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[2014] ZAFSHC 112
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Mogwase v Minister of Safety and Security and Another (856/2008) [2014] ZAFSHC 112 (8 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 856/2008
In
the matter between:-
PASEKA
FRANCE MOGWASE
…............................................................................................
Plaintiff
and
THE
MINISTER OF SAFETY & SECURITY
….........................................................
First
Defendant
MEC
FOR SAFETY & SECURITY
(FREE
STATE PROVINCIAL DEPARTMENT
…..................................................
Second
Defendant
JUDGMENT
BY:
MOLEMELA, J
HEARD
ON:
5, 6 & 8 AUGUST 2014
DELIVERED
ON:
8 AUGUST 2014
INTRODUCTION
[1]
The plaintiff instituted action against the defendant for payment of
damages arising from an incident that occurred on or about
7 February
2005. The plaintiff alleges that members of the South African
Police Services unlawfully shot him in his neck,
shoulder, forearm
and thigh, as a result of which he sustained various injuries.
[2]
The defendant defended the action and filed a special plea of
prescription. The minutes of a meeting held in accordance
with
the provisions of Rule 37 of the Uniform Rules of Court reflect that
the parties agreed that the adjudication of the special
plea should
be separated from the determination of liability and quantum. I
accordingly granted an order separating the disputes
as contemplated
in Rule 33(4). This judgment is therefore only in relation to the
special plea.
[3]
No evidence whatsoever was adduced by any of the parties and no
bundle of documents was handed up as an exhibit. The judgment
is thus based only on the pleadings and the submissions presented to
me by both counsel.
[4]
In terms of section 11(d) read with section 12(1) of the Prescription
Act 68 of 1969 (“
Prescription Act&rdquo
;), civil debts
prescribe three years from the date the debt is due.
Section
12(3)
of the
Prescription Act delays
prescription in certain
circumstances. It provides as follows:
“
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.”
[5]
Mr Mene, on behalf of the defendant, contends that prescription
started running on day of the shooting, i.e. 7 February 2005
and
maintains that the said date is the date on which the debt arose for
purposes of
section 12.
He submitted that it is evident from
the particulars of claim that the facts from which the debt became
known to the plaintiff
on 7 February 2005.
[6]
The issue is whether the plaintiff’s claim has prescribed.
[7]
It is common cause that summons was served on the defendant on 19
February 2008. Mr Mene contends that if consideration
is paid
to the fact that the shooting incident happened on 7 February 2005,
it is clear that service of the summons occurred outside
the three
year period contemplated in
section 11(d)
read with
section 12(1)
of
the
Prescription Act.
[8
]
Mr Cilliers submits that it is clear from the plaintiff’s
replication to the special plea that prescription did not start
running on 7 February 2005 as the plaintiff was hospitalised
immediately after the shooting, and had to undergo a number of
medical
procedures and was in sedation until his discharge on 28
February 2005. Mr Cilliers contends that prescription only started
running
after the plaintiff’s discharge from hospital, the
effect thereof being that service of the summons occurred within the
three
year period envisaged in the aforesaid section of the
Prescription Act, with
the result that the plaintiff’s claim
has therefore not become prescribed.
[9]
The plaintiff’s replication boils down to an assertion that
before 24 February 2005 he, due to the continuous administration
of
sedatives while he was in hospital, not in a position to know the
essential facts of the claim, including the assault, which
is the
basis of his claim. It is apt to quote verbatim from the plaintiff’s
replication, which reads as follows:-
“
1.1
The Plaintiff denies that his claim has become prescribed.
1.2 The Plaintiff
specifically pleads:
1.2.1 That he was
admitted to hospital on 7 February 2005 in an unconscious
state/critical condition following the assault on him
and the
injuries he sustained;
1.2.2 That he
remained unconscious/sedated,
alternatively
was his cognition
seriously affected, as a result of the administration of medication
and the performance of various procedures,
for an extended period of
time up and until at least 24 February 2005 whereafter he was
discharged from hospital on or about 28
February 2005;
1.2.3 That he was
only able to determine the essential facts relating to his assault,
the extent of his injuries sustained and his
prognosis, at the
earliest following his discharge from hospital on 28 February 2005
alternatively
only after 24 February 2005;
1.2.4 That the debt
(the Plaintiff’s damages) only became due as contemplated in
Section 12(1)
of the
Prescription Act, 68 of 1969
after determination
thereof by the Plaintiff following his discharge from hospital on
28
February 2005
alternatively
only after 24
February 2005
;
1.2.5 That the
summons was served on the First and Second Defendants on
19
February 2008
;
1.2.6
That the period calculated from date of discharge from hospital, i.e.
