About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 76
|
|
Ferreira v Minister of Safety and Security and Another (1159/2018) [2024] ZANCHC 76 (16 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1159/2018
Reportable:
YES
/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
ABEL
DANIËL
FERREIRA
Plaintiff
and
THE
MINISTER OF SAFETY AND SECURITY
1
st
Defendant
CHRISTO
PETRUS HORAK
2nd Defendant
Coram: Lever J
JUDGMENT
Lever
J
1.
The main claim is a claim for damages arising from the conduct of the
defendants in seizing and subsequently
declaring a commercial vehicle
belonging to the plaintiff forfeit to the State. The said vehicle was
used to convey granite slabs
from a quarry to a particular client for
an agreed fee for each kilometre travelled. The said agreement was
for a period of five
years.
2.
The relevant vehicle was seized in the vicinity of Upington.
Approximately a year after such seizure
the said vehicle was declared
forfeit to the state. Subsequently, an application to review and set
aside the forfeiture of this
vehicle was brought in this court. Such
review application was successful, and the said forfeiture order was
set aside. The vehicle
was returned to the plaintiff
approximately ten months after the judgment in the review
application.
3.
When the said vehicle was returned to the plaintiff, it is their case
that the vehicle had been damaged
whilst in storage during the period
after it was seized and after it was forfeited to the state. The said
vehicle needed to be
transported to a repair centre and undergo
certain repairs before it could be utilised to again generate an
income.
4.
The plaintiff has two separate claims for damages against the
defendants arising from these facts. The
first claim is a claim for
the income lost from the date of seizure up to the date the repairs
on the vehicle had been effected
and the vehicle was again suitable
and fit to generate an income. The second claim is for the cost of
transporting the vehicle
from the place where the defendants stored
the vehicle to the place where it could be repaired and for the costs
of such repairs.
5.
The defendants pleaded that both claims had become prescribed by the
passage of time in a Special Plea.
The plaintiff filed a Replication.
The Particulars of Claim, the Special Plea and the Replication were
amended on occasion. The
plaintiff and the defendants agreed as to
which documents constituted the pleadings and this did not create a
difficulty.
6.
The plaintiff and the defendants wanted the issue of prescription to
be decided before the matter proceeded
to trial on the merits. They
agreed to a stated case as contemplated in Rule 33 of the Uniform
Rules of Court (the Rule/s). A statement
of agreed facts was filed as
contemplated by the rule referred to herein.
7.
The said statement of agreed facts sets out the dates relating to the
seizure, the forfeiture declaration,
the date of the review judgment
as well as the date that the vehicle was returned to the plaintiff
along with certain other agreed
facts and a summation of the legal
issues involved from the perspective of the different parties
concerned.
8.
It is probably best and most convenient to set out the statement of
agreed facts verbatim. Certain of
the pleadings are incorporated into
the statement of agreed facts by reference. Such pleadings will not
be quoted herein and only
passages directly relevant to an issue
being considered by this court will be referred to as necessary.
9.
The statement of agreed facts was signed by a duly qualified legal
representative of each of the respective
parties and reads as
follows:
“
WHEREAS
the
Plaintiff and Defendants agreed that the Special Plea pertaining to
prescription may be determined by way of a special case
on the
following agreed facts:
1.
The Plaintiff is
ABEL DANIëL FERREIRA
t/a
BOSPRUIT
TRANSPORT
, a major male businessman, conducting a transport
business from 2[...] C[...] Street, Rustenburg.
2.
The First Defendant is
THE MINISTER OF POLICE c/o THE STATE
ATTORNEY
Woolworths Building, 1
st
floor, corner of
Chapel and Lennox Street, Kimberley.
3.
The Second Defendant is
CHRISTO PETRUS HORAK
a Lieutenant
General in the employ of the South African Police Service and
stationed at The Vehicle Identification Section, Upington.
4.
