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2024
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[2024] ZAECQBHC 39
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Nel v Minister of Police N.O. (3288/2019) [2024] ZAECQBHC 39 (16 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
NOT
REPORTABLE
Case
No: 3288/2019
In the matter between:
TREVOR
NEL
Plaintiff
and
MINISTER
OF POLICE N O
Defendant
JUDGMENT
ELLIS AJ:
[1]
The plaintiff
instituted action against the defendant, claiming payment in the
total amount of R2 500 000 (two million five hundred
thousand rand)
together with interest and costs, as and for damages as set out in
five separate claims and alleged causes of action.
[2]
For present purposes,
it is appropriate to condense the plaintiff’s alleged claims as
follows:
Claim 1:
Assault, arising from an alleged incident on 5 September 2016.
Claim 2:
Defamation, arising from an alleged incident on 5 September 2016.
Claim 3:
Assault, arising from an alleged incident on 21 November 2016.
Claim 4:
Defamation, arising from an alleged incident on 21 November 2016.
Claim 5:
Unlawful arrest, arising from the plaintiff’s alleged arrest on
21 November
2016.
[3]
When
the matter came before me, I granted an order
mero
motu
and pursuant to the provisions of Uniform Rule 33(4) separating the
issues raised by the defendant in the four special pleas from
the
remaining issues on the pleadings.
[1]
[4]
In respect of the
plaintiff’s first claim the defendant raised a special plea of
prescription as follows:
‘
FIRST
SPECIAL PLEA TO PLAINTIFF’S CLAIM 1
1.
The plaintiff’s
debt as so defined is the correlative of a right of action vested in
the plaintiff who is the creditor;-
1.1
in terms of the
provisions of
section 11(d)
of the
Prescription Act No 68 of 1969
,
hereinafter referred to as (“the Act”) except where an
act of parliament provides otherwise three (3) years in respect
of
any other debt as set out in chapter 11 of the Act under Prescription
of Debts.
1.2
the alleged debt of the
plaintiff had commenced when the debt was due; and
1.3
the plaintiff’s
claim for alleged wrongful and unlawful, alternatively, malicious
assault had become due on 5 September 2016.
This is set out in
paragraphs 5 to 8 of the particulars of the plaintiff’s claim.
2.
The plaintiff’s
summons was served on the office of the Chief Justice in the Eastern
Cape Local Division, Port Elizabeth on
20 November 2019 and on the
defendant on 21 November 2019, which is more than three (3) years
after the date on which the claim
arose.
3.
In the circumstances
the plaintiff’s claim is prescribed in terms of the provisions
of
section 11(d)
of the Act.
WHEREFORE the defendant
prays that the plaintiff’s claim be dismissed with cots, such
costs to include the employment of counsel.’
[5]
The defendant raised an
identical special plea of prescription to the plaintiff’s
second claim, in that the claim for the
alleged defamation became due
on 5 September 2016, as set out in paragraphs 9 to 11 of the
Particulars of Claim. Summons was served
on the defendant on 21
November 2019, which is more than three years after the date on which
the claim arose. Accordingly,
the defendant pleads that the
plaintiff’s second claim is prescribed and similarly prays for
the dismissal of the second
claim, with costs.
[6]
The defendant’s
third special plea is pleaded as follows, and strikes at the
plaintiff’s first to fifth claims:
‘
THIRD
SPECIAL PLEA TO PLAINTIFF’S PARTICULARS OF CLAIM
:-
8.
In terms of the provisions of
section 3(1)
of the
Institution of
Legal Proceedings Against Certain Organs of State Act, No. 40 of
2002
, hereinafter referred to as “the Act” no legal
proceedings for the recovery of a debt may be instituted against an
Organ of State unless
(a) The creditor
has given the Organ of State notice in writing of his or her or its
intention to institute legal proceedings
in question; or
(b) The Organ
of State has consented to the institution of that legal proceeding;
(i)
without notice; or
(ii) upon receipt of a
notice which does not comply with all the requirements as set out in
section 3(2)
of the Act.
9.
In terms of the provisions of
section 3(2)
of the Act, notice must
within six (6) months from the date upon which the debt became due,
be served on the Organ of State in
accordance with
section 4(1)
of
the Act, which must briefly set out the facts giving rise to the debt
and such particulars of the debt which are within the
plaintiff’s
knowledge.
10.
The defendant is an Organ of State as defined in
section 1
of the
Act.
11.
The plaintiff has failed to serve any such written notice timeously
on the defendant in
terms of the Act in respect of all five (5) of
the plaintiff’s claims, notwithstanding that the plaintiff’s
claims
one (1) and two (2) are prescribed.
12.
The defendant has not consented to the institution of legal
proceedings in terms of
section 3(1)
of the Act. The defendant
relies upon the plaintiff’s failure to serve a notice in terms
of the provisions of
section 3(4)
of the Act.
12.1
In terms of the provisions of
section 3(4)
of the Act, where an Organ
of State, like the defendant in this matter, the plaintiff may prior
to the institution of legal proceedings,
apply to the court having
jurisdiction for condonation for such failure and the court may grant
leave to the plaintiff to institute
such legal proceedings on such
conditions regarding the notice to the Organ of State as it may be
deemed appropriate by the court.
13.
In all the premises, the plaintiff has failed to serve a notice in
compliance with
section 3(1)
and (2) of the Act; and
13.1
Failed to obtain leave to institute such legal proceedings in terms
of
section 3(4)
of the Act.
14.
In the circumstances, the plaintiff’s claim in unenforceable in
law.
