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[2020] ZASCA 145
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Holden v Assmang Limited (1277/2019) [2020] ZASCA 145; 2021 (6) SA 345 (SCA) (5 November 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1277 /2019
In
the matter between:
LINDA
HOLDEN APPELLANT
and
ASSMANG
LIMITED RESPONDENT
Neutral
citation:
Holden
v Assmang Limited
(Case
no 1277/19)
[2020] ZASCA 145
(5 November 2020)
Coram:
PONNAN, MOLEMELA, DLODLO JJA, EKSTEEN and
UNTERHALTER AJJA
Heard
:
10 September 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 5 November 2020.
Summary
:
Prescription Act 68 of 1969
– when prescription started running
– result favourable to the plaintiff remains a requirement for
the completion of
the cause of action in a claim based on malicious
proceedings.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Seegobin J, Radebe J and Poyo
Dlwati J sitting as court of appeal):
1.
The appeal is upheld with costs and the order of the court a quo is
set aside and in its stead is substituted the following:
‘
The
appeal is dismissed with costs.’
JUDGMENT
DLODLO
JA (PONNAN and MOLEMELA JJA and EKSTEEN and UNTERHALTER AJJA
concurring)
[1]
This is an appeal against the judgment of the full court of
KwaZulu-Natal Division (Seegobin J, Radebe J and Poyo Dlwati
J), in terms of which the respondent’s appeal against the
judgment of Henriques J (sitting as the court of first instance),
dismissing the respondent’s special plea of prescription, was
upheld. The appeal is with the special leave of this court.
[2]
The appellant, Linda Holden, is a counselling psychologist registered
as such with the Health Professions Council of South Africa
(HPSCA).
The respondent, Assmang Limited, referred some of its employees to
various medical practitioners, including the appellant.
On 30
June 2008, the appellant was reported to the HPCSA by the respondent,
which accused her of being grossly in breach of her
professional
ethics. The respondent alleged, inter alia, that the appellant was
neither qualified nor competent to even attempt
to make a diagnosis
in respect of the disease of manganism. The respondent contended that
the diagnosis of manganism should only
be made by a medical
practitioner who specialised and is experienced in movement disorders
of a neurological nature, especially
as such disorders relate to
manganism.
[3]
On 29 September 2008, the appellant filed a detailed response in
writing together with supporting documents to the HPCSA. The
complaint was dealt with by the HPCSA’s Committee of
Preliminary Inquiry of the Professional Board for Psychology on 30
October 2009. On 13 November 2009, the HPCSA informed the appellant’s
senior counsel that the committee had accepted the appellant’s
explanation and had resolved not to take any further action against
the appellant. On 6 August 2012, the appellant instituted an
action
for damages against the respondent based on malicious proceedings.
[4]
The respondent raised two special pleas. The one relevant to
this appeal was that the appellant’s claim had prescribed.
The
matter served before Henriques J on 19 November 2014. The special
plea was dealt with as a separated issue in terms of Rule
33 (4) of
the Uniform Rules of Court. In dismissing the special plea with
costs, Henriques J reasoned that the appellant had pleaded
a case
premised on malicious prosecution and that consequently, the
prescriptive period would have started to run only once she
was
notified by the HPCSA on 13 November 2009 that no further action
would be taken against her. With the leave of Henriques J,
the
respondent appealed to the full court. The appeal to the full court
succeeded with costs. The order of Henriques J was set
aside and
replaced with one upholding the special plea with costs.
[5]
Section 12 of the Prescription Act 68 of 1969 (the Prescription Act)
reads:
‘
(1)
Subject to the provisions of subsection (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.’
[6]
The word ‘debt’ presents no controversy at all. It was
described in
Drennan
Maud
& Partners
[1]
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.’
[7]
The appellant’s case is that her cause of action only arose and
prescription only started running after the HPCSA notified
her that
the respondent’s complaint against her had been dismissed and
that was on 13 November 2009. 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. A
creditor who could have acquired the knowledge by exercising
reasonable care is deemed to have such knowledge.
[2]
It has
authoritatively been held that knowledge of legal conclusions is not
required before prescription begins to run.
[3]
[8]
In order to succeed, on the merits, with a claim for malicious
prosecution, a claimant must allege and prove:
‘
(a)
that the defendant set the law in motion (instigated or instituted
the proceedings);
(b)
that the defendant acted without reasonable and probable cause;
(c)
that the defendant acted with ‘malice or
animo
iniuriandi
);
and
(d)
that the prosecution has failed.
