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[2019] ZASCA 24
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Minister of Police v Masina (1082/17) [2019] ZASCA 24 (28 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 1082/17
In
the matter between:
MINISTER
OF
POLICE
APPLICANT
and
MFANUKA
JACOB
MASINA
RESPONDENT
Neutral
citation:
Minister of Police v Masina
(1082/17)
[2019]
ZASCA 24
(28 March 2019)
Coram:
Tshiqi, Wallis, Zondi and Van der Merwe JJA and Matojane AJA
Heard:
27 February 2019
Delivered:
28 March 2019
Summary:
Extinctive prescription – Commencement – Debt due
when the creditor has knowledge of the identity of the debtor and of
the facts from which the debt arises
–
knowledge
of legal procedures and remedies not required.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria
(Raulinga J sitting as court of first instance):
1 The application for leave to appeal
is granted with costs.
2 The appeal is upheld with costs.
3 The order of the high court is set
aside and replaced by the following order: ‘The application is
dismissed with costs.’
JUDGMENT
Matojane
AJA (Tshiqi, Wallis, Zondi and Van der Merwe JJA concurring):
[1]
During May 2012 the respondent, Mr Mfanuka Jacob Masina, then 34
years old, was allegedly shot in the right ankle by a member
or
members of the South African Police Service (SAPS), while he
attending a community protest meeting. He instituted an action
against the Minister of Police (Minister) to recover damages in the
aggregate amount of R660 000.
[2]
The Minister defended the action and delivered two special pleas to
the particulars of claim. The first special plea related
to the
failure to timeously comply with s 3(1) and (2) of the Institution of
Legal Proceedings against Certain Organs of State
Act 40 of 2002 (the
Act) and the second plea was a special plea of prescription as
contemplated by s 11(
d
) of the Prescription Act 68 of 1969
(the
Prescription Act).
[3
]
On 19 February 2016 Mr Masina’s attorneys brought an
application in terms of
s 3(4)(
b
) of the Act for condonation
of the respondent’s non-compliance with the notice provisions,
and also sought costs in the event
of opposition. The court below
(Raulinga J) sitting in the Gauteng Division of the High Court,
Pretoria), upheld the application
and ordered the
Minister to pay the costs of the application on the scale as between
attorney and client.
[4]
The court a quo refused the Minister’s application for leave to
appeal. The Minister petitioned this court in terms of
s 17(2)
(b)
of the
Superior Courts Act 10 of 2013
. The application for leave
to appeal was referred for oral argument in terms of
s 17(2)(
d
)
of the
Superior Courts Act 10 of 2013
. The parties were directed, to
address the court on the merits if called upon to do so.
[5]
In terms of
s 3(4)(
b
) of the Act, the court may grant an
application for condonation if satisfied that:
(a) The debt has not been extinguished
by prescription;
(b) Good cause exists for the failure
by the creditor;
(c) The organ of the state was not
unreasonably prejudiced by the failure.
[6]
It is for the applicant for relief under this section to produce
evidence to satisfy the court hearing the application that
the
requirements of the section have been met. In the high court, the
argument revolved around the question of whether Mr Masina’s
claim had prescribed.
[7]
In the affidavit in support of the condonation application Mr Masina
stated that he had been shot on 16 May 2012 while participating
in
the protest action. His claim for damages against the police arose
and became due then. Accordingly, the debt would ordinarily
have
prescribed on 15 May 2015. The summons in the present action was
served on 19 May 2015.
[8]
Mr Masina sought to overcome this problem by claiming that
prescription had not commenced running prior to February 2013. His
reasons for saying this were set out in the following paragraphs from
his founding affidavit:
‘
7.18 Months after being shot I
learned that an acquaintance of mine, Mr Mthombosi Perseverance
Mngadi, who also partook in the protest
action on 16th day of May
2012, was also shot by members of the SAPS on the same date, and that
Mr Mngadi laid a complaint with
the SAPS against the specific members
of the SAPS who shot him.
