IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
Case No: 2929/2021
CA59/2024
In the matter between:
SIPHOSAKHE SET MAN APPELLANT
and
MINISTER OF POLICE RESPONDENT
APPEAL JUDGMENT
DAWOOD J:
Introduction
[1] The appellant herein appeals, with leave of the court a quo, the order upholding
the special pleas and dismissing the appe llant’s action with costs. The court a
quo had adjudicated upon the special pleas by way of a stated case in terms of
Rule 33 (1) .
[2] The respondent had in its amended plea raised the following special pleas: -
(a) that the defendant failed to comply with the provisions of section 5
(1)(b)(ii) of The Institution of Legal Proceedings Act 40 of 2002
(hereinafter referred to as the “Act”) in that the plaintiff failed to serve the
summons on the Provincial Commissioner; and
(b) that the plaintiff’s claim had prescribed as summons was only served on
the defendant on the 12 April 2022, by which date the plaintiff’s claim had
already prescribed.
[3] The dispute s identified in the stated case by the parties were the following1:-
(a) whether or not the plaintiff must have caused his summons to be served
on both the National Commissioner and the Provincial Commissioner in
order to comply with the provisions of section 5 (1)(b) of the Act, or upon
just one of them.
(b) whether the plaintiff’s claim h ad prescribed as the summons w as only
served on the National Commissioner on 12 April 2022, more than 3 years
from the date on which the debt became due on the 24 January 2019 or
28 January 2019.
(c) The question s of law identified were the following: -
(i) whether the plaintiff complied with the provisions of section 5
(1)(b)(ii) of the Act;
1 See p age 85 of the bundles Vol 1 para graphs 14 and 15 .
(ii) whether the plaintiff’s claim has prescribed in terms of section 11
(d) of the Prescription Act 68 of 1969 (Prescription Act) ;
(iii) whether or not the service on the State Attorney interrupted the
running of prescription.
(d) The c ommon cause facts were the f ollowing : -
(i) It was accepted by both parties that indeed there was no service on
the Provincial Commissioner.
(ii) It was further accepted that service on the National Commissioner
(although the return of service states it was on the Minister of
Police) occurred on the 12 April 2022 , by which date the appellant ’s
claim had already prescribed.
(iii) The parties during argume nt in the court a quo accepted that
indeed service of the summons was effected on the state attorney.
(iv) The return of service of the summons was handed up during the
hearing of the appeal and it reflects that service was effected on
state attorney on the 11 October 2021, within the 3-year period.
(v) The parties further accepted that an appearance to defend was
filed by the State Attorney on behalf of the defendant , dated 9
November 2021 , within the 3-year period from the date the claim
arose. The appeara nce to defend reflects the Minister of Police as
the defendant and states that the defendant hereby gives notice of
his intention to defend the plaintiff’s action. It is signed by a state
attorney saying, “Attorneys for the Defendant”.
(vi) The appearance to defend was also handed up at the appeal as it
also did not form part of the record despite it being accepted by the
parties during argument in the court a quo .
[4] Legal position
(i) Section 5 of the Act reads as follows: -
“Service of process
5 (1) (b)(ii) Minister for Safety and Security is the defendant or
respondent, may be served on -
(aa) the National Commissioner of the South African
Police Service as defined in section 1 of the South
African Police Service Act, 1995 (Act No.68 of 1995);
or
(bb) the Provincial Commissioner of the South African
Police Service as defined in section 1 of the South
African Police Service Act, 1995 of the province in
which the cause of action arose; or …”
(ii) Section 15 (1) of the Prescription Act 68 of 1969 reads as follows:
“Judicial interruption of prescription
(1) The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt. ”
(iii) It is accepted in this case that there was no service on either the provincial
or national commissioner within the 3-year period , and if a legalistic
approach was adopted that would be the end of the matter in that the
plaintiff’s claim would have prescribed.
(iv) Our courts have , however , adopted a purposive approach2 which obliges
judges to interpret the law in a way that promotes the Constitution and the
rights entrenched therein .
(v) It is accepted that the purpose to be achieved in this matter was that the
respondent gets notice of the proceedings against it and receives effective
legal representation.
(vi) This purpose appears to have been achieved in this case if one has
regard to the fact that after service of the summons on the State Attorney
an appearance to defend was entered on behalf of the respondent . This
was followed by a plea wherein not only were the special pleas raised but
there was also an extensive plea over on the merits of the claim .