12 October 2009 (sic) and at Upington,
employees of the First Defendant acting within the scope of their
employment purported to
seize the vehicle driven by the Plaintiff’s
driver being an International Eagle 9700i motor vehicle with
registration C[...]
1[...] [...] and Chassis number: J[...] 5[...]
9[...] (hereinafter referred to as "
the
vehicle
"), whilst transporting
goods.
5.
The Defendants kept the said vehicle in
their possession from 12 October 2009 until 13 July 2016.
6.
On 15 October 2010 the Defendants purported
to declare the vehicle forfeited to the State.
7.
On 11 September 2015 this Honourable Court
set aside the Defendants’ purported forfeiture in terms of a
Judgment and Order,
annexed hereto marked “
A1”
and “
A2”
,
the contents of which are incorporated herewith.
8.
The Defendants applied for leave to appeal,
which was refused on the 4
th
of February 2016. The Judgment and order dated 19 February 2016 are
attached as annexures "
B1
"
and “
B2”.
9.
Due to the Defendants’ purported
seizure and forfeiture of the vehicle, the Plaintiff did not have
access to its vehicle until
its return to the Plaintiff on 13 July
2016. The Plaintiff could not utilize the vehicle in its transport
business which is conducted
from Rustenburg.
10.
The Plaintiff’s claims are based on
the alleged loss of income suffered and the alleged damages to the
vehicle discovered
by the Plaintiff on its return to the Plaintiff by
the Defendants.
11.
The Plaintiff issued Summons on 21 May 2018
and served same on 15 June 2018. The claim set out in the Summons was
for the loss of
income from the period 12 October 2009 to 30
September 2016 and damages caused to the vehicle whilst it was in the
possession of
the First Defendant.
LEGAL ISSUES
12.
Wherefore the following questions of law require adjudication:
12.1. The Defendants
pleaded prescription in terms of Section 12(1) of the Prescription
Act 68 of 1969 (hereinafter referred to
as "
the Act
");
12.2. The Defendants
contend that the debt shall not be deemed due until a creditor has
knowledge of the identity of the debtor
and of the facts from which
the debt rises (sic), provided that the creditor shall be deemed to
have such knowledge if he could
have acquired it by exercising
reasonable care; and
12.3. The Act provides
further that the debt shall become extinguished after the lapsing of
a period of 3 (three) years from the
date on which the debt becomes
due;
13.
Taking into consideration the date of service of the Summons as well
as the
date upon which the vehicle was allegedly unlawfully seized
and declared forfeited to the State, the Plaintiff should have at all
relevant times have knowledge about the identity of the debtor as
well as the facts from which the debt arose.
14.
As the cause of action/the date the debt become (sic) due was on 12
October
2009 when the vehicle was seized, alternatively when the
vehicle was declared forfeited to the State on 15 October 2010, such
debt
has become prescribed;
15.
The Defendants aver that the Plaintiff ought to have issued and
served Summons
within three years from the date the debt became due.
As Summons was only served on 15 June 2018, the Defendants aver that
the
debt has become prescribed.
16.
The Defendants’ Special Plea and Plea is incorporated herewith
by reference
thereto attached as annexures "
C
" (sic)
17.
The Plaintiff contends that the Defendants conduct constitutes a
depravation
of the Plaintiff's undisturbed and peaceful possession of
the vehicle which constituted a continuous wrong and which occurred
from
12 October 2009 until 13 July 2016. The Plaintiff contends that
they only became aware of the facts on which the debt arose after
13
July 2016, being the date upon which the vehicle was returned by the
Defendants in terms of a Court Order and the Plaintiff
could only
become aware of its damage once the vehicle was returned.
18.
Until the Court has reviewed and set aside the Defendants’
decision to
seize and forfeit the Plaintiff’s vehicle, the
Plaintiff could not obtain possession of its vehicle.
19.
