THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 458/03
In the matter between:
JUANINE SHARON TAYLOR Appellant
and
THE MINISTER FOR SAFETY AND SECURITY First Respondent
HENDRIK JACOBUS STEPHANUS RAUTENBACH Second Respondent
_________________________________________________________________
Coram
: Navsa, Conradie et Van Heerden JJA
Date of hearing: 18 November 2004
Date of delivery: 30 November 2004
Summary: Special plea ─ notice of intention institute action against the Minister and a member
of the South African Police Service not in complian ce with s 57(2) of the S outh African Police Service
Act 68 of 1995 in that it was not served on the Provincial Commissioner ─ upheld in court below ─
held in this court that on the evidence the Provincial Commissioner maintained two offices and that
service on either sufficed ─ appeal upheld.
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JUDGMENT
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NAVSA JA:
[1] The question in this appeal is whether the Court below, the Port
Elizabeth High Court (Norman AJ), was correct in upholding the
special plea of the two respondents to the effect that the provisions of
s 57(2) of the South African Police S ervice Act 68 of 1995 (the Act)
were not complied with by the appellant, Juanine Sharon Taylor,
before she instituted an acti on against them claiming, inter alia ,
damages for unlawful arrest and detention.
[2] The court below dismissed the app ellant’s application for leave to
appeal. The present appeal is with the leave of this Court.
[3] Section 57 of the Act, which has subsequently been repealed,
provided as follows:
‘(1) No legal proceedings s hall be instituted against the Service or any body or
person in respect of any alleged ac t performed under or in terms of this
Act or any other law, or an alle ged failure to do anything which should
have been done in terms of this Act or any other law, unless the legal
proceedings are instituted before the ex piry of a period of 12 calendar
months after the date upon which t he claimant became aware of the
alleged act or omission, or after t he date upon which the claimant might be
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reasonably expected to have becom e aware of the alleged act or
omission, whichever is the earlier date.
(2) No legal proceedings contemplated in subsection (1) shall be instituted
before the expiry of at least one calend ar month after wri tten notification of
the intention to institute such proceedings, has been served on the
defendant, wherein particulars of the alleged act or omission are
contained.
(3) If any notice contemplated in subsec tion (2) is given to the National
Commissioner or to the Provincial Co mmissioner of the province in which
the cause of action arose, it sha ll be deemed to be notification to the
defendant concerned.
(4) Any process by which any proceedings contemplated in subsection (1) is
instituted and in which t he Minister is the defendant or respondent, may be
served on the National or Provin cial Commissioner referred to in
subsection (3).
(5) Subsections (1) and (2) shall not be construed as precluding a court of law
from dispensing with the requirement s or prohibitions contained in those
subsections where the interest s of justice so require.’
[4] The question in this appeal is whether the appellant’s notice of
intention to institute action, served at the Mount Road police station in
Port Elizabeth on 22 April 2002, was proper notice in terms of s 57(2)
of the Act. The adequacy of the cont ents of the notice for the purposes
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of s 57 is not in dispute. It is acc epted that notice on 22 April 2002 is
within the time limits contemplated in s 57. The question for decision in
this appeal is thus confined to whether service on the Mount Road
police station was service on the Eastern Cape Provincial
Commissioner. The facts against which this question has to be decided
are set out hereafter.
[5] The appellant is a businesswom an. The first respondent is the
Minister for Safety and Security, cite d in his official capacity as the
Minister responsible for the South African Police Service (SAPS). The
second respondent is Captai n Hendrik Jacobus Stephanus
Rautenbach (Rautenbach), a member of the SAPS.
[6] It is common cause that the appellant was arrested on 24 May
2001 at Johannesburg International Airport by Rautenbach in terms of
a warrant of arrest, obtained at his instance, on the basis of an alleged
breach by the appellant of bail conditions. The appellant was
subsequently detained and tran sported to Port Elizabeth via
Kroonstad, where she was detained in a police cell. The appellant was
released after her arrival in Port Elizabeth.
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[7] In her particulars of claim the appellant alleged th at, in arresting
and detaining her, the police acted unlawfully and, in consequence,
she was injured in her good name, her right to bodily integrity was
infringed and she suffered mental anguish. She alleged that, as a
result, she sustained damages in an amount of R250 000-00 for which
the two respondents are jointly and severally liable.
[8] In their plea on the merits th e respondents denied that the arrest
was unlawful. Indeed, they deni ed any unlawful behaviour on the part
of the police. It is common cause that, in arresting the appellant and
transporting her to Port Elizabeth, Rautenbach and other members of
the SAPS were acting within the course and scope of their
employment.
[9] As stated earlier, the arrest and detention took place on 24 May
2001. In terms of s 57(1) of the Act the appe llant was required to
institute action within 12 months aft er that date and to give notice of
the intended action to the respondents at least one month before the
institution of the action. The summo ns in this case was issued on
23 May 2002 and served on the respondents on the same day.
Proceedings were therefor e instituted within the prescribed time. In
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their special plea the respondents cont ended that notice of intention to
institute action as contemplated by s 57(2) of the Act was not given. At
the pre-trial conference the respo ndents informed the appellant that
their case in respect of the special plea was that neither the Provincial
nor the National Commissioner were given proper notice in terms of
s 57(2) of the Act.
