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2024
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[2024] ZAFSHC 308
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Ramahapi v Minister of Police and Others (1294/2019) [2024] ZAFSHC 308 (3 October 2024)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable:
YES/NO
Case No: 1294/2019
In
the matter between:
MALEFETSANE
PAULUS RAMOHAPI
Plaintiff
And
THE
MINISTER OF POLICE
First
Defendant
THE
NATIONAL DIRECTOR:
PUBLIC
PROSECUTIONS
Second
Defendant
THE
MINISTER:
JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Third
Defendant
Bench:
Opperman J
Heard:
11
June 2024
Delivered:
3 October 2024.
This
judgment was handed down in court and electronically by circulation
to the parties’ legal representatives
via
email and release to SAFLII on 3 October 2024. The
date and time of hand-down is deemed to be 15h00 on 3 October 2024
Summary:
Civil procedure –
Action against state – Special plea of prescription –
Non-compliance with
Institution of
Legal Proceedings Against Certain Organs of State
Act
40 of 2002
condoned
ORDER
The
following orders are made:
1.
The plaintiff’s claim of malicious prosecution
against the
first defendant has prescribed and is accordingly dismissed. The
plaintiff is to pay the first defendant’s costs
on scale C.
2.
The special plea of prescription raised by
the second defendant is
upheld and the plaintiff’s claim of malicious prosecution
against the second defendant is accordingly
dismissed. The plaintiff
is to pay the second defendant’s costs and on scale C.
JUDGMENT
Opperman
J
[1]
The issue for adjudication is that of prescription
after non-compliance with the Institution of Legal Proceedings
Against Certain
Organs of State Act 40 of 2002 (the Act). By
agreement between the parties, it was ordered in terms of rule 33(4),
that the matter
of prescription be separated from the rest of the
action. The only claim that is still relevant is that against the
second defendant
and of malicious prosecution.
[2]
The
predicament of the plaintiff is that the claim would have
prescribed
[1]
had he not served
on the State Attorney on 22 March 2019. He served in time but that
caused transgressions of ss 3
[2]
and 5(2) and brought s 5(3)
[3]
of the Act into play. Section 5(2) specifically orders that no
process for the institution of legal proceedings may be instituted
before the expiry of 60 days after the notice in terms of s 3 was
served. A notice in terms of s 3(2)(a) must be served within
six
months from the date on which the debt became due. Section 5(3)
complicates the situation for the plaintiff in that:
‘
If
any process referred to in subsection (1) has been served as
contemplated in that subsection before the expiry of the period
referred to in subsection (2), such process
must
be regarded as having
been served on the first day after the expiry of the said period.
’
(Accentuation added)
[3]
The following dates are important regarding the
claim of malicious prosecution against the second defendant:
-
The
plaintiff was acquitted on appeal on 31 March 2016. The cause of
action arose on 31 March 2016; the debt became due on this
date.
[4]
-
The
claim would have prescribed on 30 March 2019.
[5]
-
Service
of the claim against the second defendant was effected on 22 March
2019
[6]
on the Office of the
State Attorney.
-
The
letter of demand (notice) was sent by registered mail on 18 February
2019 to the Director of Public Prosecutions.
[7]
Notice should have been given on or before 30 September 2016.
[8]
According to both the plaintiff and the second defendant the notice
was only given on 18 March 2019.
[9]
The sixty days before summons could have legislatively legally been
served thus expired on or about 3 May 2019.
-
Condonation for non-compliance with the Act of s 3
and s 5 was granted on 9 June 2022 (June 2022 – order). This is
the order:
‘
IT
IS ORDERED THAT
1.
The Applicant’s failure to comply with the
provisions of Section 3 of Act 40 of 2002 is condoned;
2.
The Applicant’s premature service of the
summons upon the Respondents in the main proceedings under case
1294/2019 is condoned.’