The Plaintiff contend (sic) that it issued Summons within three years
from the
date of 13 July 2016, being the date upon which it became
aware of its claim.
20.
The Plaintiff herewith incorporate (sic) by reference thereto his
reply to the
Defendants’ Special Plea of prescription and the
Particulars of claim. attached as annexures "
D
"
(sic)
The parties will file
full heads of argument setting out their legal submissions.”
10. The parties did
indeed file Heads of Argument. The arguments set out by the plaintiff
in the Heads of Argument were not always
consonant with the issues as
defined in the stated case quoted verbatim above. However, the facts
which form the basis of such
submissions remain unchanged and
undisputed. What this court needs to determine is whether the
plaintiff’s claims or portions
of such claims have become
prescribed by virtue of the provisions of Chapter III of the Act.
11. It is convenient to
start with the plaintiff’s claim relating to the damages to the
vehicle and the costs related to transporting
the vehicle so that it
could ultimately be repaired.
12. Initially, both the
defendant and the plaintiff sought to treat this aspect of the
plaintiff’s claim as an integral part
of the plaintiff’s
claim for loss of income. This suited the different narratives that
they were respectively promoting in
respect of the prescription or
otherwise, of the loss of income claim.
13.
However,
after debating this issue with both Ms De Kock who appeared for the
defendants and Mr Ackerman who appeared for the plaintiff,
they both
conceded that the claim for the transport and repair of the vehicle
was a separate ‘debt’ or claim. That
in terms of
section
12(3)
of the
Prescription Act
[1]
(the Act) the ‘debt’ would only have become due once the
plaintiff had become aware of the damage to the vehicle that
occurred
in storage and the need to incur the expense of transporting the
vehicle once the vehicle was restored to plaintiff’s
possession. On the facts as agreed to and set out above, this could
only have been on the 13 July 2016.
14. According to the
statement of agreed facts, the vehicle was returned to the plaintiff
on the 13 July 2016. Also, in terms of
the statement of agreed facts
summons in this matter was served on both defendants on the 15 June
2018. Accordingly, the relevant
period of three years contemplated in
section 11(d) of the Act, in respect of the claim for the necessary
transport and repairs,
had not lapsed from the debt becoming due to
the date of service of the summons. Accordingly, this claim relating
to the transport
and repair of the vehicle has not prescribed.
15.
In dealing
with the claim for loss of income, Ms De Kock argued on behalf of the
defendant that the applicable prescription period
of three years
contemplated in section 11(d) of the Act begins to run when the
plaintiff had knowledge of the minimum ‘facts’
required
to establish their claim. That a distinction needs to be drawn
between facts and legal conclusions that might be drawn
from such
facts. In making this submission, Ms De Kock relied on the following
authorities: Matokonya v Minister of Police
[2]
;
Minister of Finance & Others v Gore N.O.
[3]
;
and Yellow Star Properties 1020 (Pty) Ltd v MEC Department of
Development Planning and Local Government, Gauteng
[4]
.
16.
Ms De Kock
submitted, in the context of extinctive prescription, wrongfulness in
a delictual claim is not a fact, but a legal conclusion.
As authority
for this contention Ms De Kock relies upon the following cases:
Matokonyana’s case
[5]
; and
the case of The President of the Republic of South Africa &
Another v Tembani & Others
[6]
.
17.
Ms De Kock
further submitted that legal certainty is not required for extinctive
prescription to start running. As authority for
this contention Ms De
Kock relied upon the judgment of Moseneke J (as he then was) in the
matter of Eskom v Bojanala Platinum District
Municipality and
Another
[7]
.
18. On the facts, Ms De
Kock submitted that, the plaintiff himself pleaded in a way that
demonstrated that he had knowledge of the
facts that were required to
prosecute his claim on the 12 October 2009 being the date on which
the relevant vehicle was seized
near Upington.
