IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. 1174/2016
In the matter between:
THEMBILE LUCAS MGATYELWA Plaintiff
and
NATIONAL MINISTER OF POLICE 1st Defendant
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 2nd Defendant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 3rd Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
[1] The broader issue for determination in this judgment is prescription and more
specifically whether or not the plaintiff was aware of the third defendant, qua debtor,
within the prescriptive period of three (3) years. The issue of prescription has been
separated from the other issues in terms of the order granted by this Court in terms
of rule 33(4) of the Uniform Rules of Court.
[2] To the extend relevant, and for a proper appreciation of the various contentions
pertinent to the determination of the issue of prescription, a brief synopsis of the
-----
protracted history of this matter is apposite. In April 2016 plaintiff instituted action
proceedings against the first and second defendants claiming delictual damages
consequent to his alleged unlawful arrest and detention. Both defendants defended
the action raising various defences including some defences which are not relevant
for present purposes, and the non-joinder of the third defendant which is now central
to the issue of prescription referred to hereinbefore.
[3] In various places in his initial particulars of claim, plaintiff alleged that after his
arrest and on the occasion of his appearance in court on 10 September 2014 a
warrant officer Xhala (Xhala) who had arrested and detained him, placed before a
prosecutor at Libode magistrate’s court the docket in that matter for a decision on the
release of the plaintiff or his further detention. Plaintiff further alleged that the
prosecutor had a legal duty to read the said docket in order to assess the prospects
of releasing him on warning and his eligibility to be released on bail. Plaintiff further
alleged that the said prosecutor had a duty to inform the magistrate who presided
over his case at that early stage that there was no sufficient information in the docket
justifying his further detention. Both warrant officer Xhala and the prosecutor
concerned breached the said legal duty as a result of which he held both the first and
second defendants liable for the damages he suffered resultantly.
[4] The second defendant amended her plea and, inter alia, raised a special plea of
the non-joinder of the third defendant. In essence, the said special plea was that the
role played by the prosecutor in opposing bail and the prosecution of the plaintiff
notwithstanding, plaintiff had not cited the National Director of Public Prosecutions
(NDPP) as defendant in his action. Therefore, so alleged the second defendant, the
summons was bad for the non -joinder of the NDPP. The plea in which the second
summons was bad for the non -joinder of the NDPP. The plea in which the second
defendant’s special plea of the non -joinder of the NDPP was raised was served on
the plaintiff’s attorneys on 13 August 2018. This much was common cause between
the parties.
[5] The plaintiff’s replication to, inter alia, the second defendant’s special plea of the
non-joinder of the NDPP is dated 3 December 2018 but the acknowledgement stamp
thereon bears the 01 November 2017 as the date of receipt. This does not make
chronological sense and is clearly an error in the date stamp. I understood both
counsel to accept that the said replication was, as a matter of fact, served on the
office of the state attorney in December 2018. In his replication to the second
defendant’s special plea of the non -joinder of the NDPP, plainti ff pleaded that the
NDPP has no direct and substantial interest in the determination of his claim. He
further elaborated that the National Prosecuting Authority could not be adversely
affected by a court order which might be granted and therefore he denied that there
was non -joinder of the NDPP. He thereupon applied for the dismissal of the said
special plea.
[6] The special plea of the non -joinder of the NDPP together with other issues which
fell for determination at that stage ultimately served before my colleague Zono AJ
who, for various reasons fully canvassed in his judgment which he delivered on 19
March 2024, upheld the said special plea. He thereupon issued an order granting
plaintiff leave to join the NDPP in his damages claim, “ if so, advised within fifteen
(15) days ” of that judgment. Indeed, plaintiff embarked on that process which
culminated in the plaintiff’s particulars of claim being amended to join the NDPP as
the third defendant in his action.
[7] The joinder of the NDPP birthed his special plea of prescription, the issue that I
am now called upon to determine. The NDPP’s special plea is set out as follows:
“1. In his particulars of claim, the plaintiff avers that the delictual conduct on which his
claim is found was committed between September 2014 and 11 March 2015.
