IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
DANIE KLUE
and
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
Coram: Naidoo J et Van Rhyn J et Mahlatsi AJ
Heard: 11 October 2024
Delivered: 6 January 2025 Reportable / Not reportable
Case no: A 188/2023
APPELLANT
RESPONDENT
Summary: Appeal-civil claim for compensation for wrongful conviction -cause of action -
failure to act in accordance with duty of care by magistrate and judges -
special pleas of prescription and non-compliance with notice in terms of Act 40
of 2002 -new point rais·ed at hearing of appeal -pleadings not amended
accordingly. Appeal dismissed.
ORDER
1. The appeal is dismissed with costs which costs shall include the Respondent's
2
counsel fees on Scale B as provided for in Rule 67 A read with Rule 69.
JUDGMENT
Van Rhyn J (Nai_doo Jet Mahlatsi AJ concurring)
[1] The appell~nt, Mr Danie Klue, (the plaintiff in the court a quo) instituted a delictual
claim for compensation against the Minister of Justice and Correctional Services, the
respondent (cited as the defendant in the court a quo), for damages emanating from criminal
proceedings instituted by the State. This is an appeal against the whole of the judgment of
Loubser J, delivered on 18 April 2023, when the following order was made:
'1. The special plea relating to non-compliance with the provisions of Act 40 of 2002 is
upheld.
2. The special plea relating to prescription is upheld.
3. The action instituted by the plaintiff against the defendant is dismissed with costs.'
The matter comes before us with leave from the Supreme Court of Appeal.
[2] The relevant facts pertaining to the claim instituted by the appellant are as follows: The
appellant was arraigned at the Regional Court, Bloemfontein on one charge of sexual assault
in contravention of s 5(1) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 and two charges of rape in contravention of s 3 of the Sexual
Offences Act of a minor child. He was convicted on 26 November 2013 and sentenced in
respect of the 3 counts to an effective term of life imprisonment on 3 December 2013. The
appellant's application for leave to appeal against the conviction was dismissed. Leave to
appeal the sentences imposed was granted by Regional Magistrate Sepato (the 'magistrate')
on 27 January 2014.
[3] The appellant filed a petition with the High Court, Free State Division, requesting the
Judge President for leave to appeal against his convictions. The petition was dismissed on 9
December 2015. On 27 February 2017 the Supreme Court of Appeal granted the appellant
leave to appeal to the High Court in respect of count 1, the charge of sexual assault. The
Supreme Court of Appeal pointed out that the appellant had an automatic right of appeal in
3
respect of counts two and three pertaining to which sentences of life imprisonment were
imposed by the trial court. On 4 December 2017 the appeal was heard by Mbhele J and
Chesiwe AJ (the 'two judges' or 'judges'). On 9 March 2018 judgment was handed down in
terms whereof the appellant unsuccessfully appealed against the conviction and sentences
in the Free State High Court. The appellant approached the Supreme Court of Appeal for
special leave to appeal against the judgment of the two judges. The application for leave to
appeal was heard on 18 February 2020 and on 21 April 2020 the Supreme Court of Appeal
overturned the appellant's convictions and sentences.
[4] By that time, consequent upon his conviction, the appellant had served a term of
imprisonment of seven years. He had been detained for a period of two years prior to his
conviction with the result that he was incarcerated for a period of approximately 9 years.
Plaintiffs first letter of demand addressed to the defendant is dated the 19th of August 2020.
Summons was issued on 22 April 2021 and served at the offices of the State Attorney,
Bloemfontein on 26 April 2021. An amendment to the particulars of claim was effected on 17
December 2021. The appellant originally relied upon an alleged breach of duty of care by the
Regional Magistrate as a cause of action. The amended particulars of claim included an
alleged breach of duty of care by the two judges who heard the appeal on 4 December 2017.
[5] The plaintiffs cause of action as formulated in the amended particulars of claim is that
the trial magistrate and the judges '. . . had in breach of their duty in law which is a duty of care
towards plaintiff failed to carry out their functions with the necessary professional skill, care, and
application .. .'. It is pleaded that their conduct fell short of that expected from the reasonable
person in their position. It is furthermore averred that the magistrate and the judges were
biased towards the plaintiff, acted intentionally and maliciously, alternatively grossly
negligent, and, negligent in that the magistrate allowed the state prosecutor to lead
impermissible evidence, convicted the appellant on the charges ' ... in absence of a total lack
of credible evidence', failed to have regard to material inconsistencies and contradictions in the
State's case and failed to afford the appellant a fair trial in terms of s 35(3) of the Constitution.