19. In support of this
contention, Ms De Kock refers to paragraphs 8 and 11 of the latest
amended Particulars of Claim dated the
6 June 2024. Paragraphs 8 and
11 of the said Particulars of Claim reads as follows:
“
8.
On 12 October 2009 and until 13 July 2016 the Defendants unlawfully
deprived the Plaintiff of his
possession by seizing the vehicle at or
near UPINGTON.”
AND
“
11
When the seizure by Warrant Officer Tiedt and subsequent unlawful
deprivation by the Second Defendant
occurred, the defendants knew or
ought to have known:
11.1
That the vehicle was used and ought to have been used by the
Plaintiff to undertake transport for a (sic) remuneration.
11.2
The unlawful deprivation of the vehicle will interrupt the
plaintiff’s business of undertaking transport.
11.3
Such interruption will cause Plaintiff to suffer a loss of income.
11.4
That the storage of the vehicle for the period between 12 October
2009 to 25 May 2016 will damage the vehicle and
render it
unroadworthy.
11.5
That the repairs to the vehicle would have to be undertaken by the
Plaintiff, in order to restore the vehicle to
roadworthiness in order
to be used for transport purposes.”
20. Ms De Kock submitted
that it is evident from the pleadings quoted above that from the date
the vehicle was seized, the plaintiff
had knowledge of the facts
required to pursue their claim.
21. Insofar as it goes,
Ms De Kock’s submissions are correct. However, when I pressed
her as to what changed when the forfeiture
order was issued in
respect of the relevant vehicle, she maintained that nothing had
changed. Her position was that both the seizure
and the forfeiture
orders were administrative steps. She argued that it was still a
single incident upon which the plaintiff’s
claim was based.
That the plaintiff had knowledge of the essential facts that made up
the basis of their claim on the 12 October
2009. That by the time
summons was served on the 18 June 2018 any claim that the plaintiff
might have had, had prescribed by virtue
of the provisions of section
11(d) of the Act.
22. Mr Ackerman for the
plaintiff initially argued that the seizure and forfeiture of the
relevant vehicle was a unitary or single
ongoing injury to the
plaintiff. That the plaintiff could only institute the action once
the ongoing injury had been brought to
an end by the judgment
reviewing and setting aside the forfeiture order. That prescription
would only run from the date that the
application for leave to appeal
the review judgment was refused alternatively from the date that the
possession of the vehicle
was restored to the plaintiff.
23. I similarly pressed
Mr Ackerman as to what changed when the forfeiture order was made.
Initially Mr Ackerman maintained that
it was an administrative action
that deprived plaintiff of his right, title and interest in the
vehicle which would only be restored
once the forfeiture order had
been reviewed and set aside. I did not think that the issue of the
plaintiff’s right title
and interest in the said vehicle was
the answer to the problem at hand. As I believed this was a critical
issue that needed to
be answered one way or the other, I gave Mr
Ackerman a short adjournment to gather his thoughts on this question.
24. Mr Ackerman’s
response after the adjournment changed my perspective on the matter.
Mr Ackerman referred me to the word
‘debt’ as it is used
in Chapter III of the Act. He pointed out that ‘debt’ as
it is used in the said Chapter
of the act has two elements to it.
Firstly, an obligation that must be fulfilled or paid, depending on
the circumstances. Secondly,
a duty to fulfil that obligation or make
the relevant payment as circumstances dictate. Mr Ackerman submitted
that after the forfeiture
order the defendants were no longer obliged
to pay plaintiff any damages he suffered whilst the forfeiture order
was in force.
25. Mr Ackerman submitted
that in these circumstances prescription could not run against the
plaintiff as the defendants would not
be obliged to pay the
plaintiff’s claim while the forfeiture order stood. In other
words, no debt as contemplated in Chapter
III of the Act existed
whilst the forfeiture order was in place. That this remained the
position until the forfeiture order was
reviewed and set aside.
26.