[4]
Counsel
for the second defendant correctly argued that notwithstanding the
condonation granted, and in terms of the prevailing legislation,
the
service of the claim had only happened when the 60 days –
period have expired, and not 22 March 2019. The court that
dealt with
the condonation did not make any declaration on prescription since it
was not applied for it to do so. It only condoned
the early service.
The finding of the court that granted the condonation is correct
because the claim had not prescribed at the
time of the application.
The claim became prescribed in terms of s 5(3) of the Act after the
court granted the condonation for
the premature service. The court
did not make a ruling on the effect of s 5(3) of the Act on the
order. Section 5(3) of the Act
is mandatory.
[10]
The June 2022 – order did not disturb the working of s 5(3) of
the Act.
[5]
The
above finding is made with due awareness of the fact that the Act was
introduced to harmonize periods of prescription of debts
owed by
organs of state, and to make provision for a uniform requirement for
the giving of notice in connection with the institution
of legal
proceedings. The Act came after a decision in the Constitutional
Court in
Mohlomi
v Minister of Defence
[11]
(Mohlomi)
.
The Act is meant not only to bring consistency to procedural
requirements for litigating against organs of state but also, it
is
clear, to render them compliant with the Constitution. The way in
which it seeks to achieve a procedure that is not arbitrary
and that
operates efficiently and fairly both for a plaintiff and an organ of
state is to give a court the power to condone a plaintiff's
non-compliance with procedural requirements in certain circumstances.
Thus, access to courts is facilitated, while at the same
time
procedures against large governmental organizations that need to keep
their affairs in order, are regulated.
[12]
[6]
The purpose of having special requirements in
place for the institution of action against a state body was depicted
by Didcott J
in
Mohlomi
:
‘
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests of justice. They protract the
disputes over the rights and obligations 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.’
[13]
[7]
The history of the litigation in this case is of
concern. The special plea of prescription was served on 25 November
2019 by the
defendants. The plaintiff did not reply to it.
Notwithstanding being
dominis litis
on the issue, it was not brought to court by the
defendants. Four years later, an eventual pre-trial hearing was held
on 3 April
2023 during which there was no appearance for the State
Attorney representing the defendants and after due notice to them.
The
presiding judge ordered that:
‘
No
appearance for the State Attorney. Pl (sic) is ready to set the
matter down for trial. State Attorney to ensure that there is
a
written explanation in the file expl (sic) non—appearance.’
The order did not come to
the notice of the State Attorney and reasons were not filed. The
court was forced to certify the matter
ready to go on trial. The
issue of the special pleas was not canvassed at the pre-trial
hearing.
[8]
Important is that counsel for the plaintiff
conceded during the hearing of the matter on 11 June 2024 that only
the claim of malicious
prosecution against the second defendant is
still alive for adjudication. It became common cause that the claim
against the third
defendant was withdrawn and the claim against the
first defendant prescribed. The court will make an order on the
prescription
of the claim of malicious prosecution against the first
defendant for the sake of completeness.
[9]
As
to costs; in
Mashavha
v Enaex Africa (Pty) Ltd
[14]
the approach to setting a scale of costs under Rule 67A (3) involves
first identifying the appropriate scale based on the importance,
value, and complexity of the case, and then considering whether the
scale should be reduced due to any inartful or unethical conduct
as
identified in Rule 67A (2).
[10]
Counsel
for the second defendant was only available on 11 June 2024 to deal
with the special plea but the case was set down for
three days for
trial by the plaintiff. The plaintiff was duly informed of this, the
court not. It only came to the attention of
the court that the matter
would not proceed on trial when the heads of argument for the
plaintiff was filed on 10 June 2024. The
heads of argument for the
second defendant were handed up to the court at the start of the
hearing on 11 June 2024. The attorneys
for the plaintiff refused to
amend the date to be only for the hearing of the special plea and to
accommodate counsel for the second
defendant.
