IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT, MTHATHA )
CASE NO: 926/2018
In the matter between:
ZWELIDUMILE GCAM -GCAM Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT
___________________________________________________________________
MAKAULA J:
A. Introduction
[1] The matter concerns two special pleas raised by the defendant in a matter
where the plaintiff is suing the defendant for unlawful arrest and detention. The
special pleas relate to (a) prescription in terms of sections 12 of the Prescription Act1,
(the Act) and (b) non - compliance with the Institution of Legal Proceedings Against
Certain Organs of State Act2 (the statutory notice) . Before th e matter proceeded,
1 Act 68 of 1996
2 Act 40 of 2002
the parties agreed on a special case in terms of Rule 33 of the Uniform Rules of
Court.
B. The stated case
[2] The facts and questions of law agreed upon by the parties are the following.
“Statement of agreed Facts .
1. The plaintiff is Zwelandile Alfred Gcam - Gcam an adult male of Nzabe
Administrative Area, Tsolo.
2. The First defendant is the Minister of Police who is sued vicariously in his
capacity as the official head of the South African Police Service.
3. The other offic ers are cited in their official capacities as they were acting
within the course and scope of their employment as police officers.
4. The Plaintiff sues for unlawful arrest and detention at the hands of the
police.
5. The plaintiff was arrested on the 6th June 2 009 on various charges
includ ing armed robbery, murder and other related charges.
6. He applied for bail but same was refused.
7. His trial commenced on 6th June 2011 until he was convicted on 20
November 2012.
8. On 23 November 2012 he was sentenced as follows: -
8.1 Conspiracy to commit robbery -10 years.
8.2 Robbery with aggravating circumstances -18 years;
8.3 Murder of Amanda Sibeko - life imprisonment: and
8.4 Murder of Mthobeli Ndamase - 15 years.
9. After sentencing the plaintiff applied for l eave to appeal and such leave
was refused.
10. The plaintiff petitioned the Supreme Court of A ppeal and was granted
leave to appeal to the Supreme Court of Appeal.
11. On the 2 March 2015 while still in custody the plaintiffs appeal was heard
by the Sup reme Court of Appeal with the judgment reserved.
12. On 25 March 2015, the Supreme Court of appeal found in favour of the
plaintiff upholding the appeal and setting aside both convictions and
sentences imposed on the plaintiff.
13. On the 18 May 2015 the plaintiff issued a statutory notice to the
Minister of Safety and Security in terms of the Institution of Legal
Proceedings Against Certain Organ of State Act 40 of 2002 (statutory
notice).
14. The statutory notice was issued almos t six (6) years after the date of
arrest and almost three months after his release on appeal.
15. The plaintiff has to date not made any application for condonation as
he insists that the notice was issued on time.
16. The plaintiff instituted the curren t proceedings against the defendants
on 27 February 2018.
17. The plaintiff’s action was instituted almost nine (9) years from the date
he was first arrested and within three (3) years of his appeal being
successful.
18. The defendant has raised 3 special pleas to the plaintiff’s particulars of
claim namely
18.1 Non -compliance with Act 40 of 2002 (the Act).
18.2 That the plaintiff’s action has prescribed; and
18.3 That the plaintiff’s action is bad for non -joinder.
19. The matter is now set down for the determination of the special pleas.
20. Act 40 of 2002 (the ACT )
(i) The plaintiff’s case is that the cause of action (being the unlawful
arrest and detention) arose on 18 May 2015 when the conviction and
sentence were set aside.
(ii) The defendant’s case is that the cause of action if any arose on 06
June 2009 when the plaintiff was arrested and detained. It is the
defendant’s case that the f ailure by the plaintiff to apply for condonation
should result in the plaintiff being non -suited.
21. Prescription
(i) It is the plaintiff’s case that the debt (being the unlawful arrest
and detention) in terms of the Prescription Act arose on 25th
March 2015 when the conviction and sentence were set aside.
(ii) The defendant’s case is that the debt (being the alleged unlawful
arrest and detention) in terms of the Prescription Act arose on 6
June 2009 when the plaintiff was arrested and detained.
(iii) the defendant’s case is that the plaintiff’s claim/ action
prescribed after three (3) years from the date of arrest.