Regarding the judges, it is alleged that they erred in finding that the evidence presented by
the complainant was reliable. Paragraph 10 of the amended particulars of claim reads as
follows: 'The Plaintiff's cause of action arose and/or was completed or has fully accrued on 21 April
2020 when the Supreme court of Appeal upheld the Planiff s appeal'.
[6] In the respondent's questionnaire in terms of the provisions of rule 37 of the Uniform
4
Rules of Court, the appellant was requested to make, inter a/ia, the following admissions:
'3.12 The Plaintiff's alleged cause of action is that the trial court (Magistrate Sepato) breached a duty
of care she had during the trial in the magistrates court towards the plaintiff.
3.13 The Plaintiff's alleged cause of action arises from actions/omissions during the criminal trial,
which concluded with the sentencing of the Plaintiff on 3 December 2013.'
The plaintiff admitted both questions as contained in paragraphs 3.12 and 3.13. It was added
that the appellant's cause of action furthermore includes a breach of duty of care by the judges
as set out in the amendment dated 17 December 2021. The first letter of demand by the
appellant referred to his unlawful arrest as cause of action. A second letter of demand is
dated the 22nd of September 2020. In the second letter of demand the breach of duty of care
of the magistrate towards the appellant, in that she intentionally and maliciously, alternatively,
negligently failed to carry out her functions with the necessary professional skill, care and
application was indicated to be the cause of action relied upon by the appellant.
[7] It is averred that the magistrate as well as t_he judges are under the defendant's control,
supervision and guidance and therefore vicarious liability has been established. The plaintiff
pleaded that both the magistrate and the judges_ acted within the course and scope of their
employment with the defendant. The appellant pleaded that as a consequence of the 'wrongful
and intentional alternatively wrongful negligent conduct' of the magistrate and the judges, he was
imprisoned and allegedly suffered general and special damages, inter a/ia, for 'contumelia,
impairment of dignity for pain, suffering, discomfort, loss of amenities of life and psychological trauma'
in the total amount of R4 500 000 and with further specific amounts in respect of special
damages for loss of earnings and medical costs. The appellant claims_ payment of the total
amount of R7 270 000 with interest from date of service of summons and cost of suit from the
respondent.
[8] Save for two special pleas of, firstly non-compliance with the provisions of the
Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the 'Act')
and secondly, prescription of the appellant's claim in terms of the provisions of s 11 of the
Prescription Act 68 of 1969 ('Prescription Act'), the respondent denied any wrongful conduct
by the magistrate and by the judges or that they, being the two judges, persisted with any
wrongful action allegedly committed by the magistrate . In paragraph 13 of the respondent's
amended plea, it is denied that the magistrate and the judges breached their duty of care
5
towards the appellant and failed to carry out their functions with the necessary professional
skill, care and application. The respondent pleaded that the appellant failed to set out the
nature and extent of the alleged duty of care which the magistrate and the judges allegedly
had towards the appellant. It was furthermore pleaded by the respondent that the appellant
also failed to set out in what manner the presiding officers did not carry out their functions
with the necessary skill, care and application nor did plaintiff set out in what manner the
conduct of the presiding officers allegedly fell short of that expected from the reasonable
person in their position. Alternatively, the appellant failed to plead how the presiding officers
should have conducted themselves differently.
[9] At a pre-trial conference the parties agreed that the two special pleas would be argued
first and separately from the merits and the quantum of the appellant's claim. The matter
came before Loubser J on 7 February 2023 for the hearing of the two special pleas. Judgment
was handed down on 18 April 2023. It is the judgment on the two special pleas that forms the
subject of this appeal. The court a quo held that in as far as the appellant relies on a breach
of duty of care of the magistrate as well as a breach of duty of care of the judges, his cause
of action arose at the latest on the 17 of Jaruary 2014 and 9 March 2018 respectively with
the result that any claim he may have had, Has been extinguished by prescription.