[15]
To add fuel to fire, the case was also set down for 2, 3 and 5 July
2024 by the plaintiff. The notice of set down was served on
19
February 2024. This notice was not withdrawn. On 28 February 2024 a
notice of set down was served for 11, 12 and 14 June 2024
by the
plaintiff. This is unacceptable; much time was wasted, and confusion
reigned. Ultimately, the only claim that is still on
the table is
against the second defendant and for malicious prosecution, but this
is not clear from the papers presented by the
plaintiff. The court
had to do some organisation of the file and sift through the evidence
to ascertain the status of the case.
For the sake of the expeditious
administration of justice, the court let the matter proceed.
[11]
Costs
will follow the cause. Due to the extensive experience of counsel for
the second defendant and the complications in the case,
scale C shall
apply against the plaintiff.
[16]
[12]
ORDER
In result the following
orders are made:
1.
The plaintiff’s claim of malicious
prosecution against the first defendant has prescribed and is
accordingly dismissed. The
plaintiff is to pay the first defendant’s
costs on scale C.
2.
The special plea of prescription raised by the
second defendant is upheld and the plaintiff’s claim of
malicious prosecution
against the second defendant is accordingly
dismissed. The plaintiff is to pay the second defendant’s costs
and on scale
C.
OPPERMAN
J
APPEARANCES
On
behalf of plaintiff
T
SNYDERS
Johannesburg
Mlozana
Attorneys Inc.
Bloemfontein
On
behalf of the defendants
G
J M WRIGHT
Bloemfontein
Office
of the State Attorneys
Bloemfontein
[1]
Section
11
of
the
Prescription Act 68 of 1969
provides: ‘
Periods
of prescription of debts
—
The
periods of prescription of debts shall be the following: . . .
(d) save where an Act of
Parliament provides otherwise,
three years in respect of any
other debt
. (Accentuation added).
[2]
Section
3 of the Act
states:
‘
Notice
of intended legal proceedings to be given to organ of state
(1) 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 in
question notice in writing of his or her or its intention to
institute the legal
proceedings in question; or
(b) the organ of state
in question has consented in writing to the institution of that
legal proceedings—
(i) without
such notice; or
(ii) upon receipt
of a notice which does not comply with all the requirements set out
in subsection (2).
(2) A notice must—
(a)
within six
months from the date on which the debt became due
, be served on
the organ of state in accordance with section 4(1); and
(b) briefly set
out—
(i)
the facts giving rise to the debt; and
(ii)
such particulars of such debt as are within the knowledge of the
creditor.
(3) For purposes
of subsection (2)(a)—
(a) a debt may not
be regarded as being due until the creditor has knowledge of the
identity of the organ of state and of
the facts giving rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or
it could have acquired it by
exercising reasonable care, unless the organ of state willfully
prevented him or her or it from
acquiring such knowledge; and
(b) a debt
referred to in section 2(2)(a), must be regarded as having become
due on the fixed date.
(4)
(a)
If an organ
of state relies on a creditor’s failure to serve a notice in
terms of subsection (2)(a), the creditor may apply
to a court having
jurisdiction for condonation of such failure.
(b) The court may
grant an application referred to in paragraph (a) if it is satisfied
that—
(i) the debt
has not been extinguished by prescription;
(ii) good cause
exists for the failure by the creditor; and
(iii) the organ of state
was not unreasonably prejudiced by the failure.
(c)
If an
application is granted in terms of paragraph (b), the court may
grant leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate
. (Accentuation added).
[3]
Section
5(2)
of
the Act provides: ‘No process referred to in subsection (1)
may be served as contemplated in that subsection
before
the expiry of a period of 60 days after the notice
,
where applicable, has been served on the organ of state in terms of
section 3(2)(a): Provided that if the organ of state repudiates
in
writing liability for the debt before the expiry of the said period,
the creditor may at any time after such repudiation serve
the
process on the organ of state concerned.’
[S5(2) substituted by s
33(a) of Act 8 of 2017 with effect from 2 August 2017.]