It is
necessary to round out Mr Ackerman’s argument before proceeding
to consider the meaning ascribed to the word ‘debt’
by Mr
Ackerman in the context of Chater III of the Act. Mr Ackerman
proceeded to argue that the forfeiture order had legal effect
until
it was set aside. As authority for this proposition Mr Ackerman
referred me to a passage in the judgment of Oudekraal Estates
(Pty)
Ltd v The City of Cape Town & Others
[8]
.
The relevant passage of the Oudekraal judgment reads as follows:
“
For
those reasons, it is clear, in our view, that the Administrator’s
permission was unlawful and invalid at the outset. Whether
he
thereafter also exceeded his powers in granting the extensions for
the lodgement of the general plan thus takes the matter no
further.
But the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully.
Is the permission
that was granted by the Administrator simply to be disregarded as if
it had never existed? In other words, was
the Cape Metropolitan
Council entitled to disregard the Administrator’s approval and
all its consequences merely because
it believed that they were
invalid provided that its belief was correct? In our view, it was
not. Until the Administrator’s
approval (and thus also the
consequences of the approval) is set aside by a court in proceedings
for judicial review it exists
in fact and it has legal consequences
that cannot simply be overlooked. The proper functioning of a modern
State would be considerably
compromised if all administrative acts
could be given effect to or ignored depending upon the view the
subject takes of the validity
of the act in question. No doubt it is
for this reason that our law has always recognised that even an
unlawful administrative
act is capable of producing legally valid
consequences for so long as the unlawful act is not set aside.”
[9]
27.
Turning now
to consider the meaning of the word ‘debt’ in the context
of Chapter III of the Act. As a point of departure,
it must be noted
that the
Prescription Act intrudes
on the right of access to courts.
When interpreting the word ‘debt’, in accordance with
section 39(2) of the Constitution
[10]
the interpretation to be used is the one that is least intrusive on
the right to access the courts.
[11]
28. The word ‘debt’
is not defined in the Act. Also, there is no definition of the word
‘debt’ specific
to Chapter III of the Act.
29. Next, in the context
of Chapter III of the Act, it seems that the use of the word ‘debt’
in that chapter contemplates
a claim against the debtor either to
perform an obligation or pay an amount of money. This aspect of the
meaning to be ascribed
to the word debt is supported by the use of
the word ‘creditor’ in association with the word ‘debt’
in
sections 12 and 13 of Chapter III of the Act.
30. Also, in the context
of Chapter III of the Act, the word ‘debt’ also
contemplates a duty to fulfil the relevant
obligation or pay the
relevant amount of money claimed. This aspect of the meaning to be
ascribed to the word debt is supported
by the use of the word
‘debtor’ in association with the word ‘debt’
in sections 12 and 13 of Chapter III
of the Act.
31. Accordingly, the word
‘debt’ in the context of Chapter III of the Act
encompasses both the concept of having a claim
and the concept of an
obligation to discharge such claim.
32.
The
majority and the minority judgment in the Makate case seemed to
accept and apply the definition provided in the
New
Shorter Oxford Dictionary
,
which they quoted as being:
[12]
“
1.
Something owed or due: something (as money, goods or service) which
one person is under an obligation
to pay or render to another.
2.
A liability or obligation to pay or render something; the condition
of being so obligated.”
33. The above dictionary
definition also encompasses the concepts of having a claim on the one
part and having an obligation to
discharge that claim on the other
part.
34. That being so, I
think Mr Ackerman is correct whilst the forfeiture order stood, there
can be no question of the defendants
having an obligation to pay the
plaintiff’s claims. It follows then that Chapter III of the Act
can have no application whilst
the forfeiture order stood. Extinctive
prescription could not run whilst the forfeiture order was in place.
35. This has several
consequences. Firstly, from the date of seizure, being the 12 October
2009, to the date that the vehicle was
declared forfeit. There was
both a claim and an associated obligation hence a debt as
contemplated in Chapter III of the Act. Mr
Ackerman argued, without
conviction, that the review application interrupted prescription
under section 15 of the Act. In my view
this cannot be correct.