[5] There are numerous authorities that have dealt with the approach to be
adopted by the courts , which culminated in Miya’s case.3
2 Currie and de Waal define purposive approach in the following terms―
‘Purposive interpretation is aimed at teasing out the core values that underpin the listed
fundamental rights in an open and democratic society based on human dignity, equality and
freedom and then to prefer the interpretation of a provision that best supp orts and protects those
values. In this regard the Constitutional Court has approved the following statement by the
Canadian Supreme Court in R v Big M Drug Mart Ltd :
The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an a nalysis of
the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it
was meant to protect. In my view, this analysis is to be undertaken, and the purpose of the right or
freedom in question is to be sought, by reference to the character and larger objects of the Charter [of
Rights and Freedom] itself, to the language chosen to articulate the specific right or freedom, to the
historical origins of the concepts enshrined, and where applicable, to the meaning an d purpose of the
other specific rights and freedoms with which it is associated within the text of the Charter. The
interpretation should be…a generous rather than a legalistic one, aimed at fulfilling the purpose of the
guarantee and securing for individu als the full benefit of the Charter’s protection’’
3 Minister of Police and another v Miya (1250/2022) [2024] ZASCA 71 (6th of May 2024).
(a) The principle adopted in Miya’s case is on all fou rs with the facts in this
case although the relief sought there was to declare the particulars of
claim a nullity, the effect is the same as a dismissal of the plaintiff’s claim
which was sought herein.
(b) The defendant/respondent ’s contention is that this appeal relates to the
finding of prescription and whether the service of summons on the state
attorney interrupted the running of prescription of the debt against the
respondent.
(c) The court a quo in fact upheld both special pleas of prescription and non -
service on the Provincial Commissioner. The Act in fact envisages service
on either the National Commissioner or the Provincial Commissioner by
using the word or thereby signifying that service on e ither would be
appropriate . That special plea accordingly ought to have been dismissed
on the basis that service on both the National and Provincial
Commissioner was not required by the Act.
(d) The respondent correctly argues that the respondent and not the state
attorney is the debtor and that the Prescription Act states that the running
of prescription shall be interrupted by the service on the debtor of any
process (a process is any document whereby legal proceedings are
commenced) whereby the creditor claims payment of a debt.
(e) The respondent contend ed in its heads of argument and in court that
Miya’s case is distinguishable in that it dealt with a failure to serve
summons on the head of department which renders the summons a nullity
and did not decide the issue of prescription in terms of the Prescription
Act.
-
(f) In Miya’s case , the summons was served on the state attorney and not the
defendant. The state attorney filed a notice of intention to defend on behalf
of the defendant and thereafter a plea. In the amended plea the defendant
there had alleged that service on the state attorney alone is fatal and
renders the claim prescribed irrespective of the minister ’s participation in
the proceedings from inception . In argument th e defendant submitted that
the claim had prescribed due to non -service on the debtor, the minister ,
and according to section 15 (1) of the Prescription Act 68 of 1969, the
running of prescription shall be interrupted by the service on the debtor of
any proces s.
(g) The contention of the respondent’s counsel that Miya’s case did not deal
with the issue of prescription is accordingly incorrect . At paragraph 9 of
the judgment, it is explicitly stated that counsel for the
respondent /defendant argued that the appeal primarily rests on the issue
of prescription which was not dealt with by the high court . He argued, as in
this case , that the failure to serve the debtor cannot be condoned as the
service on him or his office was required to interrupt prescription . He
further argued in Miya’ s case that t he failure to serve cannot be condoned
as the Prescription Act is also peremptory on the issue of service on the
debtor. This is the very same argument that was adduced in this court by
the respondent ’s counsel.
(h) The court in Miya specifically stated at paragraph 10 of the judgment that
it would start the analysis of the merits with the issue of prescription and
stated that prescription does not arise in the context of this matter. The
court inter alia held that service on the state attorney was within the 3
years before prescription would begin t o run . It further held that the tenor
of the high court’s finding is simply that prescription had been interrupted
without saying so in so many words. The court accordingly held in Miya
that it is demonstrably clear that once the bridge regarding effective
service was crossed, the need for the high court to have analysed the
issue of prescription no longer existed …”
(i) At paragraphs 13 and 14 the court in Miya held as follows: -
“Consistent with the above principles as propounded in various judgments,
most recently, this Court rejected similar arguments raised by the Minister
in Molokwane . It remarked:
‘This approach received the imprimatur of the Constitutional Court
in African Ch ristian Democratic Party v Electoral Commission and
Others [2006] ZACC 1 ; 2006 (3) SA 305 (CC); 2006 (5) BCLR
579 (CC) para 25. There, it was held that the adoption of the purposive
approach in our law has rendered obsolete all the previous attempts to
determine whether a statutory provision is directory or peremptory on the
basis of the wording and subject of the t ext of the provision. The question
was thus ‘whether what the applicant did constituted compliance with the
statutory provisions viewed in the light of their purpose’. A narrowly textual
and legalistic approach is to be avoided.’
(j) The court further hel d:
‘There is also the injunction in s 39(2) of the Constitution, which enjoins
courts, when interpreting any legislation, to promote the spirit, purport and
objects of the Bill of Rights. Thus, where a provision is reasonably capable
of two interpretations, the one that better promotes the spirit, purport and
objects of the Bill of Rights should be adopted. The right implicated in this
case is that of access to courts, enshrined in s 34 of the Constitution.