2. The plaintiff’s amended summons and particulars of claim was served upon the third
defendant [NDPP] on 24 March 2024.
3. The third defendant contends that the cause of action on which the debt is claimed by
the plaintiff arose on 11 March 2015.
4. The plaintiff’s debt or debts have prescribed by reason of section 12(1) read with 11(d)
of the Prescription Act, 1969 (ACT No. 68 of 1969) the Prescription Act). Sections 11
and 12 of the Prescription Act provide that:
11. Periods of prescription of debts
The periods of prescription shall be the following –
…
(d) save where an Act of Parliament provides otherwise, three years in respect of any
other debt.
12. When prescription begins to run
The prescription shall be the following –
(1) Subject to 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.
(4) …
(5) The plaintiff’s amended particulars of claim by which prescription was purportedly
interrupted was served upon the third defendant [NDPP] on 24 March 2024 more
than three years from the date on which the plaintiff’s cause and/or causes of
action had arisen and after the debt and/or debts in issue had prescribed.”
[8] In his replication to the NDPP’s special plea, plaintiff denied that the debt of the
NDPP to him prescribed. His denial as set out in his replication was on the basis that
it was the court vide the judgment delivered on 19 March 2024 which, after
considering the evidence presented to it by the second defendant, found that the
prosecutor who allegedly failed in her legal duty was in the employ of the NDPP. In
the relevant part of his replication plaintiff makes his case in this regard as follows:
“2.2 On 11 March 2024 the Court considered the said evidence of the second defendant
together with the oral evidence found that the third defendant is an employer of the
Public Prosecutor concerned as a result thereof the Court ordered that the third
defendant should be joined as a party in these proceedings.
2.3 In the light of the aforesaid, the plaintiff has no knowledge of the identity of the
debtor (third defendant) in these proceedings prior the 11 th March 2024 alternatively
the 19 March 2024 in terms of Section 12(3) of the Prescription Act 68 of 1969
alternatively prior to the 19 th of March 2024 when this Court ordered the third
defendant to be joined as a party in these proceedings.
3. In the premises the plaintiff had no knowledge of the identity of the debtor (third
defendant) prior to the 11 th of March 2024 alternatively the 19 th day of March 2024
when this Honourable Court granted an order joining the third defendant as a party in
these proceedings, therefore the plaintiff’s claim against the third defendant has not
been extinguished by prescription.”
[9] Plaintiff has also pleaded, as an alternative to his contention that the NDPP’s debt
to him has not prescribed, that the order of the 19 March 2024 upholding the second
defendant’s special plea of the non -joinder of the NDPP and granting him leave to
join the NDPP amounts to an intervention by the NDPP. On this basis plaintiff
contends that prescription does not arise against the NDPP. I have difficulties in
understanding plaintiff’s pleaded case in this regard. Plaintiff elected to join the
NDPP who then finds himself before court as a result of being joined by the plaintiff. I
fail to understand why the NDPP should be precluded from raising any defence he
considers relevant including that of prescription. The basis of this plea and the
argument relating to it are completely misplaced and are accordingly unsustainable.
[10] This brings me to the only viable argument raised by plaintiff to ward off the
NDPP’s special plea of prescription. The NDPP presented evidence on prescription
by calling Ms Ndika, the prosecutor who dealt with the plaintiff’s criminal case in
2014 in the Libode magistrates’ court. Her evidence was that she attended to the
criminal case initiated by the state against plaintiff. The NDPP was only served with
the summons in this matter in March 2024 which was the reason for the NDPP
raising the special p lea of prescription. With reference to the second defendant’s
special plea of the non -joinder of the NDPP, Ms Ndika testified that plaintiff was
served with the plea in which that special plea was canvassed on 13 August 2018 to
which plaintiff replicated. In his replication plaintiff disputed that the NDPP ought to
be joined as third defendant in his damages claim on the basis that the NDPP had
no direct and substantial interest in his damages claims.