[4]
[9]
The importance of the
fourth requirement, which is the only one with which we are concerned
in this appeal, lies in the fact that
the claim can only arise if the
proceedings were terminated in the plaintiff’s favour.
[5]
That is so because a claim for malicious proceedings cannot
anticipate the outcome of proceedings yet to be finalised. To
hold otherwise would permit recognition of a claim when the
proceedings may yet be decided against the plaintiff.
[10]
A claim for malicious prosecution can ordinarily only arise after the
successful conclusion of the criminal case in a plaintiff’s
favour. In a criminal matter, such a favourable conclusion in the
plaintiffs’ favour would occur on acquittal or the withdrawal
of the charges. The institution of a civil claim based on
a malicious prosecution before such prosecution has been
finalised in
the plaintiff’s favour, may amount to prejudging the result of
the pending proceedings. There is no discernible
distinction between
pending criminal proceedings and proceedings before statutorily
created professional tribunals. The HPCSA
is such a tribunal. The
cause of action applies to both civil and criminal proceedings and
not only the latter.
[6]
[11]
Relying on
Gregory v Portsmouth City
Council
[2000] UKHL 3
;
(2000) 1 AC 419
, the respondent
contended that the strict principles of malicious presecution and the
requirement that the prosecution must have
failed do not apply as the
HPCSA is disciplinary body. In that matter Lord Steyn held that the
tort of malicious prosecution does
not extend to disciplinary
proceedings. The HPCSA is an important tribunal. Its decision can
have far reaching consequences. For
instance, if the appellant was
found guilty of being grossly in breach of her professional ethics,
she might have lost her licence
to practice. A statutory created
tribunal, such as the HPCSA, employs the formal machinery of a
criminal prosecution, with
sanctions that are punitive in
nature. It is closely analogous to and bears all of the hallmarks of
a criminal prosecution. It
is that which perhaps distinguishes it
from disciplinary proceedings before say a voluntary association or
even a City Council
as in
Gregory’s
case.
Thus, whatever the position may
be in those cases need not detain us here. That remains for another
day.
[12]
In
Thompson and Another v
Minister of Police and Another
[7]
Eksteen J held correctly as follows:
‘
In
an action based on malicious prosecution it has been held that no
action will lie until the criminal proceedings have terminated
in
favour of the plaintiff. This is so because one of the essential
requisites of the action is proof of a want of reasonable and
probable cause on the part of the defendant, and while prosecution is
actually pending its results cannot be allowed to be prejudged
by the
civil action (
Lemue v
Zwartbooi,
supra at p
.407
).
The action therefore only arises after the criminal proceeding
against the plaintiff have terminated in his favour or where the
Attorney-General has declined to prosecute. To my mind the same
principles must apply to an action based on malicious arrest and
detention where a prosecution ensues on such arrest, as happened in
the present case. The proceedings from arrest to acquittal
must be
regarded as continuous, and no action for personal injury done to the
accused person will arise until the prosecution has
been determined
by his discharge. (
Bacon
v Nettleton,
1906
T.H. 138
AT pp 142-3). From this it follows that the plaintiffs’
cause of action in respect of the alleged malicious arrest and
detention
in the present case can only have arisen on the
judgment of this court allowing the appeal against their conviction
in the
magistrate’s court, i.e on 29
th
April 1969. This means that, in giving notice to the second defendant
on 20
th
September, 1968 and issuing summons on 25
th
October, 1968, they were complying with the provisions of sec. 32 of
Act 7 of 1958, and it consequently becomes unnecessary for
me to
consider whether they were in fact required so to comply or whether
the second defendant was acting in pursuance of the Police
Act at the
time he was alleged to have committed the delict.’
[13]
The court of first
instance approached this matter in a manner similar to
Mandela
v Amsterdam
,
[8]
which was an appeal from the Magistrates’ court in respect of a
claim based on the institution of disciplinary proceedings
and to
which a special plea of prescription was raised. The court
characterised the cause of action as a claim for damages for
malicious proceedings. It dealt with the special plea raised on the
basis of a claim for malicious proceedings. It relied in that
regard
on the
Thompson
and
Els
judgments.
[9]
[14]
It is also not correct to contend that the greater part of the
appelant’s claim ís based on ‘contumelia,
impugning her professional dignity, reputation and professional
confidence’.This mischaracterises the cause of action. The
reading of the partiulars of claim and the respondent’s plea
thereto makes it clear that the whole cause of action is based
on
malicuois proceeedings.
