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[2012] ZAECMHC 18
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Mnyaka v Minister of Safety and Security (657/2003) [2012] ZAECMHC 18 (14 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, MTHATHA)
Reportable
Yes
____________________
APPEAL CASE NO: CA51/2012
CASE NO. 657/2003
In the matter between:
ZANDISILE MNYAKA
..................................................................
APPELLANT
and
MINISTER OF SAFETY AND SECURITY
..............................
RESPONDENT
________________________________________________________________
FULL BENCH APPEAL JUDGMENT
________________________________________________________________
D VAN ZYL J:
[1] On 23 July 2003 the appellant commenced an action
for damages against the respondent by issuing a summons. His claim
arises
from injuries he is alleged to have sustained on 19 February
2001 while he was in police custody. It is common cause that the
appellant
was arrested on 18 February 2001 by a traffic officer, a
certain Mate, on a charge of driving a motor vehicle while under the
influence
of intoxicating liquor. Mate placed the appellant in the
custody of police officials at the Mount Frere police station who
detained
him in the holding cells.
[2] The appellant alleges that while in detention, he
was assaulted by unknown persons and sustained certain injuries as a
result.
He was hospitalised and received medical treatment. The
appellant further alleges that his injuries were caused by the
negligence
of the respondent’s employees who in breach of a
legal duty, failed to protect him from harm while he was under their
control.
[3] In terms of the now repealed section 57(1) of the
South African Police Service Act 68 of 1995 (
“the Police
Service Act”)
, it was a prerequisite for the
enforcement of the appellant’s claim that he instituted legal
proceedings before the expiry
of a period of twelve months. The
subsection reads as follows:
“
No legal proceedings
shall be instituted against the Service or any body or person in
respect of any alleged act performed under
or in terms of this Act or
any other law, or an alleged failure to do anything which should have
been done in terms of this Act
or any other law, unless the legal
proceedings are instituted before the expiry of a period of 12
calendar months after the date
upon which the claimant became aware
of the alleged act or omission, or after the date upon which the
claimant might be reasonably
expected to have become aware of the
alleged act or omission, whichever is the earlier date.”
A
further requirement for the institution of legal proceedings was
contained in subsection (2). In terms thereof a claimant could
not
institute legal proceedings before the expiry of
“
at
least one calendar month after written notification of the intention
to institute such proceedings has been served on the defendant,
wherein particulars of the alleged act or omission are contained.”
[4] The appellant admittedly failed
to comply with the requirement in subsection (1). The respondent as a
result raised the appellant’s
non-compliance as a defence by
way of a special plea. In response the appellant filed a replication
wherein he asked the trial
Court to condone his failure to timeously
institute legal proceedings. This request is based on the provisions
of subsection (5)
which empowered a Court to dispense with the
requirements or prohibitions in subsections (1) and (2)
“
where
the interests of justice so required.”
At the
hearing thereof the appellant formally and on notice supported by an
affidavit applied for an order dispensing with the requirements
of
section 57(1) of the Police Service Act.
[5] The issue raised by the respondent’s objection
was tried as a preliminary issue. The Court
a
quo
held that it was not empowered to
consider the appellant’s application and consequently that the
appellant’s claim had
been extinguished by prescription. It
reasoned that subsection (5) could not find application as the whole
of section 57 was repealed
by the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 (
“the
Legal Proceedings Act”)
. The latter Act came into
operation on 28 November 2002. Although, as will be indicated
hereunder, it extended the time period
within which a claimant could
institute legal proceedings against the respondent, the Court
a
quo
held that it could not
“
revive
a dead debt”
. The reason, so the Court found,
lies in the fact that by the time the Legal Proceedings Act came into
operation, the time period
within which the appellant had to
institute legal proceedings as required in section 57(1) of the
Police Service Act, had already
expired. For these reasons the Court
a quo
made an order
upholding the respondent’s special plea, thereby effectively
dismissing the appellant’s claim. It is against
this order that
the appellant now appeals with the leave of the Court
a
quo
.
[6] The appellant has failed to comply with the
provisions of Rule 49(6) of the Uniform Rules of Court in the
prosecution of his
appeal. The result is that the appeal had lapsed.
The appellant has applied for condonation seeking the reinstatement
and enrolment
of his appeal. In my view the appellant has shown good
cause as required by Rule 49(6) for the relief sought. It is well
established
that when an application for condonation is considered
the Court is exercising a judicial discretion based on the interests
of
justice. Whether it is in the interests of justice to grant
condonation depends on the facts and circumstances of each case.