22. Issues to determine
This court is called upon to decide the following:
22.1 When does prescription start to run?
22.2 When does a debt, for purposes of a claim for unlawful arrest
and detention, become due?
23. Parties’ contentions
The parties agree that prescription starts to run when the creditor
(Plaintiff) becomes aware / has knowledge of the existence of the debt.
24. The plaintiff's case is that he became aware of the debt on 25th March
2015 the date on which the appeal; succeeded.
25. The defendant contends that prescription starts to run immediately
upon the arrest of the plaintiff /creditor being 6 June 2009.” (sic)
C. Rule 33 of the Uniform Rules of Court
[3] The issue between the parties is predicated in Rule 33 and therefore it is
important to briefly deal with the its provisions Rule 33 provides.
“33 Special cases and adjudication upon points of law
(1) The parties to any dispute may, after institution of proceedings, agree
upon a written statement of facts in the form of a special case for the
adjudication of the court.
(2) (a) Such statement shall set forth the facts agreed upon, the questions
of law and dispute between the parties and their contenti ons thereon.
Such statement shall be divided into consecutively numbered
paragraphs and there shall be annexed thereto copies of documents
necessary to enable the court to decide upon such questions. It shall
be signed by an advocate and an attorney on beh alf of each party or,
where a party sues or defends personally, by such party.
(b) Such a special case shall be set down for hearing in the manner
provided for trials or opposed applications, whichever may be more
convenient.
(c)…
(3) At the hearing thereof the court and the parties may refer to the
whole of the contents of such documents and the court may draw any
inference of fact or of law from the facts and documents as if provided
at a trial.
(4) …
(5) When giving its decision upon any question in terms of this rule the
court may give such judgement as may upon such decision be
appropriate and may give any direction with regard to the hearing of any
other issues in the proceedings which may be necess ary for the final
disposal thereof.
(6) If the question in dispute is one of law and the parties are agreed
upon the facts, the facts may be admitted and recorded at the trial and
the court may give judgment without hearing any evidence.”
[4] The primary aim of Rule 33 is to facilitate expeditious disposal of litigation.
Rule 33 (2)(a) requires that the statement agreed upon between the parties by way of
a special case submitted to court ‘ shall set forth the facts agreed upon, the question
of law in dispute between the parties and their contentions thereon’ . Rule 33(1) and
33(2)(a) demand that in the special case there must be a question of law that the
parties require the court to decide on the agreed facts and in the light of their
contentions which must be set forth in their agreed statement. Rule 33(5) clearly
states that the decision of the court is required to be upon any question or questions
of law that the parties have submitted to the court for a decision. A court that is called
upon to decide a sp ecial case under Rule 33 is required to decide the question of
law presented to it and has no right to travel outside the four corners of the agreed
statements and decide a different question that it wishes the parties had submitted to
it to decide but did not or that it may wish the parties had included as one of the
questions of law they had submitted to it to decide but did not3. This court is
therefore, bound by the facts and the question s of the law decided upon the parties.
D. Argument
[5] The plaintiff contended that the debt or cause of action (unlawful arrest and
detention) arose on 25 March 2015 when the convictions and sentences were set
aside. The plaintiff relied on the provisions of section 12 of the Act and Malgas and
Other s v Minister of Justice and Correctional Services4, in so arguing. The plaintiff
argue d that the cause of action was incomplete whilst he was in custody because
the High Court had ‘found justification for the arrest and detention by finding
guilty.’(sic) The plaintif f alluded to the findings in Malgas as a justification that the
cause of action became complete and by extension prescription started to run, when
the SCA set aside the convictions and sentences against him. Further relying on
Makhwela v Minister of Safety and Security5, the plaintiff argued that the notion that
in unlawful arrest and detention cases, prescription should start running on the day
of arrest is not without problems.
[6] The defendant on the other hand argued that prescription started to run from
the date that the plaintiff was arrested and follows logically that the statutory notice
ought to have been served within six months of the debt being due, i.e. 6 June 2009,
which is the date of arrest. The defendant premised his submission on the Minister of
Police v Zamani6. The defendant submitted that both special pleas should succeed.
E. Legal position
[7] This court is asked to determine when extinctive prescription started to run.
Extinctive prescription is dealt with in section 12 of the Act and reads as follows:
“12 When prescription begins to run
3 see Mtokonya v Minister of Police 2017 (11) BCLR 1443 (CC); 2018(5) SA 22 (CC) at paras. 13 to
16.)