7.19 I was never able to establish the
identity of the police officer, alternatively police officers who
shot me and therefore never
proceeded to lay a complaint with the
SAPS. I was unaware of any legal remedy, and I was under the
impression that there was nothing
I could do due to the fact that the
identity of the specific SAPS members was unknown to me.
7.20 I have never been party to civil
litigation, and I do not have any knowledge of the legal system.
8.1 During or about February 2013 I
was approached by Mr Mngadi, as referred to above, who requested me
to consult with his attorneys
regarding the events on 16 May 2012 as
he had instructed his attorney to institute a claim against the
Minister of Police after
also being shot on the same date.
8.2 I agreed to give a statement to Mr
Mngadi’s attorneys in order to assist him with his claim that
he had instituted against
the Minister of Police. At no stage prior
to being approached by Mr Mngadi did I have any knowledge that any
claim could be instituted
against the Minister of Police as a joint
debtor.
8.3 On 10 September 2013 I give a
statement to Mrs Willene van Zyl of Pieter Nel Attorneys at Carolina.
I enquired with Mrs. van
Zyl as to the possibility of a claim being
instituted against the Minister of Police on my behalf, whereupon I
was informed that
I would need to formally instruct Pieter Nel
Attorneys prior to any claim being instituted on my behalf.
. . .
8.5 During or about June 2014 I again
consulted with Mrs Willene van Zyl of Pieter Nel Attorneys and
instructed Pieter Nel to institute
a claim against the Minister of
Police for the unlawful conduct of an employee, alternatively the
employees of the Minister of
Police.’
[9]
Thus the case for Mr Masina was that prior to being approached by Mr
Mngadi in February 2013, he did not have knowledge that
a claim could
be instituted against the Minister as joint debtor for the wrongful
actions of the members of the SAPS and that prescription
did not
commence to run against him before February 2013. The appeal,
therefore, turns on the question whether the court below
should have
been satisfied on the facts of this case that the debt had not been
extinguished by prescription.
[10]
Section 12
of the
Prescription Act reads
:
‘
(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 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.’
[11]
Section 12(3)
has two elements. In the first place, it requires
‘knowledge of the identity of the debtor’. The second is
‘knowledge
of the facts from which the debt arises’. The
factual situation is that Mr Masina knew that he had been shot by the
police.
He argued that, because he did not know the identity of the
policeman who shot him, he believed that there was nothing that he
could do. On this basis, it was submitted that he did not have
knowledge that his claim lay against the Minister and therefore that
he did not have knowledge of the identity of the debtor.
[12]
Where knowledge of the identity
of the debtor is concerned, the question is one of fact, not of
knowledge of the applicable law
relating to the citation of that
debtor or any formalities, such as the giving of notice, that must be
satisfied before an action
may be commenced. Those matters are within
the province of legal procedure and remedies. In the same way, when
dealing with the
facts giving rise to a claim, the courts have
consistently held that the plaintiff does not have to have knowledge
of the legal
consequences of those facts. In
Claasen
v Bester
[1]
this court in referring to cases that have dealt with the question
when prescription begins to run for the purposes of
ss 12(1)
and (3)
of the
Prescription Act stated
that:
‘
These cases do not leave open
the question posed and not answered in
Van Staden
. They make
it abundantly clear that knowledge of legal conclusions is not
required before prescription begins to run. There is
no reason to
distinguish delictual claims from others. The principles laid down
have been applied in several cases in this court,
including most
recently
Yellow Star Properties v MEC, Department of Planning and
Local Government
[2009] 3 All SA 475
(SCA) para 37 where Leach
AJA said that if the applicant ‘had not appreciated the legal
consequences which flowed from the
facts’ its failure to do so
did not delay the running of prescription.’
See
also
ATB Chartered Accountants (SA) v Bonfiglio
[2010] ZASCA
124
;
[2011] 2 All SA 132(SCA)
paras 14 and 18.