Section
5(3)
of the Act stipulates that: ‘If
any process referred to in subsection (1) has been served as
contemplated in that subsection
before
the expiry of the period referred to in subsection (2), such process
must be regarded as having been served on the first
day after the
expiry of the said period
.’
Section
5(1)(a)
of the Act decrees that: ‘Any
process by which any legal proceedings contemplated in section 3(1)
are instituted must be
served in accordance with the provisions of
section 2 of the State Liability Act, 1957 (Act No. 20 of 1957).’
Section
2
of the
State Liability Act 20 of 1957
provides:
‘
Proceedings
to be taken against executive authority of department concerned.
(1)
In any action or other proceedings instituted by
virtue of the provisions of
section 1
, the executive authority of
the department concerned must be cited as nominal defendant or
respondent.
(2)
The plaintiff or applicant, as the case may be,
or his or her legal representative must, within seven days after a
summons or
notice instituting proceedings and in which the executive
authority of a department is cited as nominal defendant or
respondent
has been issued,
serve a
copy of that summons or notice on the State Attorney
.’
(Accentuation added).
[4]
Application
for condonation by plaintiff handed in as exhibit B on 11 June 2024
at para 21: ‘It is common cause between
the parties that the
cause of action in respect of the 2
nd
Respondent
arose on 31 March 2016 and the notice should have been given on or
before 30 September 2016. I only gave the notice
on the 18
th
of
March 2019.’
[5]
Heads
of argument by counsel for the plaintiff dated 10 June 2024 at para
3.4.
[6]
See
the return of service at page 4 of the “Index: Pleadings”
bundle dated 14 March 2023.
[7]
See
page 39 and further “Index: Pleadings” bundle dated 14
March 2023.
[8]
Application
for condonation by plaintiff handed in as exhibit B on 11 June 2024
at para 21.
[9]
In
their heads of argument for the second defendant at paragraph 1.1
they refer to 13 February 2019, but it was only the Minister
of
Justice & Constitutional Development and the Minister of Police
that was notified on 13 February 2019. At para 21 of the
founding
affidavit of the plaintiff in the condonation application (Exhibit B
dated 14 June 2024) the date is stated as 18 March
2019. At para 11
of defendants’ plea, they also refer to 18 March 2019 (page 6
of the defendants’ plea; page 67 of
the bundle “Index:
Notices” dated 14 March 2023).
[10]
Mohlaka
v Minister of Finance and Others
(J2283/07)
[2008] ZALC 152
;
[2009] 4 BLLR 348
(LC); (2009) 30 ILJ 622 (LC) (13
November 2008) at paras 49-55.
[11]
Mohlomi
v Minister of Defence
(CCT41/95)
[1996] ZACC 20
;
1996 (12) BCLR 1559
;
1997 (1) SA 124
(26 September
1996).
[12]
Minister
of Safety and Security v De Witt
(588/2007)
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) (19 September 2008). Also
see John Saner
,
Civil Procedure, Prescription in South African Law,
Chapter
1 Introduction, 1.5 Other statutory time limitations, Last Updated:
August 2023 - SI 34, LexisNexis.
[13]
Mohlomi
fn
9 para 11.
[14]
(2022/18404)
[2024] ZAGPJHC 387 (22 April 2024).
[15]
See
exhibit A handed in by counsel for the second defendant on 11 June
2024.
[16]
Rule
67A
(2):
In considering all
relevant factors when awarding costs, the court may have regard to—
(a)
the provisions of
rule 41A
;
(b)
failure by any party or such party’s legal
representative to comply with the provisions of
rules 30A
,
37
and
37A
;
(c)
unnecessary or prolix drafting, unnecessary
annexures and unnecessary procedures followed;
(d)
unnecessary time spent in leading evidence, cross
examining witnesses and argument;
(e)
the conduct of the litigation by any party’s
legal representative and whether such representative should be
ordered to pay
such costs in his or her personal capacity; and
(f)
whether the litigation could have been conducted
out of the magistrate’s court.