IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT )
CASE NO: EL 535/2017
NOT REPORTABLE
In the matter between
MNCEDISI VENA Plaintiff
and
MINISTER OF POLICE Defendant
JUDGMENT IN RESPECT OF INTERLOCUTORY
ISSUE ARISING UPON TRIAL
HARTLE J
[1] The parties in this matter agreed to argue a special plea on prescription by
way of a stated case. They were not intent on doing so until I noted the oddity that
they imagined that the plea could be disposed of by way of argument and without
resort to oral evidence.
[2] An essential feature of this action , which I cannot ignore, is that although a
special plea of non -compliance with the provisions of the Institution of Legal
Proceedings against Certain Organs of State Act, No. 40 of 2002 (“ILPACOSA ”) was
also raised on the pleadings, the plainti ff disposed of this by bringing an application
for condonation under its provisions.
[3] This application was not opposed by the defendant and an order was granted
condoning the plaintiff’s non -compliance with the provisions of section 3 (2) of the
ILPACOSA.
[4] The plaintiff alleged in his founding affidavit filed in support of the said
application that his claim had not prescribed. The essence of his claim which relates
to the negligent handling of a criminal investigation in which he was the complainant
and w hich he alleges led to him suffering damages , is that the investigating officer
assigned to the case made a misrepresentation that there was no documentary
evidence to support his case against the relevant accused person. This, in his view,
led to the Deputy Director of Public Prosecutions provisionally declining to prosecute
the matter on 28 May 2014. Even after the Deputy Director of Public Prosecutions
advised of his decision, it seems from the contents of the statutory notice dated 16
November 2015, however, that the plaintiff continued unsuccessfully to engage with
the investigating officer and the station commander at the N1 Police Station in
respect of the unsatisfactory conduct of the investigation. One of the unfortunate
results of this mismanag ement of the matter is that the suspect, who was in fact
arrested by him, was released.
[5] It was later established , also by his own efforts , that the suspect had left the
country.
[6] It is asserted in the statutory demand that certain monies of which the plaintiff
had been fleeced by the suspect could not be recovered or properly dealt with
according to law “ because the police had not done their work diligently ”. The
summons was issued on 4 May 2017, within three years at least of the Deputy
Director of P ublic Prosecution’s provision al decision not to prosecute.
[7] In his particulars of claim the plaintiff pleads that on 3 June 2015 the National
Prosecuting Authority, Mdantsane Magistrate’s Court , declined to prosecute the case
which appears to be a further fact relative to the plaintiff’s contention that the claim
has not prescribed.
[8] The special plea that was supposed to be the subject of the trial before me
appears to construe the date on which the debt arose as being in 2012 (sic) which is
when the “ impro per conduct and negligent conduct of investigation ” occurred.
[9] The plaintiff has not replicated to the plea of prescription.
[10] In the stated case prepared by the parties’ counsel, the essential dates on
which the plaintiff relies as to when prescription s tarted to run are not asserted with
any clarity .
[11] These facts are in my view critical to the question of law whether the claim
has prescribed and co unsels’ respective contention s in respect thereof , but they
have been omitted in the stated case.
[12] I raised the inadequacy of the stated case during argument with counsel . Mr.
Silevan a seemed to agree that something was amiss and made a plea for the
statement to be amended or amplified. The defendant on the other hand,
represented by M r. Ngadlela in these proceedings, was insistent that the stated case
bound the plaintiff and could not be amended even after I pointed out to him that it
does not even nearly reflect the important fact s that were outlined in the condonation
application.
[13] The water s seem also to have been muddied by an implied suggestion that
the plaintiff did not acquire k nowledge of the facts and the identity of the defendant
until the plaintiff consulted with Malusi & Co. Attorneys who at some stage
represented him. This does not seem to be relevant , but from the defendant’s
perspective the important factual outlay on wh ich he seeks to base his contention
that the cause of action arose earlier , or that the plaintiff had constructive knowledge
of the identity of the debtor and the facts from which the debt arises earlier than the
date on which the plaintiff claims prescri ption ought to have commenced running , is
also absent or at least incomplete . (Not all the key dates and their relevance in fact
are manifest in the stated case .)
[14] Since the burden is on the defendant to establish the special plea1 it is also
not in his best interest s for this court to determine the legal question of prescription
on the basis of the stated case as it is presently formulated.
[15] A stated case that form s the basis for the cont entions and arguments
thereupon in terms of Uniform Rule 3 3 (1) should be the product of the parties ’
agreement and not be dictated by the court .
[16] Mr. Silevan a asked this court to permit an amplification/amendment thereof
which I think would be wise. Such an amplification would also assist the defendant
to advance his case in a clearer fashion . However he did not indicate how he would
like to amend and the parties have , by obvious reason that the proposed amendment
was not cast in writing or properly formulated, seriously engaged with the proposed
“new” material that he believes should be included .
[17] Where facts in a stated case are inadequately stated, it appears that a court
should decline to entertain it.2 Although I commen ced hearing argument, I can see
no reason why, given the parties obvious dis sent that the agreement
comprehensively straddles all the necessary facts relevant to the issue that must be
determine d, I should be precluded from making such a ruling at this point. Indeed to
proceed with the matter under these circumstances will have serio us ramifications
for both parties and not be in the interests of justice .
[18] It should fall to the parties to either revise their agreement, or, if not so
inclined, for the matter to proceed on trial to obviate any prejudice to either of them.
1 Gericke v Sack 1978 (1) SA 821 (A) at 826 H – 827 D.
2 See in this regard Minister of Police v Mboweni 2014 (6) SA 256 (SCA ) at 261 H. See also Bane &
Others v D’Ambrosi [2010] 1 All SA 101 (SCA) 17 September 2009 at [7] confirming the expectation
that parties are to be unequivocally bound by the facts mentioned in the stated case, and Mtokon ya v
Minister of Police 2018 (5) SA 2 (CC) (19 September 2017) which also sets out the consequence s
and binding nature of a stated ca se.
[19] The order that issue s is as follows:
1. The court declines to hear the stated case as presently formulated on the
basis that the facts recorded therein have been inadequately stated.
2. The matter ought therefore to proceed on trial, if not on the basis of an
ampli fied amended statement of case such as the parties may agree upon.
3. The costs are in the cause.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 2 & 3 June 2025
DATE OF JUDGMENT : 4 June 2025
Appearances:
For the applicant : Mr. V Silevan a instructed by Sotenjwa Attorney s, East London (ref.
Sotenjwa ).
For the defendant: Mr. D Ngadlela instructed by The State Attorney, East London c/o
Shared Legal Services, King William’s Town (ref. Mr s Dlanjwa ).