[1 OJ The appellant's grounds on which thl appeal is based can concisely be summarized
as follows: The court a quo erred in:
(a)
(b)
(c) upholding the two special pleas by finding that the appellant's cause of action was
not completed or has not fully accrued on 21 April 2020 when the Supreme Court
of Appeal upheld the appellant's appeal;
I
finding that the debt was not d~e on 21 April 2020 and that the notices delivered
in terms of the Act was therefore not timeously sent to the respondent ;
failing to find that on 21 April 2020, anld only then, everything has happened which
would entitle the appellant to institute action and pursue his claim and therefor
appellant's cause of action was only 1completed or has fully accrued on the said
date;
( d) not interpreting the applicable case I law pertaining to the matter correctly and
failing to take into account that the appellant was prevented from issuing summons
due to superior force as contemplated in s 13 of the Prescription Act; and
(e) failing to take into account that a valid court order existed as issued by the
Regional Court, Bloemfontein and that the aforesaid court order was not unlawful,
until being overturned. 6
(11] The arguments relied upon by the appellant as it appears in the heads of argument
are, inter alia, that the judgment handed down by the magistrate was lawful and remained
lawful until being overturned by the Supreme Court of Appeal. It would have been untenable
for the appellant to issue summons for damages prior to the conviction being overturned on
the basis that the respondent would have pleaded such claim to be premature. Therefore, the
cause of action was fully accrued on 21 April 2020. Apart from the above, the appellant
furthermore contends that he was prevented from issuing summons due to a superior force
(or order of court) as contemplated in s 13(a) of the Prescription Act.
(12] In the heads of argument submitted by Ms Wright, counsel on behalf of the respondent,
the contention pertaining • to the non-compliance with the provisions of the Act is that no
replication was served in response to the allegation in the amended plea that the required
letter of demand was sent more than six months after the appellant's cause of action arose.
Insofar as the appellant relies on a breach of a duty of care by the magistrate, his cause of
action arose on 3 December 2013, alternatively on 27 January 2014. In as far as the appellant
relies on a breach of duty of care by the judges, the cause of action arose on 9 March 2018.
Neither of the two letters of demand indicate the appellant's intention to claim damages
following from any wrongdoing by the judges who had dismissed his appeal.
(13] The respondent furthermore contends that the allegations regarding the alleged
wrongdoing by the judges who had dismissed the appellant's appeal were only included in
the particulars of claim by way of an amendment on 17 December 2021. The respondent
carries the burden of proof in respect of the plea of prescription, but only insofar as the
provisions of s 12 of the Prescription Act are applicable. Section 13 of the Prescription Act
provides that in the event that a creditor is prevented by superior force from interrupting the
running of prescription, the period of prescription is postponed and will not be completed
before a year has lapsed after the day when he was so prevented. During arguments before
the court a quo, the appellant did not rely on s 12(3) of the Prescription Act which provides
that a debt shall not be deemed to be due until the creditor has knowledge of-
(a) the identity of the debtor; and
7
(b) the facts from which the debt arises.
From the contents of the heads of argument filed by the appellant, he now not only relies on
the provisions of s 12 (3) but also on s 13 of the Prescription Act.
[14] During argument Mr Pretorius, counsel on behalf of the appellant, indicated that as a
result of his misunderstanding of the law of delict he had erroneously persisted with the
argument that, at the time of the conviction of the appellant on 26 November 2013, a wrong
was committed. As a result, and in accordance with his incorrect appreciation of the law, the
argument previously on behalf of the appellant was that a delictual debt arose with the
conviction of the appellant. However, since perusing the heads of argument filed by the
respondent on the day prior to the hearing of this appeal, Mr Pretorius is now convinced that
no cause of action or set of facts from which· a delictual claim arises existed at the time of the
conviction of the appellant on 26 November 2013. This concession was made notwithstanding
Mr Pretorius's contention at the commencement of the hearing of the appeal that the
conviction of the appellant by the trial magistrate was unlawful.
[15] Mr Pretorius argued that the court a quo incorrectly applied the law of prescription to
the facts of the matter. The belated argument on behalf of the appellant, that no cause of
action or set of facts from which a delictual claim arises existed at the time of the conviction,
was not dealt with at the hearing in the court a quo. This argument was also not dealt with in
the heads of argument filed in this appeal. No supplementary heads of argument were filed.