4 Gauteng Division; Case number A147/2024 delivered on 2nd November 2024
5 (2017 (1) SA 274 (GJ) para 55 to 58 and Minister of Police and Another v Yekiso 2019 (2) SA 281
(WCC) para 19)
6 2023 (5) SA 263 (ECB) paras 12 -17
(1) Subject to the provisions of subsections (2), (3) and (4), prescription
shall commence to run as soon as the debt is due.
(2) if the debtor willfully prevents the creditor from coming to k now 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 f rom 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.”
[8] The provisions of section 12 have been the subject of various courts. The
Constitutional Court in M tokonya v Minister of Police said the following:
“[32] Section 12 (1) makes provision for the general rule. That is that
prescription commences to run as soon as the debt is due. However, it says
that this is subject to three exceptions which are to be fou nd in subsections
(2), (3) and (4). The first exception, in subsection (2) is that prescription does
not commence to run against a creditor if the debtor willfully prevents him or
her “from coming to know of the existence of the debt” until he i.e. credito r
“becomes aware of the existence of the debt”. So, under subsection (2) it is
not every time a creditor does not know of the existence of the debt that
prescription does not commence to run . It is only in those cases where the
debtor is willfully preventing or has willfully prevented the creditor from
“coming to know of the existence of the debt”. One cannot therefore use the
exception in subsection (2) to say that in all cases in which a cre ditor does not
know of the existence of a debt prescription does not commence to run.
…
[34] The second exception, in subsection (3) is that a debt is not deemed to
be due until the creditor has knowledge of two things. The first is knowledge
of the identity of the debtor. The second is knowledge “of the facts from which
the debt arose”. However, this exception is itself subject to another exception
provided by way of the proviso in subsection (3). The exception reads
“Provided th at a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable care”. So, if a debtor delivers a
special plea of prescription and the creditor seeks to meet it by saying
prescription did not run because, before a certain date, he did not have
knowledge of the identity of the debtor or of the facts from which the debt
arose, the debtor can come back and say: but you could have acquired that
knowledge before that date if you had exercised reasonable care but you
failed to exercise such care and, therefore, prescription did commence to run
before that date”.
…
36. Section 12(3) does not require the creditor to have knowledge of any right
to sue the debtor nor does it require him or her to have knowled ge of legal
conclusions that may be drawn from “the facts from which the debt arises”.
Case law is to the effect that the facts from which the debt arises are the facts
which a creditor would need to prove in order to establish the liability of the
debtor.7” (Footnotes omitted and emphasis added.)
[9] The court further had regard to ‘whether knowledge that the conduct of the
debtor is wrongful and actionable is a knowledge of a fact’. The court concluded as
follows “ in my view, therefore, what the applicant said he did not know about the
conduct of the police, namely, whether their conduct against him was wrongful or
and actionable was not a fact and, therefore, falls outside of section 12(3). It is rather
a conclusio n of law …. Knowledge that the conduct of a debtor is wrongful and
actionable is knowledge of a legal conclusion and is not knowledge of a fact. ….
Therefore, such knowledge falls outside the phrase “knowledge of facts from which
the debt arises” in sectio n 12(3). The facts from which a debt arises are the facts of
the incident or transaction in question which, if proved, would mean that in law the
debtor is liable to the creditor.”8
F. Analysis
[10] The first exception in subsection (2) referred to, does not apply in this
instance because the debtor (defendant) did not in any way prevent the creditor
(plaintiff) from knowing the facts upon which the claim is premised. The plaintiff’s
7 Supra; at paras 32 -34
8 ibid para [44] -[45]
argument is not that he was unaware that he had a claim against the defendant and
those responsible for his unlawful arrest and detention. The plaintiff, in the stated
case, states that he knew the debt to have arisen on 25 March 2025 and does not
say he did not know about it or was prevented by the defend ant from knowing it.
Therefore, the provisions of subsection (2) are not in issue.
[11] In respect of the second exception in s ubsection (3), the plaintiff had
knowledge that the defendant was his debtor. The issue to be decided, as between
the parties encapsulated in the stated case, is whether the plaintiff became aware of
the facts founding the debt on 25 March 2015 when acquit ted by the SCA. The onus
is on the defendant to establish the defence of prescription.9 In discharging the
onus, the defendant argued that in cases of unlawful arrest and detention,
prescription begins to run on the day of arrest.