[11] She further testified that plaintiff knew that he was being prosecuted by the NPA
as far back as 2014 during his court appearances. Thereafter, plaintiff instituted his
damages claims against the first and second defendants but he failed to also cite the
NDPP. He was, however, told by the second defendant through the latter’s pleading
that to the extent that he made certain allegations about what the prosecutor did or
did not do, the NDPP ought to have been joined. In this fashion plaintiff was told th at
for the actions or inactions of the prosecutor who dealt with his criminal case, his
debtor was the NDPP as the employer of the prosecutor concerned.
[12] Plaintiff testified that in 2014 he was 55 years old and had stopped schooling in
standard 4. He further testified that he only got to know that he has a potential claim
against the NDPP in 2024. This was after his attorney told him about the decision of
the court on the second defendant’s special plea of the non-joinder of the NDPP.
[13] Under cross -examination plaintiff testified that at all material times he has
always been represented by his current attorneys of record. He admitted that his
attorneys of record were told by the second defendant in 2018 to sue the NDPP
through a pleading filed by the second defendant. He further confirmed that his
replication to that pleading was filed on his behalf by his attorneys in which he
contended that he did not need to join the NDPP.
[14] As earlier indicated, the second defendant’s special plea of the non -joinder of
the NDPP was upheld by the court to the extent that the conduct of the prosecutor
who dealt with the plaintiff’s criminal case was impugned in the plaintiff’s particulars
of claim. The fact that plaintiff and his attorneys did not accept the second
defendant’s advice for them to join the NDPP at that stage in his damages suit would
ordinarily not stop the needle of prescription from running. I will come back to this
issue later in this judgment.
[15] As I understood plaintiff’s argument, he did not know the identity of the NDPP
qua debtor since 2015. However, this is not without difficulties as plaintiff made
direct allegations impugning the conduct of the prosecutor who dealt with his case
shortly after his arrest even before the second defendant raised the issue of the non -
joinder of the NDPP. Even if one were to accept that plaintiff did not know that the
NDPP was his debtor in 2015 or harboured some doubts about it, he was then
advised in 2018 by the second defendant that to the extent that he impugned the
conduct of the prosecutor who dealt with his criminal case, his debtor was the NDPP.
Therefore, he did become aware of the NDPP being his debtor in that regard
following the second defendant’s non-joinder special plea which was filed in 2018.
[16] Plaintiff’s contention that the non -joinder special plea was raised by the second
defendant as her own defence and had nothing to do with the NDPP is similarly
fraught with difficulties. It is in fact incorrect regard being had to the Prescription Act.
Section 12(3) of the Prescription Act provides that a debt shall not be deemed to be
due until the creditor has knowledge of the identity of the debtor . This is exactly the
contention of the NDPP which is that to the extent that plaintiff did not know the
NDPP as his debtor, he was told that the NDPP was his potential debtor in respect of
the impugned conduct of the prosecutor concerned in no uncertain terms by the
second defendant. Therefore, from 13 August 2018 when the second defendant
advised the plaintiff as such through the non-joinder pleading, plaintiff became aware
that the NDPP was his debtor. That plaintiff did not accept that information does not
mean that he was not informed.
[17] In Macleod1 the court made it clear that the defendant bears the evidential
burden to prove a plea of prescription. In that matter the court restated the legal
position as follows:
“This court has repeatedly stated that a defendant bears full evidential burden to
prove a plea of prescription, including the date on which a plaintiff obtained actual or
constructive knowledge of the debt. The burden shifts to the plaintiff only if the
defendant has established a prima facie case.”
[18] In her evidence Ms Ndika who, as I said before, dealt with the plaintiff’s criminal
case in 2015, confirmed that she took the decision to prosecute plaintiff and other
related decisions. She also confirmed that she is in the employ of the third defendant
and that she is not employed by the second defendant. This evidence was not
challenged, and I understood that to be accepted as factual. Most importantly, she
gave evidence about the special plea of the second defendant relating to the non -
joinder of the NDPP and pointed out that the said special plea was served upon the
plaintiff’s attorneys on 13 August 2018. Incidentally, those attorneys are still the
plaintiff’s current attorneys of record. The question of plaintiff not knowing all along
that the NDPP was his potential debtor, which he now accepts cannot arise, at least
not after the advice of no less a person than the second defendant who is the
Minister responsible for the National Prosecuting Authority that he should join the
NDPP as the third defendant in his claim.