Factors
relevant to this enquiry are
“
the degree of
non-compliance, the explanation for the delay, the prospects of
success, the importance of the case, the nature of
the relief, the
interests in finality, the convenience of the Court, the avoidance of
unnecessary delay in the administration of
justice and the degree of
negligence of the persons responsible for non-compliance are taken
into account. These factors are interrelated,
for example, good
prospects of success on appeal may compensate for a bad explanation
for the delay.”
(Per Snyders JA in
S
v Van der Westhuizen
[2009] 4 All SA 51
(SCA)
at 53d – e. See also
Van Wyk v Unitas
Hospital
(Open Democratic Advice Centre as
Amnicus Curiae
)
2008(2) SA 472 (CC) at 477A – B.)
[7] The appellant explains that the reason for his
failure to comply with Rule 49(6) is that the attorney who
represented him in
the Court
a quo
had failed to carry out his instructions to prosecute
the appeal, despite having assured him that the necessary steps would
be taken.
As a result he was forced to instruct his present attorneys
of record to take the matter over and to apply for condonation.
Although
the appellant’s explanation of what he personally did
in order to ensure that his instructions were timeously carried out
is far from satisfactory, it must be weighed against the importance
which the issue raised in the appeal has for him, as well as
the
prospects of success of the appeal. These two considerations in my
view adequately compensate for the deficiencies in the appellant’s
explanation for the delay.
[8] Turning then to deal with the merits of the appeal,
on a reading of section 57(1) of the Police Service Act it is evident
that
it prescribes a general period of limitation of twelve months
for the institution of legal proceedings against the respondent.
Subsection (1) clearly embodies, what is generally referred to as an
expiry or limitation period. The purpose of provisions of this
nature
is to prevent inordinate delays in litigation which are damaging to
the interests of justice. Delays in litigation are said
to
“
.
. . protract the disputes over the rights and obligation sought to be
enforced, prolonging the uncertainty of all concerned about
their
affairs. Nor in the end is it always possible to adjudicate
satisfactorily on cases that have gone stale. By then witnesses
may
no longer be available to testify. The memories of ones whose
testimony can still be obtained may have faded and become unreliable.
Documentary evidence may have disappeared. Such rules prevent
procrastination and those harmful consequences of it. They thus serve
a purpose to which no exception in principle can cogently be taken.”
(Per Didcott J in
Mohlomi v
Minister of Defence
1997(1) SA 124 (CC) at
129G – 130B.)
[9] Although the nature and effect of a limitation
period coincides with that of extinctive prescription, they have been
held to
be separate concepts. (
Commissioner
for Customs and Excise v Standard General Insurance Company
2001(1) SA 967 (SCA) at 984H – I). As it is not in
dispute that subsection (1) constitutes a limitation period, the
conceptual
basis for the distinction is not of any relevance to the
issues raised in this appeal. (See generally de Wet and Yeats
Kontraktereg
4
th
ed at page 275 and Loubser
Extinctive
Prescription
at page 18 to 21 and page 171 to
176.) The practical importance of the distinction between a
limitation period and prescription
period is that save for certain
common law rules such as
lex non cogit ad
impossibilia,
the general principles relating
to prescription do not find application to a limitation period. (See
Hartman v Minister van Polisie
1983(2)
SA 489(A) and
Montsisi v Minister van Polisie
1984(1) SA 619(A).) The reason is to be found in the
provisions of section 16(1) of the Prescription Act 68 of 1969 (the
Prescription Act). In
terms thereof the provisions of Chapter III of
that Act will apply to all debts save where they are ousted by the
provisions of
an Act of Parliament which is inconsistent and then
only to the extent of the inconsistency. Inconsistent provisions
which will
oust some or all of the provisions of Chapter III of the
Prescription Act are
provisions
“
. . . which (a)
prescribe a specified period within which a claim is to be made; (b)
prescribe a specified period within which an
action is to be
instituted in respect of a debt; or (c) impose conditions on the
institution of an action for the recovery of a
debt.”
(
Moloi
and Others v Road Accident Fund
2001(3) SA
546 (SCA) at 552C – D)
[10]
Section 57(1)
is a provision falling under (b)
above as it determines a specific period in which legal proceedings
were to be instituted by a
claimant. Otherwise than its predecessor
(section 32 of the Police Act 7 of 1958), section 57 not only
extended the prescription
or limitation period to twelve months,
subsection (5) thereof also enables a Court to dispense with the
limitation period and notice
requirement in subsection (1) and (2)
thereof where
“
the interests of justice so require”
.