[15]
In arriving at its conclusion, the full court appeared to place
reliance on the judgment of Froneman J in
Kruger
v National Director of
Public Prosecutions
.
[10]
The full court stated:
‘
In
the most recent judgment of the Constitutional Court in Kruger . . .
Froneman J for the majority of the court held as follows
at paragraph
78:
“
.
. . To prove malicious prosecution, the plaintiff here needed to
establish only (a) lack of reasonable and probable cause and
(b)
intent to injure (
animus
injuriandi
). Only
these two facts are relevant to this case as they are ‘the
facts from which the debt arises.’ Of these only,
the creditor
needs to have knowledge for prescription to start running in terms of
section 12(3). A plaintiff does not need to
know the further facts
that establish the absence of reasonable probable cause and intent to
injure.’’’
[16]
Importantly, that
observation by Froneman J must be placed in its proper context.
Froneman J was writing in response to the judgment
in that matter of
Zondo DCJ. The Deputy Chief Justice, with reference to the judgment
of this court in
Moleko
,
had set out the four elements or requirements for an action for
malicious prosecution.
[11]
He then added, ‘the requirements in (a) and (d) need not detain
us because they are not in issue’. Requirement (d)
is what has
occupied our attention in this appeal. Froneman J was thus
restricting himself to requirements (b) and (c), which,
for
convenience, he had labelled (a) and (b) respectively. Froneman J
therefore did not purport to restrict the requirements for
an action
based on malicious prosecution to only the two that he was
considering, as appears to have been supposed by the full
court. On
the contrary, Froneman J stated the following:
‘
Did
Mr Kruger’s claim prescribe? The only question to ask is
whether the facts known to him on the day the charge was withdrawn
were sufficient to ground the likely inference that there was no
reasonable and probable cause for his prosecution and that his
prosecution proceeded with intent to injure on the part of the public
prosecutor.’
[12]
[17]
A debt is
due, owing and payable within the meaning of
s 12(1)
of the
Prescription Act when
the creditor acquires a complete cause of
action for the recovery of the debt. What this means is that the
entire set of
facts which the creditor must prove in order to
succed with his/her claim against the debtor must be in place. In
other words,
when everything has happened which would have
entitled the creditor to institute action and to persue his/her
claim.
[13]
[18]
I conclude that from the aforegoing it is clear that the appellant’s
cause of action only arose and prescription only
started to run when
the HPCSA notified the appellant that the respondent’s
complaint against her had been dismissed. That
was on 13 November
2009. It was only then that the appellant would have been able to
establish the fourth and final requirement
for an action for
malicious prosecution. It follows that as at the date of summons, the
claim or debt had not prescribed.
[19]
The following order is made.
1. The appeal is upheld with costs and
the order of the court a quo is set aside and in its stead is
substituted the following:
‘
The
appeal is dismissed with costs.’
___________________
DLODLO JA
JUDGE
OF APPEAL
Appearances:
For
appellant:
A
JA Rall SC
Instructed
by:
Linda Payne Attorneys, Pietermaritzburg
Symington De Kock
Attorneys, Bloemfontein
For
respondent:
H C Bothma
Instructed
by:
Edward Nathan Sonnenbergs, Pietermaritzburg
Webbers
Attorneys, Bloemfontein
[1]
Drennan Maud & Partners
V Pennington Town Board
[1998] ZASCA 29
;
1998
(3) SA 200
at 212G-J.
[2]
See
s 12
of the
Prescription Act 68 of 1969
and
Mtokonyana
v Minister of Police
supra.
[3]
Mtokonyana v Minister of
Police
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC);
2018 (5) SA 22
(CC)
para 45-51.
[4]
Minister of Justice and
Constitutional Development and Others v Moleko
[2008]
ZASCA 43
;
[2008] 3 ALL SA 47
(SCA) para 8.
[5]
Els v Minister of Law and
Order
1993 (1) SA 12
(CC)
at 15F
.
[6]
Beckernstrater v Rottcher
1955 (1) SA 123
(A) at
135A-B.
[7]
Thompson and Another v
Minister of Police and Another
1971
(1) SA 371 (E).
[8]
Mandela
v Amstredam
2010
JDR O951 (ECG).
[9]
See
footnotes 10 and 12 supra.
[10]
Kruger v National Director
of Public Prosecutions
[2019]
ZACC 13; 2019 (6) BCLR 703 (CC).
[11]
See
paragrapgh 8 and footnote 4 supra.
[12]
Id para 81.
[13]
Footnote 4 para 16.