Thus, the argument goes, the period of six months in terms of the Act as well as the period of
three years in terms of the Prescription Act only commenced on the date upon which the
Supreme Court of Appeal overturned the conviction, being 21 April 2020. The debt became
due on the said date with the result that the appellant has complied with the provisions of the
Act and his claim against the respondent had not been extinguished by prescription. The
appellant therefore prays that the appeal be upheld, that the two special pleas be dismissed
and his claim be reinstated with a cost order in favour of the appellant.
[16] Ms Wright, notwithstanding the complete turnabout in the legal arguments by
appellant's counsel, argued that even if the delict arose when the Supreme Court of Appeal
overturned the conviction , the cause of action still remains as pleaded in the appellant's
particulars of claim. The appellant did not request an opportunity to amend the particulars of
claim. The appellant averred in the particulars of claim that he suffered patrimonial loss as a
8
consequence of the breach of a duty of care by the trial magistrate and the judges who were
biased towards the plaintiff and acted intentionally and maliciously alternatively negligently.
This, as pleaded by the appellant, occurred during 2013 up to March 2018. As already
referred to above, the appellant in the rule 37 questionnaire indicated that the cause of action
is confined to the issue of the breach of a duty of care by the magistrate and the judges and
not malicious proceedings by the defendant.
[17] The respondent contends that this is what ultimately served before the court a quo.
The court a quo did not deal with the new argument as same was only raised at the hearing
of this appeal. The respondent, even if the appeal succeeds on the new point raised by the
appellant, should in any event not be mulcted with costs. Regarding the 'old argument', the
question is how does the concession that no delict occurred at the time of the conviction of
the appellant by the trial magistrate nor when the judges dismissed his appeal, impact upon
the adjudication of the matter on appeal. Furthermore, how should this court then deal with
the assertion that the regional magistrate and the judges acted with bias towards the
appellant, intentionally, alternatively negligently or even grossly negligently, by allowing
impermissible evidence during the criminal trial, by disregarding the inconsistencies and
contradictions in the State's case and by failing to carry out their functions with the necessary
professional skill and care, when the appellant now contends that no wrongful and negligent
act or omission existed as pleaded in the particulars of claim, but were only established later.
[18] A party should generally not be allowed to argue new issues on appeal that were not
raised or considered by the lower court. A question of law may be advanced for the first time
on appeal if its consideration then involves no unfairness to the party against whom it is
directed.1 A second requirement for the raising of a new point on appeal is that the point must
be covered by the pleadings .2 There are exceptions and circumstances when a party may be
allowed to rely on an issue which was not covered in the pleadings. In Barkhuizen v Napier
2007(5) SA 323 the Constitutional Court held as follows regarding a point_of law raised for
the first time on appeal:
'39. The mere fact that a point of law is raised for the first time on appeal is not in itself sufficient
reason for refusing to consider it. If the point is covered by the pleadings, and if its consideration on
1 Bank of Lisbon and South Africa Ltd v The Master and Others 1987 ( 1) SA 276 (A) at 290D-F.
2 Cole v Government of the Union of SA 1910 AD 263 at 272-273.
9
appeal involves no unfairness to the other party against whom it is directed, this Court may in the
exercise of its discretion consider the point. Unfairness may arise where, for example, a party would
not have agreed on material facts, or on only those facts stated in the agreed statement of facts had
the party been aware that there were other legal issues involved. It would similarly be unfair to the
other party if the law point a.nd all its ramifications were not canvassed and investigated at trial.'
[19] There are material differences between malicious legal proceedings and wrongful
legal proceedings. The cause of action for a claim for damages caused by malicious criminal
proceedings is the actio iniuriarum. The plaintiff bears the onus in respect of all the elements
of the actio iniuriarum.3 To succeed with a claim for malicious prosecution, a claimant must
allege and prove that:
(a) The defendants set the law in motion -they instigated or instituted the proceedings;
(b) the defendants acted without reasonable and probable cause;
(c) the defendants acted with 'malice' (or animo iniuriand1) -that is, with the intention to
injure the plaintiff; and
(d) the prosecution failed. 4
[20] The actio Jegis Aqui/iae enables a plaintiff to recover patrimonial loss suffered through
a wrongful and negligent act or omission of the defendant. Liability depends on the
wrongfulness of the act or omission of the defendant. The plaintiff must allege and prove the
act or omission on which the cause of action is based and must allege and prove the facts
from which wrongfulness can be inferred. If wrongfulness cannot be inferred from the nature
of the loss suffered, the defendant's legal duty to the plaintiff must be defined and the breach
alleged. If a specific breach of duty (such as a public authority's duty) is relied on, the nature
of the duty must be stated.5
[21] The purpose of pleadings is to define the issues for the other party and the trial court
and for that matter, any court of appeal. It is the duty of the court to adjudicate upon the
disputes and those disputes alone.6 Since the object of pleadings is to define the issues
between them, the parties should, as a rule, be held to their cases as pleaded. A court
deciding a case may not have recourse to issues falling outside the pleadings. In South