The differences between these two enactments were dealt with by the
Court in
Minister of Safety and Security v
Molutsi and Another
1996(4) SA 72(A) at 96D –
H. Subsection (5) has been held to grant the Court the power in the
circumstances mentioned to condone
a claimants non-compliance with
the requirements of the section (
Mohlomi v
Minister of Defence
supra at 133D and H –
J).
[11] Because the Court does not
mero
motu
invoke statutory provisions prescribing
time limits for the institution of an action, subsection (5) has the
effect of entitling
a claimant, who has failed to institute its claim
within the required time period, to apply to a Court to exercise its
power to
dispense with the time limitation embodied in subsection
(1). Whether the granting of an application in terms of subsection
(5)
would be in the interests of justice
“
.
. .
in the context in which that expression is used
involves, in my view, essentially a value judgment based on general
considerations
of equity and fairness to both parties, viewed against
the factual matrix of each case.”
(Per Ponnan
JA in
Mugwena and another v Minister of Safety
and Security
2006(4) SA 150 (SCA) at 155B –
C.) It permits the Court to take account of
“
. . .
the claimant’s fault or the lack of that and the prejudice
suffered by the State or its absence . . .”
(Didcott
J in
Mohlomi v Minister of Defence
supra
at 133 I.)
[12] On a reading of subsection (1) it is clear that it
is a condition precedent to the institution of an action against the
respondent
and that the claimant must do so within a period of twelve
months. The sanction for a failure to comply with subsection (1) is
that the claimant is barred from instituting proceedings for the
recovery of the debt. (See
Hartman v Minister
van Polisie
supra and
Minister
of Safety and Security v Molutsi and Another
supra.)
If invoked and proved, it prevents the claimant from enforcing his
claim, thereby effectively exempting the respondent from
performance.
The sanction will be lifted if the claimant applies to a Court in
terms of subsection (5) to condone, in the exercise
of its dispensing
power, his or her failure to timeously institute legal proceedings.
The granting of an order of this nature has
been held to have the
effect of terminating the suspension of the enforceability of the
claim. (
Transnet Ltd v Ngcezula
1995(3)
SA 538(A) at 550C.) The refusal of an application to dispense
therewith on the other hand, is that
“
the claim is in
effect, and in substance, extinguished.
”
(
Transnet
Ltd v Ngcezula
supra at 550D.)
[13] It is common cause that the appellant became aware
on 19 February 2001 of the alleged omission of the servants of the
respondent
to protect him from harm while he was in detention. The
appellant’s claim was consequently liable to become time barred
on
19 February 2002. That date went by without the institution of
proceedings. On 22 November
2002 Act 40
of 2002 was passed. It came
into force on 28 November 2002. A further eight months went by before
the appellant issued summons
on 23 July 2003 claiming damages for the
injuries he is alleged to have sustained in the assault. If the
requirements of section
57(1) are to apply to the appellant’s
claim, the result is that the appellant instituted legal proceedings
one year and five
months late.
[14] Dealing next with the Legal Proceedings Act, it has
as its purpose the regulation of the prescription and the
harmonisation
of the periods of prescription of debts for which
organs of the State are liable. It also makes provision for notice
requirements
in connection with the institution of legal proceedings
against certain organs of State in respect of the recovery of debts,
whatever
their nature. The effect of this Act in relation to section
57 of the Police Service Act was to repeal it in whole and to replace
it with the provisions of chapter III of the
Prescription Act. It
effectively substituted the time period of twelve months with the
periods of prescription applicable to all other debts. Consequently,
the period of prescription applicable to a claim such as that of the
appellant, is in terms of
section 11(d)
of the
Prescription Act
determined
to be three years. Further, in terms of
section 15(1)
of
that Act, the running of prescription shall be interrupted by the
service on a
“
debtor of any process whereby the
creditor claims payment of the debt.
”
Accordingly,
if the provisions of the Legal Proceedings Act are to be found to
apply to the appellant’s claim, his claim would
only have
become prescribed in February 2004, the running of prescription
having been interrupted by the issuing and service of
summons in July
2003.
[15] On these facts, and the legislative background, it
is necessary to consider the effect of the Legal Proceedings Act and
its
repeal of section 57 of the Police Service Act. What is required
is a determination of the intention of the legislature with its
repeal of section 57. The enquiry is essentially aimed at
establishing whether the provisions of the Legal Proceedings Act has
had the result of removing the time bar to the appellant’s
claim, and if not, whether its repeal of section 57 of the Police
Service Act constitutes an obstacle to the appellant in applying, and
for a Court to dispense, as envisaged in subsection (5) of
that Act,
with the requirement relating to the time limitation of twelve
months.