[13]
Mr Masina knew full well that his claim lay against the police. That
he did not know whether the SAPS, the Minister or the
Commissioner of
the South African Police Service should be cited, is immaterial. He
should have taken steps to enforce his claim
immediately. As I have
said, knowledge that the Minister should be cited as the nominal
defendant in an action against the police
is a matter of legal
procedure.
[14]
Mr Masina relied on the
judgment of this court in
MEC
for Education, KZN v Shange
[2]
to support his contention. In
Shange
the MEC for Education
appealed against the high court’s grant of condonation to a
learner for non-compliance with s 3 of the
Act. A teacher’s
belt tip had struck and injured the learner’s eye while the
teacher was at the time punishing another
learner in June 2003. The
teacher informed the 15 year old learner that it was a mistake and
the learner accepted it as such.
[15]
In January 2006 the learner, then 18 years old, was advised that he
should complain to the Public Protector. An advocate at
the office of
the Public Protector advised him that he should consult an attorney
as he had a claim against the MEC. He instructed
an attorney to
proceed with the claim. On 2 February 2006 the attorney sent a s 3
notice to the Minister of Education rather than
the MEC. In December
2008 summons was served on the MEC. The MEC delivered a special plea
for dismissal of the claim, based on
her not having received a s 3
notice. This prompted the learner’s attorney to first, dispatch
a notice in terms of s 3 to
MEC for Education and then bring an
application for condonation in terms of s 3(4)
(a)
of the Act.
[16]
The
Shange
case is distinguishable from the present case in
that the learner, who was 15 years old at the time, had a bona fide
belief that
his teacher’s explanation put an end to the matter.
This according to the court adequately explained the delay in any
steps
having been taken until January 2006. The court found that
being a rural learner, it could not be expected of him to reasonably
have known not only that the teacher was his debtor but also that the
MEC was a joint debtor. Only when he was informed of
this fact
in January 2006 did he know the identity of the MEC as his debtor for
the purposes of provisions of s 12(3). Mr Masina's
reliance on the
Shange
judgment was misplaced.
[17]
For these reasons the court below should not have been ‘satisfied’
that the debt had not become extinguished by
prescription.
Furthermore, although this was not argued before the high court, it
is difficult to see the basis for the court being
satisfied that
there was good cause for Mr Masina’s failure to give timeous
notice to the Minister of Police. There was no
explanation for his
failure to try and pursue a claim after February 2013 until June
2014. Furthermore, there was no explanation
for the failure of his
attorneys to pursue the matter expeditiously once he instructed them
to do so in June 2014. The notice was
only sent to the Minister of
Police in September 2014. The particulars of claim were prepared in
February 2015, and the summons
was issued on 28 April 2015. It was
only sent to the sheriff on 15 May and served on 19 May after the
expiry of the three-year
prescriptive period. This delay was also
unexplained.
[18]
The court below granted Mr Masina costs of the application for
condonation on an attorney and client scale, even though such
a
request was never made by Mr Masina. The court did not give reasons
for the punitive cost order it made. Mr Masina sought an
indulgence
from the court and should not have been awarded costs unless the
opposition for the condonation application was unreasonable.
[19]
The following order made:
1 The application for leave to appeal
is granted.
2 The appeal is upheld with costs.
3 The order of the high court is set
aside and replaced by the following order: ‘The application is
dismissed with costs.’
____________________
Judge
K E Matojane
Acting
Judge of Appeal
APPEARANCES:
For
Appellant: M S Phaswane
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
Respondent: N C Hartman
Instructed
by: Voster & Brandt Attorneys, Pretoria
Hill
McHardy & Herbst Attorneys, Bloemfontein
[1]
Claasen v Bester
[2011] ZASCA 197
;
2012 (2) SA 404
(SCA) para 15.
[2]
MEC for Education, KZN v Shange
[2012] ZASCA 98
; 2012 (5) 313 (SCA)
(Shange).