3 Rudolph and Others v Minister of Safety and Security 2009 (5) SA 94 (SCA).
4 Minister of Justice and Constitutional Development and others v Moleko (2008] 3 All SA 47 (SCA); 2009 (2)
5 lndac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A).
6 Barkhuizen v Napier 2007 (5) SA 323 (CC) para 39.
10
African Police Service v Solidarityobo Barnard2014 (6) SA 123 (CC) the Constitutional Court
held as follows regarding the question whether a party may be permitted to raise a new cause
of action on appeal:
'[202] It is a principle of our law that a party must plead its cause of action in the court of first instance
so as to warn other parties of the case they have to meet and the relief sought against them. This is
a fundamental principle of fairness in the conduct of litigation. It promotes the parties' rights to a fair
hearing which is guaranteed by section 34 of the Constitution.'
[22] The cause of action simply means the cause of the plaintiffs (or applicant's) complaint.
In a civil action, the cause of action comprises different elements which consists of the
combination of facts that are material and which must be alleged in the papers and proved in
court in order to be entitled to the relief the plaintiff is seeking from the defendant.7 Sections
12(1) and (3) of the Prescription Act provide as follows:
'(1) Subject to the provisions of subsection (2), (3), and (4), prescription shall commence to run as
soon as the debt is due.
(2) ...
(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.'
[23] The word 'debt' was described in Drennan Maud & Partners8 as follows: 'In short, the
word "debt" does not refer to the "cause of action", but more generally to the "claim" ... In deciding
whether a "debt" has become prescribed, one has to identify the "debt", or, put differently, what the
"claim" was in broad sense of the meaning of that word.' For purposes of the Prescription Act the
term 'debt' has a wide and general meaning. It includes an obligation to do something or
refrain from doing something.9 The Supreme Court of Appeal dealt with the meaning of the
phrase 'debt due' in Truter and Another v Deysel 2006 (4) SA 168 SCA) and held as follows:
'For purposes of the Act, the term 'debt due' means a debt, including a delictual debt, which is owing
and payable. A debt is due in this sense when the creditor acquires a complete cause of action for
the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to
7 McKenzie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16 at 23.
e Drennan Maud & Partners V Pennington Town Board 1998 ( 3) SA 200 at 212G-J.
9 Barnett and Others v Minister of Land Affairs and'Others 2007(6) SA 313 (SCA) at 321I-J.
11
succeed with his or her claim against the debtor is in place or, in other words, when everything has
happened which would entitle the creditor to institute action and to pursue his or her claim.'10
[24] The appellant's case, now, is that his cause of action only arose and prescription only
started running after the Supreme Court of Appeal overturned the conviction on 21 April 2020.
This argument corresponds with a cause of action for claim for damages caused by malicious
criminal proceedings and wrongful conviction. It has to be kept in mind that the appellant
indicated in the Rule 37 proceedings that the claim is based upon a breach of a duty of care
and not malicious proceedings.
[25] It is settled law that prescription begins to run as soon as the debt is due and the
creditor knows the identity of the debtor and the facts giving rise to the debt. It has
authoritatively been held that knowledge of legal conclusions is not required before
prescription begins to run.11 The cause of action as pleaded in the particulars of claim has
not been amended to correspond with the argument raised at the hearing of the appeal. The
alleged breach of duty of care by the magistrate and the two judges remain the plaintiff's
cause of action for his claim for compensation for wrongful conviction . A right not provided
for in the Constitution is the right to be compensated for wrongful conviction or miscarriage
of justice. Since there is no constitutional or statutory right to claim compensation for wrongful
conviction, a claimant has to resort to the law of delict to claim compensation.
