue if the claim
is not admitted on 8 October 2002 and the summons
in 2003. This
1
Prescription Act, S15(l), (2) and
(3)
interrupted
the running of prescription. In addition, he alleges that the State
Attorney indicated its preparedness to settle the
matter. An
inference can be drawn that liability was admitted. In the
circumstances prescription would have commenced to run afresh
from
November 2003 because the plaintiff has not prosecuted his claim to
finality.
[27]
In order to prosecute his claim to
finality the plaintiff had to have the admission of liability made an
order of court and the
determination of the damages postponed to a
later date, or have the whole settlement agreement made an order of
court with or without
an admission of liability.
[28]
Nearly five years passed before the
plaintiff took further steps to prosecute his claim. Therefore his
claim is hit by prescription.
I am mindful that his attempts were
frustrated.
[29]
On 20 February 2007 he lodged a
condonation application in respect of the 2003 summons. This was
three years after the admission
of liability by the State. This
application was withdrawn because it was brought in the wrong court.
His claim prescribed in respect
of the first summons as a result.
[30]
Thereafter the current application was
launched for the condonation of the late issue of the 31 October 2008
summons. This had been
done some five years after the new summons was
issued.
[31]
From at least November 2003 ten years
have passed before this application was brought. Five years have
passed since the new summons
was issued in October 2008.
[32]
Although there is great doubt that the
acknowledgment of liability testified to by the plaintiff went as far
as constituting a debt,
I will proceed on the assumption that there
was one. Debt as been defined as meaning that there is “a debt
immediately claimable
by the debtor or, as stated in another way,
that there had to be a debt in another way, that there has to be a
debt in respect
of which the debtor is under an obligation to perform
immediately.’’
[1]
[33]
The interruption lapses if the action is
not successfully prosecuted to final judgment.
[2]
[34]
The fact that the plaintiff laboured
under the impression that the matter would be settled does not help
him. Prescription would
have commenced from November 2003 and despite
all the happenings thereafter the defendant would not be estopped
from raising
prescription as a defence at this stage. In
African Oxygen Ltd v Secretary, Customer & Exercise,
[3]
it was said:
“Lastly, Mr Osborn contended that the
respondent had lost its right to raise the defence of prescription by
reason of waiver
or estoppel. In the course of argument reliance upon
waiver was abandoned, but reliance on estoppel was not. Counsel was
able to
point to no representation by the respondent upon which the
applicant had acted to its prejudice; but he contended that there was
an estoppel because at one stage, when a conflict of views had arisen
between the applicant and the respondent as to the payability
of
duty, there were discussions about the matter and the applicant was
led to believe that, as counsel put it, ‘‘there
would be
an endeavour to settle the matter”. I am unable to see how that
can estop the respondent from raising the defence
of prescription. It
is a matter of common experience that endeavours are made between
persons who later become plaintiffs and defendants
to settle claims
of various kinds. But that does not suspend the running of
prescription or estop the defendant from replying upon
it if the
settlement negotiations fail and proceedings are instituted.’’
[35]
In Road Accident Fund v
Mothupi
[4]
it was said:
“[37] For a variety of reasons the
question posed must in my opinion be answered in the negative. In the
first place an acknowledgment
of liability for the purpose of
s 14
of
the
Prescription Act is
a matter of fact, not a matter of law. Thus
it
was stated in Agnew v Union and South West
Africa Insurance Co Ltd
1977 (1) SA 617(1)
SA 617(A) at 623A-B:
“Of daar in 'n bepaalde gevai ’/?
erkenning van aanspreeklikheid was, is ’n feitlike vraag wat
betrekking het
op die bedoeling van die persoon wat as skuldenaar
aangespreek is. In die verband het BROOME, R.P., die volgende gese in
Petzer
v. Radford (Pty.) Ltd.,
1953 (4) SA. 314
(N) op 317 en 318:
To interrupt prescription an acknowledgment by
the debtor must amount to an admission that the debt is in existence
and that he
is liable therefor.' ”
It is by no means inconceivable that in a
particular case the Fund may be disposed, either because of
difficulties of proof or because
the amount in issue is not
substantial, not to contest negligence, without necessarily admitting
or conceding that the insured
driver was in fact wholly or partly to
blame for the collision.
[38] Secondly, and more importantly, the
dictum, presented as a statement of law, is against the tenor of
authority. It is inconsistent
with Benson and Another y Walters and
Others 1984 (1) S/4 73 (A) to which no reference was made in the
judgment. That case expressly
approved the dictum from Petzer v
Radford (Pty) Ltd, quoted in the passage cited above.
It was also approved in the earlier case of
Markham v South African Finance & Industrial Co Ltd 1962 (3) S/A
669 (A) at 676E-F.
The debt In question is the payment of an amount
of compensation to an injured party in accordance with the provisions
of the Act.
An acknowledgement of negligence on the part of the
insured driver, coupled with a willingness to seek a settlement of
the Quantum
if such can be reached, is not an acknowledgment of the
existence of a debt or of a present liability (cf Markham’s
case,
supra, at 676F; Benson and Another v Walters and Others, supra,
at 87C-D); at most it is
an acknowledgment of a potential liability if
certain conditions are fulfilled (a settlement of the quantum),
failing which litigation
would have to follow. In Benson’s
case, supra, the majority of the court at 86H put it on the footing
that the Act “requires
an acknowledgment of liability
(‘aanspreeklikheid) and not merely an acknowledgment of
indebtedness”. And in the minority
judgment, in that case, it
is further stated at 90G:
“For an acknowledgment of the debt to be
effective as an interruption of prescription it is not necessary that
it should be
quantified in figures. It is sufficient if it is capable
of ascertainment by calculation or extrinsic evidence without the
further
agreement of the parties”.
In this case there is not even common ground on
a minimum amount which is acknowledged by the Fund. The admission, in
short, must
cover at least every element of the debt and exclude any
defence as to its existence. An admission relating solely to the
negligence
of the insured driver does not comply with that
requirement.” (My emphasis).
[36]
I am therefore satisfied that the
application stands to be dismissed for the reason that the plaintiff
failed to prosecute his claim
to final judgment from November 2003.
The same reasoning applies to the 2008 summons.
[37]
The Act is designed to promote certainty
in the affairs of people and is aimed at fairness towards a debtor.
6
[38]
I make the following order:
6
Christie: The Law of Contract in
SA (6
th
Ed) LexisNexis 2011
1.
The application for condonation of the
late issue of the
summons dated 31 October 2008, is dismissed.
2.
No order as to costs.
SIGNED AT PRETORIA ON THIS 12
th
DAY OF MARCH 2014
MALindi
Acting Judge of the High Court Appearances:
For Applicant:
Adv G Kinghorn
Instructed by:
Klinkenberg Inc.
For Respondent:
Adv M.S. Mangolele
Instructed by:
State Attorney
[1]
Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe
Hellerman Deutsch (Pty) Ltd 1991 (1)
SA
525 (A] at 532 H
[2]
Silhoutte Investment Ltd v Virgin Hotels Group Ltd
2009 (4) SA 617
(SCA) [42]
[3]
1969 (3) SA 391 (T)
[4]
2000 (4) £4 38 (SCA] at [37] and [38]