[16] The appellant’s argument is that although the
Legal proceedings Act does not find application to his claim and
cannot
assist him, its repeal of section 57 of the Police Service Act
does not effect his entitlement to apply for condonation in terms
of
subsection (5). In support of this argument the appellant placed
reliance, in my view correctly so, on the provisions of section
12(2)
of the Interpretation Act. The provisions relevant to the present
enquiry read as follows:
“
12(2) Where a law repeals any other law,
then unless the contrary intention appears, the repeal shall not –
. . .
. . .
affect any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed; or
. . .
affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, . . . as is
in
this subsection mentioned, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced
. . .
as if the repealing law had not been passed.”
[17] The purpose of section 12(2)(c) is to preserve the
status
quo
and to prevent any interference with existing rights or
obligations by the repeal of a statutory enactment. (
Transnet
Ltd v Ngcezula
supra at 552G). This conforms
with the common law principle of interpretation that a statute should
not be interpreted as having
retrospective effect unless there is an
express provision to that effect, or that result is unavoidable on
the language used.
“
Repeal legislation is for the
most part directed at matters future rather than matters past.
Pre-repeal business must generally
speaking be dealt with, unless a
contrary intention is apparent, as if no repeal had been enacted.”
(Per Nienaber JA in
Chairman,
Board on Tariffs & Trade v Volkswagen of SA (Pty) Ltd
2001(2) SA 372 (SCA) at 380A – B.) A statute is
retrospective if it
“
. . . takes away or impairs a
vested right acquired under existing laws, or creates a new
obligation, or imposes a new duty, or
attaches a new disability, in
regard to events already past.”
(
Yew
Bon Tew v Kenderaan Bas Mara
[1982] All ER
833
(PC) at 836b –d, quoted with approval by Marais JA in
Minister of Public Works v Haffejee NO
1996(3) SA 745(A) at 752B – C.) A provision that
deals with pre-repeal matters and has, in the context of the present
matter,
the effect of
“
reviving”
or
terminating the right of a claimant to enforce a claim for
compensation, and thereby the claim itself, would therefore be
retrospective
in its operation.
[18] Section 12(2)(c) seeks to prevent retrospectivity
by providing for the protection of
“
accrued”
and
“
acquired”
rights.
The term
“
accrue”
has been
held to have a narrower meaning than
“
acquire”
.
“
A right ‘accrues’ when all the
conditions for its existence in relation to the particular
beneficiary are met (cf
Transnet Ltd v Ngcezula
1995(3) SA 538(A) at 551E – F, 551E – G); a right is
‘acquired’ when all the conditions for its existence
are
met and the particular beneficiary in addition avails himself of the
statutory provision concerned by some individual action
or effort on
his part (
Mohamed NO v Union Government (supra
at
9 – 11)
; Rustenburg Platinum Mines Ltd v Motletlegi
NO and Another
1954(2) SA 597(T) at 603C – H;
Dys
v Dys
1979(3) SA 1170(O) at 1173H – 1175A;
Minister
of Public Works v Haffejee NO
1996(3) sa 745(A) at 754D –
G”.
(
Chairman, Board on
Tariffs & Trade v Volkswagen of SA (Pty) Ltd
supra
at 380E – F.) Applied to the present matter, when the appellant
failed to commence action within the specified time
period, the
respondent acquired the right to resist the appellant’s claim
by pleading a time bar.
“
. . . appellant had acquired
a vested right consisting of immunity from suit in respect of that
cause of action”
(Marais JA in
Minister
of Safety and Security v Molutsi and Another
supra
at 87F. See also
Kettledas NO v Minister of
Law and Order 1998(2) SA 76 (SECLD)
and
Transnet Ltd v Ngcezula
supra
at 551E – F.) Consequently, the repeal of section 57 by the
Legal Proceedings Act would not affect the respondent’s
right
to plead a limitation of action, unless it is to be concluded that it
was the intention of the legislature that the prescription
periods in
the latter Act apply to claims that would otherwise have been
unenforceable due to the limitation provisions in section
57.
[19] Conversely, the appellant had an accrued right in
terms of section 57(5) of the Police Service Act prior to its repeal,
to
apply for and be granted leave to institute proceedings outside of
the twelve months limitation period. The conditions for its existence
were met when the limitation period expired. Further, for purposes of
determining the applicability of section 12(2)(c) the ability
of the
appellant to satisfy the Court that it would be in the interests of
justice to grant condonation must be assumed. (
Transnet
Ltd v Ngcezula
supra at 552A – G.)