Consistent with this injunction, th e interpretation of s 2(2) of the State
Liability Act must be one which promotes this right, by considering the
underlying purpose of the section, rather than merely its text. This
purposive approach is far more consistent with our constitutional values,
than reading the section narr owly and strictly, as preferred by the
appellants.’
The observations expressed in the preceding paragraphs accord with the
remarks quoted above which were made by the former Chief Justice
Mogoeng in the City of Tshwane v Afriforum ’.
(k) Miya ’s case at paragraph s 15 and 16 (supra ) found that Molo kwane ’s
case is all in fours with the present matter and that the principles of
interpretation that were dealt with in Molo kwane … apply to this matter
and that the question to be considered in interpreting this section is not
about how the knowl edge was obtained, but whether knowledge of the
action was obtained.
(l) Paragraphs 18 and 19 the court stated: -
“Apart from the fact that there was no basis laid by the Minister to
demonstrate that the principles already pronounced in Molokwane are
clearly wrong, this Court is not persuaded by the submission that the mere
fact that the non -service relates to the Minister changes the pic ture. The
particular facts and circumstances of this matter are telling, including the
context within which the issues arose which are: the statutory notice was
served on the Minister; the Minister gave instructions to the State
Attorney, an agent acting o n his behalf, to defend the matter by filing a
notice to defend; the Minister participated in all the stages of proceedings
until at trial. All of these demonstrate that the Minister was fully aware of
the proceedings against him. There was not even an iot a of prejudice
decried by the Minister as a result of this failure.
It is for these reasons that I conclude that the fact that the summons was
not served within the prescripts of s 2(2) of the State Liability
Act with particular reference to s 2(2) (a), is, on the facts of this case, not
fatal. This much is best accentuated by the following conclusion of the
high court which serves as the epicenter of the inte rpretation it affirmed:
‘It is not my finding that the State Attorney accepted the summons on
behalf of the first defendant nor that the State Attorney replaced the first
defendant as a debtor. The first defendant remained a debtor who was not
served with the court process but who ultimately became aware of the
summons (plaintiff’s claim) as he responded to it.’
The decision of the high court to dismiss the special plea was therefore
correct. The appeal must fail. ”
(m) It is e vident in this case that the Minister indeed obtained knowledge of the
action as the state attorney entered an appearance to defend on behalf of
the respondent and subsequently filed a plea on his behalf. The Minister
must have , as in Miya ’s case, given instructions to the state attorney or
agent acting on his behalf, to defend the matter by filing a notice of
intention to defend. The Minister, as in Miya ’s case, became aware of the
proceedings against him as he responded to it . There was in this case, as
in Miya’ s case, no prejudice alleged by the Minister , and none is found to
exist having regard to the plea over where a comprehensive defence is set
out in respect of the merits of the matter. There was effective service on
the Minister if one has regard to the fact that it actively participated in the
proceedings from the time the appearance to def end was entered on its
behalf by the state attorney , who from that point onwards acted as agents
of the respondent.
(n) In Miya ’s case , it was held that since service on the state attorney was
indeed effected within the 3 years before prescription could be said to run ,
it inferred that the high court had found that prescription had been
interrupted. The non-service on the Minister became moot when it fully
participated in the proceedings from the time that an appearance to
defend was filed on his behalf.
(o) This court is bound by the findings in Miya and respectfully agrees
therewith that since the purpose of the legislation was achieved within the
period of 3 years as demonstrated by the fact that an appearance to
defend was filed as well as a plea on behalf of the defendant , the claim in
the circumstances cannot be said to have prescribed. The purpose of the
Act was achieved despite non -compliance with the letter of the law. The
dicta of the court a quo in Miya’s case which was cited with approval by
the Supreme Court of Appeal in Miya’s case, is of equal application here
where it was explicitly stated that the state attorney does not replace the
respondent as the debtor who was not served with the court process, but
the respondent became aware of it and responded to it.
[6] In the circums tances the following order is made: -
(i) The appeal is upheld with costs on scale “B” including the costs of two
counsel where so employed.
(ii) The order of the High Court is set aside and replaced with the following
order :
The defendant’s special pleas are hereby dismissed with costs.
__________________________
F.B.A DAWOOD
JUDGE OF THE HIGH COURT
I agree.
_________________________
S.A COLLETT
ACTING JUDGE OF THE HIGH COURT
I agree.
_________________________
B. METU
ACTING JUDGE OF THE HIGH COURT
Appearances
For the appellant: Adv Cole SC with Adv Nabela
Instructed by: Msitshana Incorporated
6 St Patrick’s Road
EAST LONDON
Tel: 043 722 0603
For the respondent: Adv Mgidlana
Instructed by: Zilwa Attorneys
14 African Street
MAKHANDA
Heard: 25 November 2024
Delivered: 11 February 2025