WHEREFORE the defendant
prays that the plaintiff’s claim be dismissed with costs, such
costs to include the costs of counsel.’
[7]
During argument, the
defendant abandoned the fourth special plea.
[8]
The plaintiff did not
file a replication to the special pleas. It is common cause
that the causes of action in respect of
the first and second claims
arose on 5 September 2016 and that the first and second claims became
due on 5 September 2016.
The date on which prescription started
to run was not placed in dispute and it is not alleged that
prescription was interrupted
at any point. Summons was served
on the defendant on 21 November 2019.
[9]
Ms.
Nel, appearing on behalf of the plaintiff, fairly conceded that
considering the common cause timeline, the first and second
claims
had become prescribed but nevertheless argued that I should exercise
my inherent discretion to condone such prescription.
She
further argued that it would be patently unfair to the plaintiff if
the provisions of the
Prescription Act
E="_ftnref2">[2]
were to prevail, and that the plaintiff would be prejudiced if his
claims arising on 5 September 2016 were to be disallowed.
[10]
The argument is flawed
in law. Prescription is regulated by the
Prescription Act.
It
provides that a debtor has a specific period of time within which
to institute a claim and thereby interrupt the running of
prescription.
If action is not commenced within that period,
the debt will be extinguished by prescription. Failure to
institute
the action within the required statutory period cannot be
condoned. The plaintiff’s first and second claims have
become
prescribed. The first and second special pleas must be
upheld as the first and second claims have been extinguished by
prescription.
[11]
Dealing
now with the third special plea.
Section 3(4)(a)
of the
Institution of Legal Proceedings Against Certain Organs of State
Act
[3
]
invites a ‘creditor’
on the receiving end of a point taken that he or she has failed to
serve a notice within the prescripts
of
s 3(1)(a)
to apply to a court
having jurisdiction for the condonation of such failure. The
proper and salutary practice is for such
an application to be brought
before a motion court and resolved before the matter comes to
trial.
[4]
If the plaintiff
was of the view that he gave proper notice, within the prescribed
time period, as contemplated in
s 3(2)
, he should have filed a
replication in answer to the special plea. It is common cause
that the plaintiff neither applied
for condonation in terms of
s
3(4)(a)
, nor filed a replication.
[12]
Ms. Nel took the view
that an application for condonation is not required, and proposed to
testify herself as to the transmission
and content of the notice she
alleges was sent to the defendant. The difficulty with this
proposition is, firstly, that the
provisions of the ILPACOSA are
peremptory, and after being confronted with special plea of
non-compliance it was incumbent upon
the plaintiff to take the
necessary steps, either by way of an application for condonation or
by way of replication, in answer
thereto. Secondly, pleadings serve
to identify the issues in a matter and the parties are bound to their
pleadings. In the absence
of a replication, evidence would have been
unrelated to the identified issues and would constitute irrelevant
matter, which would
be inadmissible. Leaving aside for the
moment the question whether it would at all be proper for Ms. Nel to
testify while
she was representing the plaintiff (in my view it would
not be) the plaintiff, simply put, has no answer to the defendant’s
third special plea.
[13]
Mr. Dala, appearing on
behalf of the defendant, argued that the plaintiff relies solely on
the fact that a purported notice was
sent, but that the plaintiff
failed to make out a case that there was compliance in any manner
with the provisions of
s 3
of the ILPACOSA. Despite being
confronted with the special plea, the plaintiff made a choice to
proceed with the matter contrary
to the ILPACOSA, and in the absence
of this jurisdictional requirement the plaintiff’s claims are
unenforceable and fall
to be dismissed.
[14]
There is no evidence
placed before me that the plaintiff had in fact given the required
notice in respect of any of his claims,
within the prescribed period,
as envisaged in
s 3(2)
of the ILPACOSA. There is no application
for condonation in terms of
s 3(4)
of the ILPACOSA and the defendant
did not consent to the institution of the legal proceedings in terms
of
s 3(1).
In the circumstances, the plaintiff’s third
special plea must be upheld. Having found that the first and
second
claims have become prescribed, only the third to fifth claims
remain. The provisions of
s 3(1)
are peremptory and a
jurisdictional requirement for legal proceedings for the recovery of
damages against an organ of State.
In the circumstances, the
plaintiff’s third to fifth claims are not enforceable in law
and fall to be dismissed.
[15]
The following order
will issue:
1.
The defendant’s
first and second special pleas are upheld and the plaintiff’s
first and second claims are dismissed,
with costs.
2.
The defendant’s
third special plea is upheld and the plaintiff’s third, fourth
and fifth claims are dismissed, with
costs.
L ELLIS
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For Plaintiff:
Ms. J Nel
Instructed by:
Janice Nel Attorneys
GQEBERHA
For Defendant:
Adv I Dala SC
Instructed by:
State Attorney
GQEBERHA
Date Heard:
8 May 2024
Date Delivered:
16 May 2024
[1]
‘
1.
The Defendant’
s 1
st
-
4
th
special pleas (paragraphs 1-16) of the Defendant’s Plea dated
10 February 2020 are hereby separated from the remainder
of the
issues for determination.
2.
The issues as pleaded in paragraphs 1-24 of the Particulars of Claim
dated 15 November 2019 read with
paragraphs 17-26 of the Defendant’s
Plea are postponed
sine die.’
[2]
No.
68 of 1969.
[3]
No.
40 of 2002, referred to as ‘ILPACOSA’.
[4]
Makwelo
v Minister of Safety and Security
[2015] 2 All SA 20
(GJ) discussion generally at paras 23-28.