[26] In Nohour and Another v Minister of Justice and Constitutional Development 2020 (2)
SACR 229 (SCA) the accused were tried and convicted of kidnapping and rape. On appeal
to the Supreme Court of Appeal, the convictions and sentences were set aside. In their claim
for compensation for wrongful conviction the plaintiffs averred that the prosecutor omitted to
disclose facts relevant to the charges in the criminal trial to the regional court and to the
accused (the plaintiffs). The Supreme Court of Appeal held that the prosecutor's failure to
disclose the particular information 'was most certainly gross'.12 The Supreme Court of Appeal
discussed the relevant case law13 regarding negligence, wrongfulness and causation
pertaining to the law of delict and held as follows regarding the issue of wrongfulness:
'[14) Wrongfulness is an essential element in delict. The Constitutional Court held in this regard that
10 At para 15.
11 Mtokonyana v Minister of Police 2018 (5) SA 22 (CC) para 45-51.
12 Nohour and Another v Minister of Justice and Constitutional Development 2020 (2) SACR 229 (SCA) [1 O].
13 Minister of Safety and Security v Duivenboden 2002 (6) SA 431 (SCA); Kruger v Coetzee 1966 (2) SA 428
(A); Van Eeden v Minister of Safety and Security 2003(1) SA 389 (SCA); Le Roux and Others v Dey 2011 (3)
SA 274 (CC); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
12
the element of wrongfulness acts 'as a brake on liability' and that conduct is not to be regarded as
wrongful if public or legal policy considerations determine that it would be 'undesirable and overly
burdensome to impose liability'. In Le Roux and Others v Dey, the Constitutional Court confirmed
that the criterion of wrongfulness depends on a judicial determination as to whether it would be
reasonable ·to impose liability on the defendants, which reasonableness has nothing to do with the
reasonableness of the defendant's conduct or omissions. Therefore, even if it were to be found that
there was negligence herein, the mere fact of such negligence may not make the omission wrongful.
In order to prevent the 'chilling effect' that delictual liability in such cases may have on the functioning
of public servants, such proportionality exercise must be duly carried out and the requirements of
foreseeability and the proximity of harm to the action or omission complained of, should be judicially
evaluated.'
[27] I am of the view that the change in strategy cannot avail the appellant. Not only
because the point is being raised for the first time at the hearing of the appeal, but certainly
because the point of law is not covered by the pleadings. The plaintiffs cause of action is a
conflated claim based upon the actio inuriarum, actio legis Aquiliae and wrongful criminal
proceedings and conviction . The requirements for a claim based upon malicious proceedings
were not pleaded, nevertheless the expression 'malicious' was included in the particulars of
claim. It was on this basis that the plea, including the two special pleas, was drafted and filed
by the respondent. A delictual debt is generally due as soon as a delictual cause of action
arises because a delictual debt is not usually subject to a condition or prior agreement
postponing the time of performance. Therefore, with regard to prescription of a delictual debt,
it is particularly important to know when the cause of action arises. The generally accepted
concept of a delictual cause of action is that it consists of a combination of facts and legal
conclusions; namely an act, harm, causation, unlawfulness and, where applicable, fault.
When a delictual cause of action arises the defendant's debt becomes due and, subject to
the requirement of knowledge in terms of s 12(2) and (3) of the Prescription Act, the
prescription period begins to run.
[28] It is common cause that the new point taken on appeal was not argued in the court a
quo. In Notyawa v Makana Municipality and Another2020 (2) BCLR 136 (CC)14 Froneman J,
having regard to what the Constitutional Court had re-affirmed in Tiekiedraai Eiendomme
(Pty) Limited v Shell South Africa Marketing (Pty) Limited 2019 (7) BCLR 850 (CC) where
counsel raised a new point when the matter came before the Constitutional Court, expressed