Although the wording of subsection (5) is different from that of the
statutory provision considered by
the Court in
Transnet
Ltd v Ngcezula
supra, there is in my view no
reason, and none has been suggested, to ascribe a different meaning
thereto. In giving meaning to
subsection (5) consideration must be
given to the fact that section 57 seeks to place a limitation on the
constitutionally protected
right of the appellant in section 34 of
the Constitution to have any justiciable dispute decided by a Court
of law or, where appropriate,
by another independent and impartial
tribunal or forum (Compare
Mohlomi v Minister
of Defence
supra.) Subsection (5) forms an
inextricable part of the scheme of section 57 namely to, in contrast
with the repealed section 32
of the Police Act 7 of 1958, regulate
the ability of a claimant to enforce his or her right of action in a
less rigid manner which
is more consistent with the dictates of
section 34 of the Constitution.
[20] Accordingly, to find as the Court
a
quo
did, that the repeal of section 57 had
deprived it of its power to consider an application to dispense with
the requirement in subsection
(1), would result in effectively
depriving the appellant of an accrued right in respect of which a
legal proceeding is necessary,
as envisaged in section 12(2)(c) and
(e) of the Interpretation Act. The denial of the right to apply for
and be granted condonation
means that the appellant’s right to
enforce his claim for compensation and the claim itself are, in the
words of Botha JA
in
Transnet Ltd v Ngcezula
supra at 550D, in effect and substance extinguished.
[21] The next question is whether by the promulgation of
the Legal Proceedings Act and its of its repeal of section 57 of the
Police
Service Act, the legislature intended to deprive the
respondent of a defence based on non-compliance with the time
limitation in
section 57(1), and the appellant of his right to apply
for condonation for such failure in terms of section 57(5). It has,
in my
view quite correctly so, not been submitted that there is
anything in the language used and the context of the Legal
Proceedings
Act that points to a
“
contrary intention”
as envisaged in section 12(2) of the Interpretation Act.
The Act does not propose to affect any existing rights which arose as
a
consequence of the expiry of a limitation period. The reason lies
in sections 1(2)(a) and 2(1) thereof. Section 1(2)(a) provides
that
the Act does not apply to any debt
“
which has been
extinguished by prescription before the fixed date,”
while
section 2(1) simply and without qualification repeals section 57 of
the Police Service Act. Although it speaks of
“
period
of prescription”
and
“
extinguished
by prescription”,
it is evident on a reading
of the Act that it was the intention of the legislature for it to be
inclusive of all claims against
the State, the institution whereof
are regulated by the laws repealed in section 2(1) thereof. This Act
was clearly designed, as
the preamble thereto suggests, to
rationalise all the laws applicable to the institution of legal
proceedings against the State
in respect of the recovery of debts,
and to provide for transitional arrangements. Terminology therein
that is more relevant to
extinctive prescription must therefore not
be given a technical or a restricted meaning, but must be read so as
to also include,
what is categorised as expiry or limitation periods,
such as that contained in the now repealed section 57(1) of the
Police Service
Act. The Legal Proceedings Act is accordingly in my
view not retroactive in operation and has no application to a claim,
the enforcement
of which was barred before it came into operation.
[22] It accordingly follows that the appellant’s
right to apply and be granted condonation for his failure to comply
with
the requirements of section 57 of the Police Service Act
survived its repeal, and that the Court
a quo
erred in
upholding the respondent’s special plea. It should have
considered the application by the appellant in terms of
section 57(5)
for an order dispensing with the requirements of section 57(1) of the
Act. For these reasons the following order
is made:
The appeal is allowed with costs.
The order of the Court
a quo
is set aside and
the matter is remitted to the said Court to hear and decide the
appellant’s application in terms of the
provisions of
section
57(5)
of the
South African Police Service Act 68 of 1995
.
_____________________________
D VAN ZYL
JUDGE OF THE HIGH COURT
I agree
______________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
I agree
_______________________
N CONJWA
ACTING JUDGE OF THE HIGH COURT
Counsel for the appellant: Adv V S Notshe (SC)
Instructed by: W T Mnqandi & Associates
Offices 511 – 512,
5
th
Floor Absa Building
60 Sutherland Street
MTHATHA
Counsel for the respondent: Adv N K Dukada (SC) and Adv.
M N Hinana
Instructed by: State Attorney
C/o CAPS Pangwa & Associates
Suite 302 Offices 311 & 312
City Centre Complex
York Road
P O Box 1266
MTHATHA
Appeal heard on: 30 November 2012
Judgment delivered on: 14 December 2012