[12] In Truter and Ano ther v Deysel , Van Heerden JA, dealing with when a debt is
due and payable said;
“[16] I am of the view that the High Court erred in this finding. For the 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 the 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 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.
[17] In a delictual claim, the requirements of fault and unlawfulness do not
constitute factual ingredients of the cause of action, but are legal conclusions to
be drawn from the facts;
‘A cause of action means the combination of facts that are material for the
plaintiff to prove in order to succeed with his action. Such facts must enable a
court to arrive at certain legal conclusions regarding unlawfulness and fault, the
constituent elements of a delictual cause of action being a combination of factual
9 Gericke v Sack 1978(1) SA 821 (AD) at 827H.
and legal conclusions, namely A causative act, harm, unlawfulness and
culpability of fault’
[18] …
[19] “Cause” of action’ for purposes of prescription thus means
‘… every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his ri ght to the judgment of the court. It does not comprise every
piece of evidence which is necessary to prove each fact but every fact which is
neces sary to be proved .” (footnotes excluded and emphasis added). The
reasoning in line with Truter what the Consti tutional Court said in Mtokonya. The
latter case is a final word on the i ssue.10”
[13] Wrongful arrest consists in the wrongful deprivation of a person's liberty.
Liability for wrongful arrest is strict, neither fault nor awareness of the wrongfulness
of the arrestor’s conduct being required. To succeed in an action based on wrongful
arrest the plai ntiff must show that the defendant himself, or someone acting as his
agent or employee, deprived him of his liberty. All that is required of the plaintiff is to
establish an act of arrest on the part of the defendant or its employees once the
arrest is est ablished, then it is incumbent upon the defendant to establish grounds of
justification or the lawfulness of the arrest. The liberty of an individual is paramount
and has been observed even prior to our constitution al era .
In Minister of Justice v Hofmeye r, the court held “The plain and fundamental rule is
that every individual's person is inviolable . In action for damages for wrongful arrest
or imprisonment our Courts have adopted the rule that such infractions are prima
facie illegal. Once the arrest or imprisonment has been admitted or proved it is for
the defendant to allege and prove the existence of grounds of justification of the
infraction.11”
[14] In Zamani, Van Zyl DJP, also dealt with the legal principle that proof of
awareness of wrongfulness on the part of the plaintiff is not a requirement in
instances of unlawful arrest, suffice for the plaintiff to establish that he had been
10 2006 (4) SA 168 (SCA) at para 16 -19
11 1993 (3) SA 131 (AD) at 153 D -E, see also Reylant Trading (Pty) Ltd v Shongwe [2007] All SA 375
(SCA) at [4] and [6]
unlawfully deprived of his liberty by ei ther the defendant or those acting in his stead.
He stated thus.
“It is consequently unnecessary for the plaintiff to allege wrongfulness, and
the burden of proof in respect thereof at trial is on the defendant once the
plaintiff has proved, or it has been admitted, that the defendant was arrested
and detained. It is for the defendant to allege and prove the existence of
grounds of justification. The reason lies in the plain and fundamental rule that
every individual's liberty is invaluable. In Zealand vers us the Minister of
Justice and Constitutional Development Langa CJ explained it as follows:
“This is not something new in our law. It has long been firmly established in
our common law that every interference with physical liberty is prima facie
unlawful. Thus, once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference t o
establish a ground of justification …, it must be sufficient for a plaintiff who is
in detention simply to plead that he or she is being held by the defendant. The
onus of justifying the detention then rests on the defendant. There can be no
doubt that t his reasoning applies with equal, if not greater, force under the
constitution.12 (emphasis added).”