Section 15 of the Act contemplates “any process” whereby
the creditor claims payment of the
debt. The review application did
not by any means contemplate the payment of the debts currently
claimed. Accordingly, the plaintiff’s
claim for the loss of
income for the period commencing from the 12 October 2009 up until
the 14 October 2010 has become prescribed
as contemplated in section
11(d) of Chapter III of the Act. To this extent, the defendants’
special plea succeeds.
36. Secondly, the
claim for the period from the 15 October 2010 up until the vehicle
was returned to service to generate an
income has not become
prescribed because the existence of the forfeiture order meant that
the defendants were under no obligation
to pay the plaintiff’s
claim whilst such forfeiture order existed as a fact. Under these
circumstances Chapter III of the
Act could not and did not operate
against the plaintiff because no debt as contemplated by Chapter III
of the Act was due.
37. I do not have to
decide whether the extinctive prescription began to run again from
the day that the judgment in the review
was handed down or from the
date that the application for leave to appeal that judgment was
dismissed. As summons being served
on the 15 June 2018, both dates
fall within the three-year period contemplated by section 11(d) of
the Act. This renders a decision
on this question unnecessary. The
claim for loss of income from the 15 October 2010 until the relevant
vehicle was repaired and
returned to service by the plaintiff has not
prescribed.
38. What remains is to
determine the question of costs. In my estimation the defendants have
only been 20% successful in pursuing
their Special Plea. In the
circumstances the plaintiff is entitled to 80% of their costs. The
question raised before this court
was a novel one. Senior counsel
drew up the plaintiff’s Heads of Argument. Given the novelty I
think the use of senior counsel
to draw up the plaintiff’s
Heads of Argument was reasonable. Also based on the novelty of the
question put before the court,
I believe these costs should be taxed
on scale C. Such costs to include the costs of senior counsel where
senior counsel was actually
engaged.
In
the circumstances the following order is made:
1)
The plaintiff’s claim for loss of income generated from the
relevant vehicle for the period from 12 October
2009 up until the 14
October 2010 has become prescribed. To this extent the Special Plea
is upheld.
2)
The plaintiff’s claim for loss of income from the 15 October
2010 up until the vehicle was returned to
service has not prescribed.
To this extent the Special Plea is dismissed.
3)
The plaintiff’s claim for transport of and repairs to the
relevant vehicle has not prescribed. To this
extent the Special Plea
is dismissed.
4)
The plaintiff is entitled to 80% (eighty per centum) of their costs
in respect of the special plea and the
stated case. Such costs are to
be taxed on scale C and are to include the costs of senior counsel
where senior counsel was actually
engaged.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
Representation:
For
The Plaintiff:
Mr
Ackermann
Instructed
by:
Van
De Wall Inc.
For
The Defendants:
Adv
D De Kock
Instructed
by:
Office
of the State Attorney
Date
of Hearing:
31
July 2024
Date
of Judgment:
16
August 2024
[1]
Act 68 of 1969.
[2]
2018 (5) SA 22
(CC) at para [36].
[3]
2007
(1) SA 111
(SCA) at para [17].
[4]
2009
(3) SA 577
(SCA) at page 590H-I.
[5]
Footnote 2 above at paras [44] to [45].
[6]
[2024] ZACC 5
(6 May 2024) at para [86].
[7]
2003 JDR 0498 (T) at para [16].
[8]
2004 (6) SA 222 (SCA).
[9]
Oudekraal judgment., above (footnote 8)., at para [26].
[10]
The Constitution of the Republic of South Africa., Act 108 of 1996.
[11]
Makate v Vodacom Ltd
2016 (4) SA 121
(CC) at para [91].
[12]
Makate case., above., at pp 149H and 188F