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2024
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[2024] ZAMPMBHC 43
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Lisenga v Minister of Justice (1609/2019) [2024] ZAMPMBHC 43 (25 June 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
(MAIN SEAT)
CASE NO: 1609/2019
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE: 25/06/2024
SIGNATURE
In the matter between:
GODFREY
MANGO LISENGA
Plaintiff
and
MINISTER
OF JUSTICE
Defendant
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 25 June 2024 at 10:00.
JUDGMENT
MASHILE J:
[1]
Central to this case is whether the claim for damages instituted
against the Defendant (“the
Minister”) by the Plaintiff
(“Lisenga”) has prescribed for lack of observance of the
provisions of Section 3
of the Institution of Legal Proceedings
against certain Organs of State, Act 40 of 2000 (“Act 40 of
2000”) or in terms
of Section 12 of the Prescription Act 68 of
1969 (Act 68 of 1969”). When the matter served before this
Court, the parties
had on 18 August 2023 obtain a court order
directing that the special plea raised by the Minister be decided
separately as it could
be dispositive of the whole case.
[2]
This is how the question of prescription has become the sole issue
for consideration by this Court.
The facts from which the issue
arises are common cause between the parties. At Paragraph 4 of his
particulars of claim, Lisenga
alleges that the Minister is liable
because he
was
wrongfully or negligently convicted during January 2002 following
which, a criminal record was noted against his name. Lisenga
avers
further that his name was endorsed on the register of offenders after
the clerk and Magistrate at Hazyview Court had prepared
and
authorized his SAPS 69 or fingerprints forms and forwarded them to
the Local Criminal Record Center. Following this, a criminal
record
was updated on his name for an offence of theft.
[3]
At Paragraph 5 of the particulars of claim, Lisenga states that the
criminal case against him
was withdrawn by the Magistrate’s
Court but the Clerk of the Court together with the Magistrate, both
acting in their scope
of employment and furthering the interest of
the Minister, wrongfully or negligently prepared and authorized SAPS
69 form. The
SAPS 69 was thereafter forwarded to the Criminal Record
Center for update on the system. In consequence of this, concludes
Lisenga,
he came to acquire a criminal record of theft, which he
discovered in June 2016 when he was advised that he was convicted by
the
Hazyview Magistrate’s Court in 2002.
[4]
The Minister acknowledged that he bore the onus of showing that the
claim had become prescribed.
That said, he opted not to call any
witnesses in support of his defence and closed his case. Testifying
to validate the allegations
in the particulars of claim was Lisenga
personally. When he finished his evidence, his Counsel announced that
he was closing his
case too. Lisenga’s testimony was that on 13
June 2016, it dawned upon him for the first time
that
he might have a claim for delictual damages based on the incorrect
conviction and subsequent criminal record that followed.
[5]
His further evidence was that it was in 2012 and 2013 when he learned
of the conviction and criminal
record for the first time. The
revelation was made by a potential employer, Woestalin Mine in
Middleburg. Woestalin Mine informed
him that it emerged during his
background check that he had a criminal record, which he had failed
to disclose. In consequence
of this non-disclosure and existence of
the criminal record the prospective employer deemed him unsafe and
dishonest and declined
to engage him further.
[6]
The background to the above, he said, was that he attended an
interview in August 2012 where he
was requested to complete certain
forms. One of the forms required him to state whether he had any
previous convictions or not.
Oblivious of the conviction and criminal
record, he said that he had none following which his fingerprints
were scanned. He was
surprised when he was questioned about the
conviction and criminal record from 2002in Hazyview. His explanation
of what had transpired
led the interviewer to give him a paper
bearing Cas 145/11/2001 and advised him to obtain a police
testimonial from investigating
officer Deon Meyer.
[7]
Lisenga also testified that armed with the case number, he went to
the Hazyview Police station
a few times looking for Deon Meyer
without any success. He ultimately left his contact telephone number
with a message that Deon
Meyer must contact him. While he was still
expecting to hear from Deon Meyer, he received a job offer from
Sparton Truck Hire in
Middleburg. He signed the contract on 13
September 2012 and commenced employment as a yard supervisor on 17
September 2012. On
30 August 2013, he was informed by the company
that he failed to disclose his previous conviction during his job
application. He
was accused of failure to disclose his conviction and
dishonesty because of which, he was discharged.
[8]
Following his dismissal at Sparton Truck Hire, he once again visited
the police at Hazyview to
obtain a testimonial. He told them that he
had lost his previous employment due to an alleged conviction and
existence of a criminal
record whereupon he was directed to the White
River Magistrate’s Court. The Court referred him back to the
police in Hazyview.
He stated that it was back and forth between the
police at Hazyview and the Court in White River. Ultimately though,
he met Magistrate
Oosthuizen who requested that he be given a certain
document, which he could not really understand. Frustrated with this
back and
forth, he reported the matter to the provincial
commissioner. In the process of all this and on 13 June 2016, he was
advised that
he had a claim against the Minister as the people who
committed the wrongful negligent act were in the employ of the
Minister.
[9]
He did not immediately find an attorney because he had thought that
he would not afford even if
he were to find one. Surprisingly, in
2019 he met his attorney of record who agreed to assist Lisenga who
claimed that during the
period between 2013 and June 2016 he did not
know that he could sue anyone or that he had a claim. Lisenga said
that his level
of education is Grade 12.