[15] It is worth restating what is said in Zealand, that ‘it was sufficient for the
applicant simply to plead that he was unlawfully detained. This he did. The
respondent then bore the burden to justify the deprivation of liberty, whatever form it
may have taken13. The plaintiff di d not have to wait for his release from custody to
institute a civil claim against the defendant. He may have done so himself or through
his attorney while in custody. Furthermore, all he was required to plead is that he had
been wrongfully arrested and de tained by the defendant or his agents. Van Zyl DJP
summed it up correctly by saying that ‘the fact that the plaintiff is not required to
allege and prove the absence of justification for his or her arrest and detention,
means that the facts from which it m ust be concluded that authority for arrest of the
12 Ibid Para 14
13 Ibid para 24
plaintiff did, or did not exist, are not material facts from which the delictual debt is
said to arise .’14
[16] In addition to having knowledge of the identity of the debtor as discussed
above, subsection 12(3) requires the creditor to have knowledge of ‘the facts from
which the debt arises.’ The facts in this matter which were known or ought to have
been known by the defendant are that his arrest was unlawful even before his trial
began. As previously st ated, a n arrest or detention is prima facie wrongful. It is not
necessary to allege or prove wrongfulness. It is incumbent upon the defendant to
allege and prove the lawfulness of the arrest or detention Therefore, the defendant
did not have to wait for the outcome of his appeal. Suffice for him to have alleged
that his arrest and detention were wrongful. The contention by the plaintiff that he
acquired knowledge of all the relevant facts when he was acquitted on appeal is
misplaced.
[17] The plaintiff in terms of the stated case “sues for unlawful arrest and
detention”. The cause of action in the matter of Malgas is reflected in the judgment
thus ‘… the appellants instituted an action against the respondent (the Minister) for
their wrongful detention an d deprivation of liberty .’ It is trite that unlawful arrest and
unlawful detention are two distinct causes of action. An arrest may be lawful but the
subsequent detention be unlawful. Malgas does not concern unlawful arrest .
Malgas deals with unlawful detention and deprivation of liberty. I do not appreciate
the difference between unlawful detention and deprivation of liberty as was
contended for in Malgas, on the peculiar facts of that case because to me those are
the same. Wrongful deprivation of libe rty consists in a person being deprived of his
physical freedom without justification. To succeed in an action based on wrongful
deprivation of liberty, the plaintiff must prove that the defendant himself, or a person
acting as his agent or servant, depriv ed him of his liberty. The same requirement
obtain when dealing with unlawful detention. As a rule, every interference with
physical liberty is prima facie (in the absence of a ground of justification) wrongful.15
The test, therefore, is the same as in unlawful detention. All the plaintiff, in Malgas
needed to plead, was that he was wrongfully deprived of his liberty and not wait for
14 Ibid para 15.
15 Law of Delict; Neethling & Potgieter; 8th Edition at pages 396 -397 an d the authorities cited therein
the outcome of the appeal. In that instance, it would have been incumbent upon the
defendant to prove the ground(s) of ju stification, in other words it would have to
allege and prove the lawfulness of his detention. The same principles dealt with
above as enunciated in Mtokonya, Zealand and Zamani (the latter to the extent that
it followed the principles in Mtokonya and Zeal and, as it was bound by them), ought
to have been followed by the court in Malgas due to the stare decisis principle. This
court cannot, as a result follow the Malgas decision.
[18] Similarly, with respect Makhwelo supra, has been incorrectly decided in so far
as it states that “ (i)n the case of any arrest and detention there is a deprivation of
liberty and loss of dignity which will be justified if there is a conviction . It is difficult to
appreciate how a debt b e immediately claimable and therefore justiciable which is
the second requirement for a debt being due (see Deloitte Hasking) prior the
outcome of the criminal trial, or prior to charges being dropped or otherwise
“withdrawn ”. This is in contradiction to what the Constitutio nal Court said in
Mtokonya and authorities referred to above. It is my finding that in this instance,
prescription sta rted to run on the day of the plaintiff’s arrest i .e 6 June 2009 and the
debt became due on that day because the plaintiff knew that the defendant was the
debtor and had knowledge or could have acquired that knowledge, if he had
exercised reasonable care . The issue of the statutory notice is intertwined with the
running of prescription which started running from 6 June 2009 . It follows that the
statutory notice should have been issued before the expiry of 6 months period from
that date .
[19] Consequently I ma ke the following order :
1. The special pleas raised are upheld.
2. The plaintiff’s claim is dismissed with costs on scale B.
_______________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff : Adv Mzileni
Instructed by : Mdledle -Malefane & Ass
For the Defendant : Adv Mnqandi
Instructed by: : State Attorneys
Date heard : 30 January 2025
Judgment delivered : 10 June 2025