14 Notyawa and Another v Makana Municipality [2019] ZACC 43; (2020) 41 ILJ 1069 (CC).
13
the court's disapproval of a litigant changing its case as the matter proceeded through the
various courts.15
[29] The appellant did not seek an amendment of the particulars of claim. I am not satisfied
that, had the new point been so raised earlier, respondent would not have been able to plead
facts which would have been an answer to the new point raised on appeal. The court a quo
dealt with the averments in the particulars of claim, as it still stands, and found that in as far
as the plaintiff relies on a breach of a duty of care by the magistrate, the appellant's cause of
action arose and the debt became due on 3 December 2013 being the date on which the
appellant was sentenced, alternatively, at the latest on the 27th of January 2014 being the
date on which the magistrate dismissed the appellant's application for leave to appeal. In as
far as the appellant relies on any wrongful and/or negligent conduct by the judges, the
appellant's cause of action arose on 9 March 2018, being the date on which the appeal was
dismissed. The court a quo considered the averment in the appellant's particulars of claim
that his cause of action arose and/or was completed or has fully accrued on 21 April 2020
when the Supreme Court of Appeal upheld the plaintiffs appeal in finding that the plaintiffs
cause of action did not arise on 21 April 2020 but that the plaintiff had acquired a complete
cause of action for the recovery of his debt, and that the entire set of facts which he had to
prove against the respondent was already in place when he was sentenced by the trial
magistrate on the 3rd of December 2016 and when the trial magistrate dismissed the
application for leave to appeal on 27 January 2014, respectively.
[30] Only on the 17th of December 2021 did the appellant amend his particulars of claim to
include the alleged conduct of the two judges. It was furthermore held that the appellant's
claim in relation to the conduct of the judges had already become prescribed on 10 March
2021, some nine months before the claim in this respect was included in the amended
particulars of claim. The court a quo held that the appellant's claim had already become
prescribed both in relation to the conduct of the magistrate and the judges by the time the
summons was served on 26 April 2021. As far as the prior notices in terms of the Act are
concerned, it was held that both these notices only referred to the conduct of the trial
magistrate and not the conduct of the High Court judges and therefor the notices did not
comply with the provisions of the Act. In any event, the said notices were delivered after the
expiry of a period of six months from date on which the debt arose.
1s Id at [59] and [60].
14
[31] The findings by the court a quo pertaining to prescription the notices in terms of the
Act cannot be faulted. On the basis that a party who takes a matter on appeal is bound by
the record of the case in the court a quo and cannot raise a new point by relying on arguments
or circumstances which does not appear, or which cannot be deduced, from the record, I am
of the view that the appeal ought to be dismissed.
[32] The further issue to be adjudicated upon is the matter of costs. At the hearing of the
matter, Mr Pretorius conceded that due to his lack of knowledge regarding the law of delict,
he misunderstood his client's claim against the respondent. He therefore conceded that he
did not argue the new point during the hearing in the court a quo and it has not been raised
in the heads of argument or mentioned to the other party until advanced in court during the
appeal. The respondent therefore argued that the appellant, Mr Pretorius's client should not
be mulcted with costs as a result of this concession in the event of the appeal being
unsuccessful. The respondent furthermore argued that, in any event, the respondent should
not be ordered to pay the costs of the appeal. Ms Wright argued that Mr Pretorius, in person,
should be responsible for the costs of the appeal.
[33] The purpose of an award of costs to a successful party is to indemnify such_ party for
the expense to which he or she has been put through having been unjustly compelled to
initiate or defend litigation, as the case may be. Even the general rule that costs follow the
event is subject to the overriding principle that the court has a judicial discretion in awarding
costs. Mr Pretorius readily conceded that he is not fully acquainted with the law of delict. He
furthermore informed the court that he obtained guidance from a senior colleague on the day
prior to the hearing of the matter. This ultimately resulted in the change in the appellant's
approach to the matter. However, it is unusual to order a legal representative to pay the costs
of litigation on the basis that counsel made an error of judgment concerning the applicable
legal principles. There is no indication that counsel on behalf of the appellant acted in an
irresponsible, grossly negligent or reckless manner. I am therefore not convinced that a
punitive costs order is called for having regard to the concession made by Mr Pretorius and
the prevailing circumstances of this matter.
15 •
[34] In the result I propose the following order:
1. The appeal is dismissed with costs which costs shall include the Respondent's
counsel fees on Scale Bas provided for in Rule 67A read with Rule 69.
I concur.
I concur.
and it is so ordered.
Appearances
For the Appellant:
Instructed by:
For the Respondent:
Instructed by: VAN RHYN J
ADV K PRETORIUS
JG KRIEK & CLOETE ATTORNEYS
BLOEMFONTEIN
ADV G J M WRIGHT
STATE ATTORNEY
BLOEMFONTEIN