[19] Plaintiff’s contention as articulated in the plaintiff’s written submissions and
during oral submissions, the effect of which was that the advice of the second
defendant regarding the NDPP being also his potential debtor was contained in the
second defendant’s plea which is not a party in the NDPP’s special plea of
1 Macleod v Kweyiya 2013 (16) SA 1 (SCA) para 10
prescription is splitting the hairs, for lack of a better expression. Firstly, it is worth
noting that the said special plea was raised in the same proceedings relating to the
same cause of action. Secondly, the fact of the matter is that Ms Ndika testified and
in doing so, made reference to the second defendant’s non joinder special plea to
point out that the plaintiff was told by the second defendant about the NDPP being
the debtor and therefore plaintiff did become aware of that at least from that point
onwards.
[20] This is exactly the point made by the Constitutional Court in Molusi2 regarding
pleadings. It said:
“The purpose of pleadings is to define issues for the other party and the Court. And it
is for the Court to adjudicate upon the disputes and those disputes alone. Of course,
there are instances where the court may, of its own accord ( mero motu ), raise a
question of law that emerges fully from the evidence and is necessary for the
decision of the case as long as its consideration on appeal involves no unfairness to
the other party against whom it is directed. In Slabbert the Supreme Court of Appeal
held:
‘A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.”
[21] The NDPP has raised the special plea of prescription on the basis of the age of
the debt which arose between September 2014 and March 2015. He has further
pleaded that he was only served with the summons in March 2024. He has brought
evidence before this Court to deal with plaintiff’s replication to that special plea which
was to the effect that he did not know the NDPP as his debtor. To answer that, the
witness called by the NDPP, Ms Ndika brought evidence which points to the plaintiff
witness called by the NDPP, Ms Ndika brought evidence which points to the plaintiff
2 Molusi and Others v Vogel N.O. and Others 2016 (3) SA 370 (CC) para 28.
having been told through his attorneys of record that his debtor was the NDPP in
respect the alleged conduct of prosecutors. That evidence has not been cogently
gainsaid. In fact, it is common cause that the second defendant, in her non -joinder
special plea, told the plaintiff through his attorneys to join the NDPP. Plaintiff admits
being told to sue the NDPP and it is evident that instead of joining the NDPP, he
elected to resist the non-joinder pleading thus refusing to join NDPP as a party in his
damages claims. He changed his mind in March 2024 after the court upheld the
second defendant’s special plea.
[22] The question is whether the plaintiff’s change of mind on that issue negates the
information given to him about the NDPP being his debtor in relation to the impugned
conduct of the prosecutor concerned. It is apparent that he was told as far back as
2018, in so far as he may, for whatever reason, not have already known before who
his debtor was as it relates to the conduct or alleged transgressions of the
prosecutor concerned. That put paid to his claim that he did not know the NDPP as
his debtor which he now accepts. A party’s denial of a third party as a debtor or
vacillation thereanent does not interrupt prescription in my view and it cannot negate
the information which that party objectively has about the third party being the
debtor. In all the circumstances the third defendant’s special plea of prescription
must succeed. There is no reason why costs should not follow the event.
[23] In the result, the following order is issued:
1. The third defendant’s special plea of prescription is upheld.
2. The plaintiff is ordered to pay costs on scale B referred to in Uniform Rule 67A.
__________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances
Counsel for the plaintiff : M. PANGWA
Instructed by : CAPS PANGWA AND ASSOCIATES
MTHATHA
Counsel for the defendant : A. BODLANI SC
Instructed by : STATE ATTORNEY
MTHATHA
Date heard : 22 April 2026
Date delivered : 09 June 2026