28 February 2005
alternatively
24 February 2005
to
19
February 2008
is less than three years
and therefore has Plaintiff’s claim not become prescribed.”
[10]
Mr Cilliers, contends that the special plea ought to be determined on
the basis of the pleadings as they stand bearing in mind
where the
onus in respect of the special plea lies. It is evident from
the minutes of the
Rule 37
conference that the parties were agreed
that the defendant accepted the duty to begin and the onus of proof
in respect of the special
plea in accordance with trite principles
regarding the onus in respect of the special plea.
[11]
During my engagement with counsel I asked them to address me on
whether they want this court to decide the special plea purely
on the
basis of pleadings without a shred of evidence having been adduced
and they assured me that they both wanted to proceed
on that basis.
[12]
Mr Mene contended that although the overall onus in respect of the
special plea was on the defendant, the plaintiff carried
the
evidentiary burden in respect of the replication and he had
accordingly failed to prove that he was unconscious or sedated
at
some stage and that this interrupted the running of prescription.
[13]
In
McLeod
v Kweyiya
[1]
the respondent was injured in a motor vehicle accident when she was 3
years old and a claim was instituted on her behalf by an
attorney on
her mother’s instructions. The claim was settled when the
respondent was 13 years old. She became
aware of the settlement
amount fortuitously when she was 25 years old. She instituted a
claim against the attorney who had
lodged the claim with the Road
Accident Fund, alleging that the settlement was a significant
under-recovery of her damages and
that the acceptance of the offer by
the attorney in question constituted negligence. The respondent
stated in her particulars
of claim that she only became aware of his
negligence when she consulted her attorneys, at which stage she was
already 25 years
of age. The attorney’s special plea of
prescription was dismissed by the High Court. On appeal, the
Supreme Court
of Appeal considered whether the respondent could
reasonably have known facts from which her debt against the attorney
arose before
the date she claims she first became aware of it and
secondly, whether an adverse inference should be drawn from the
respondent’s
failure to give evidence about her state of mind,
circumstances or conduct during that period. As to the first
issue the
court held that the question was not whether she could or
could not have obtained the documents from her mother or the attorney
but whether she was negligent or innocent in failing to do so.
The court concluded that there was no basis to arrive at a
conclusion
that the respondent had been negligent.
[14]
In respect of the second issue the court found that where there is no
evidence to rebut, no negative inference ought to be
drawn from the
creditor’s failure to testify. The court emphasised that
in order to invoke
section 12(3)
of the
Prescription Act either
actual or constructive knowledge must be proved.
[15]
I am aware of the fact that the facts of this case are
distinguishable to those of the Macleod case. The principles
reiterated
in that case are applicable all cases involving the proof
of actual or constructive knowledge and are thus equally applicable
to
this case.
[16]
It was contended on behalf of the defendant that the plaintiff had
actual knowledge of all the facts and the identity of the
plaintiff
on the date of the shooting. This, notwithstanding the content
of the replication, in terms of which the plaintiff
asserted that he
was only able to determine the essential facts relating to his
assault, injuries and prognosis after his discharge
from hospital on
28 February 2005, alternatively on 24 February 2005.
[17]
Mr Mene contended that since the plaintiff had not adduced evidence
to show his mental condition while he was in hospital,
he acquired
knowledge of the facts and thus of the debt on the date of the
shooting, from which date prescription started to run.
This argument
clearly misconceives the evidentiary burden.
[18]
It is apt to quote verbatim from the Macleod judgment on the aspect
of the evidentiary burden. The court stated as follows
at paragraph
[10]:
“
This
court has repeatedly stated that a defendant bears the full
evidentiary burden to prove a plea of prescription, including the
date on which a plaintiff obtained actual or constructive knowledge
of the debt. The burden shifts to the plaintiff only if the
defendant
has established a
prima facie
case.”
[19]
It is clear that the burden to prove actual knowledge of the facts
was on the defendant. I have already alluded to the fact
that the
defendant adduced no evidence in these proceedings. Clearly
then, the defendant has not established a
prima
facie
case, with the result that the
burden did not at any stage shift to the plaintiff. The fact
that the plaintiff adduced no
evidence is therefore of no
consequence.
[20]
The appropriate order is to dismiss the special plea. There is
no reason for a deviation from the ordinary rule that
the costs must
follow the result.
ORDER
[21]
The special plea is dismissed with costs.
____________________
M.
B. MOLEMELA, J
On
behalf of the plaintiff: Adv. H. J. Cilliers
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of the defendants: Adv. B. S. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
2013
(6) SA 1
(SCA)