[10]
Now that I have dealt with the factual matrix of this case, it is
opportune to turn to the legal framework
governing the subject.
Section 12 of Act 68 of 1969 provides that:
“
(1)
Subject to the provisions of subsections (2), (3), and (4),
prescription shall commence to run
as soon as the debt is due.
(2)
If the debtor wilfully prevents the creditor from coming to know of
the existence
of the debt, prescription shall not commence to run
until the creditor becomes aware of the existence of the debt.
(3)
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.”
[11]
The essentials of this section have been a subject before various
Courts in this country. Thus, the Constitutional
Court in
Mtokonya
v Minister of Police
[1]
held
that the facts of which the creditor needed to be aware do not extend
to the knowledge of the legal consequences but simply
to those facts
the creditor would need to prove in order to prove his claim against
the debtor. In
MEC
for Health, Western Cape v M C
[2]
,
the SCA held that the required knowledge extends to the minimum facts
necessary to prove a claim and that a debt is due when it
is owing
and payable.
[12]
The minimum necessary
facta probanda
to sustain a claim
founded on a claim for delictual damages are:
12.1
Establishment of the identity of the debtor, the minister in this
case.
12.2
Commission of a wrongful act;
12.3
Fault in the form of either negligence or intention. The wrongful act
must have been committed either negligently
or intentionally;
12.4
Causation. There must be a causal link between the wrongful act that
has been committed negligently or intentionally
and the damages that
have ensued;
12.5
Patrimonial loss. This is the loss that the plaintiff would have
suffered because of the negligent or intentional
wrongful act.
[13] It
is necessary to point out from the onset that the dates referred to
by the parties are common cause. Lisenga
states that he was told that
he had a criminal record stemming from a theft conviction. One Deon
Meyer of Hazyview Police Station
investigated the case. He acquired
knowledge of this when he went for an interview at the Woestalin
Mines in Middleburg in 2012.
During his interview at the mine, he was
required to complete a form. In an answer to a question whether he
had a criminal record
or not, he had stated that he did not. After
processing his application, the mine declined to employ him advising
that he was dishonest
as he had failed to disclose that he had been
convicted for theft in 2002 for which he paid a fine of
R400.00
.
This was new to him. The correct position is that his co-accused was
in fact the one who was convicted and fined
R400.00
.
[14] On
13 September 2012, he went for another interview at Sparton Truck
Hire in Middleburg. He was successful
and commenced employment on 17
September 2012. On 30 August 2013, his employer discharged him from
employment because of his failure
to disclose that he was convicted
and therefore had a criminal record. On this occasion, a piece of
paper bearing Cas No: 145/11/2001
was supplied to him. Everything
said, the point is that Lisenga had known from the time he had
attended the interview at the Woestalin
Mines that he had a criminal
record. Besides, Lisenga himself told the Clinical Psychologist that
the first time he acquired knowledge
of his conviction and subsequent
criminal record was in 2012/2013 when he attended employment
interviews.
[15] He
also knew that the Magistrate’s Court that convicted him must
have had their facts confused as,
according to him, he was never
convicted and therefore could not have a criminal record. These were
the minimum facts that would
have enabled him to institute his
delictual claim. Accepting that these were the facts that Lisenga
needed to know, it is not necessary
that they should extend to the
knowledge of the legal consequences. It is sufficient that they
constitute the minimum facts that
Lisenga required to establish his
claim against the Minister. The exceptions in Section 12(2) and (3)
do not find application here.
Firstly, there is no allegation that
the Minister prevented him from finding out the facts and secondly,
he knew the identity of
the Minister.
[16]
This conclusion is unavoidable because Section 12 of Act 68 of 1969
does not require actual knowledge but
it is adequate that he could
have acquired it by exercising reasonable care. Could Lisenga have
known of the creditor, the Minister,
by the exercise of reasonable
care? The answer must be in the affirmative because he was exposed to
personnel such as that which
informed him that he might have a claim
against the Minister in 2016. Lisenga could have enquired when he
visited the Hazyview
Police Station, White River Magistrate’s
Court and again the police at Hazyview when he revisited them.
[17]
From his evidence though, he did not consult with attorneys because
he thought such exercise as beyond him
and prohibitive. He came to
know that there were attorneys who probably, I guess, could take
cases on contingency unfortunately,
well after the claim had
prescribed and had to contrive lack of knowledge of the Minister and
minimum facts to avoid prescription.
The claim of Lisenga prescribed
as early as 2015 or, at best, in 2016. This is because Section 12(1)
states that a debt begins
to run as soon as it becomes due. On the
facts of this case, the debt fell due in 2012 when Lisenga was told
that he had a conviction
and that a criminal record had been noted
against his name. Constructively, he has always known of the identity
of the Minister
since the day he was advised about the conviction and
criminal record.
[18]
In the result, I am constrained to uphold the special plea and I make
the following order:
The
claim is dismissed with costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Adv
LD Tjale
Instructed
by:
TP
Radebe Attorneys
Counsel
for the Respondent:
Mr
D Slabber
Instructed
by:
State
Attorney (Pretoria)
C/O
Slabber Attorneys Inc
Date
of Judgment:
25
June 2024
[1]
[2017] ZACC 33
at paragraph 36
[2]
[2020] ZASCA 165
(SCA) paragraphs 6 and 7