[10] At the commencement of procee dings in the Court below it was
agreed that only the special plea would be dealt with and that evidence
would be led in this regard.
[11] The only witness to testify wa s Captain Jacobus Gerrit Paxton
(Paxton). The present appeal is to be determined on the basis of his
evidence. It is therefore necessary to discuss in some detail, in the
paragraphs that follow, the relevant parts of his evidence.
[12] Paxton is the Acting Co mmander, Loss Management, in the
office of the Eastern Cape Provin cial Commissioner of Police. He
testified that his office was a section within the Provincial
Commissioner’s office. He was stationed at the Mount Road police
station in Port Elizabeth. He was also so stationed and so designated
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at the time that the appellant’s not ice of intention to institute action
against the respondents was delivered there on 22 April 2002.
[13] Paxton explained that, when a notice of intention to institute
action against the first respondent or a member of the SAPS is served
on the Provincial Commissioner’s office, it is sent to him and he then
considers whether there has been compliance with s 57 of the Act.
[14] The official letterhead used by Paxton, in correspondence with
potential litigants or others, describes his office as Office of the
Provincial Commissioner, Loss Management. The postal address
stated is a private bag address in Port Elizabeth.
[15] It is common cause that the appellant’s notice of intention to
institute action in respect of t he unlawful arrest and related incidents
was addressed to the first respondent, care of the legal division of the
Commissioner of Police at the Regional Head Office, Mount Road, Port
Elizabeth.
[16] When the notice was delivered at the Mount Road police station
on 22 April 2004 it was duly stamped with an official stamp, recording
receipt in the name of an Assistant Police Commissioner,
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PZ Nomvuka. It was also stamped with an official stamp of the South
African Police Service’s Provincial Head of Detective Services, Eastern
Cape, bearing the date 22 April 2002. It appears that the notice was
stamped in this manner becaus e the abovementioned Assistant
Commissioner, who during April 2002 was still stationed at Mount
Road in the same building as Paxt on, was the Provincial Head of
Detective Services.
[17] On 23 April 2002 the appella nt’s notice, as per the usual
procedure, was placed on Paxton’s de sk at his office at the Mount
Road police station. Paxton’s offi cial stamp bearing the words ‘Legal
Services Eastern Cape Port Eliz abeth’ and ‘South African Police
Service’ and the date ‘2002-04-23’ was placed on the appellant’s
notice. On the same day Paxton himself signed the notice.
[18] According to Paxton t he process of relocating the
Commissioner’s office from the Mount Road police station in Port
Elizabeth to Zwelitsha commenc ed on 7 January 2002. The
Commissioner himself and members of his senior management staff
had moved to Zwelitsha. At the ti me that the notice was delivered,
Assistant-Commissioner Nomvuka had not yet reloc ated to Zwelitsha.
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He remained behind in the same buil ding that housed Paxton’s office.
During the course of the year other members of the Commissioner’s
staff, including some Assistant-Commissioners, followed the
Commissioner and moved to Zwelitsha.
[19] Paxton’s evidence concerning t he relocation of the office of the
Commissioner of Police requires careful scrutiny. Paxton gave
evidence in the court below on 23 April 2003. At that time, according to
Paxton, the Commissioner’s office had only partially relocated to
Zwelitsha. Paxton explained that so me of the sections, such as his
own, were still located at the Mount Road police station.
[20] Paxton testified that even though the Commissioner himself had
moved to Zwelitsha, the Legal S ervices Department under which his
office fell decided to continue accept ing notices of intention to institute
action at the Mount Road police stat ion. This was done for a period of
several weeks after 7 January 2002. Later a decision was made that
no future notices received at the Mount Road police station would be
regarded as proper notices in terms of s 57 of the Act. Paxton could
not recall the date of this decision, but testified that, at the time that the
appellant’s notice was served, the decision had already been made.
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[21] According to Paxton, when a notice was served on the
Commissioner’s office in Zwelitsha, it was, nevertheless, redirected to
his office at the Mount Road police station to be dealt with.
[22] Paxton testified that notices were never, in either instance
(Mount Road or Zwelitsha), se rved on or received by the
Commissioner personally. Such a notice was received by a member of
the Commissioner’s staff and directed to Paxton for attention and reply.
[23] It is common cause that members of the public were not notified
by way of any communication from the Commissioner’s office that he
had partially relocated to Zwelitsha. Representative bodies of the legal
profession did not receive notice of the relocation either.
[24] Against this background, where the Commissioner in fact
maintained two offices at the relev ant time, service on any one of the
offices would in my view suffice as proper notice in te rms of s 57(2) of
the Act. The arbitrary decision by the Legal Services Department not to
continue to accept notices at the Mount Road police station did not
change the fact that th e Commissioner continued to maintain an office
there.
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[25] This is not a case like Groepe v Minister of Police and Others
1979 (4) SA 182 (E), where the notice was not served on the
Commissioner at his office, but rather at a police station where the acts
complained of had been committed. It was held that the notice was not
proper notice as contemplated in the then applicable statute.
[26] Likewise, in Minister of Police v Mamazela 1977 (1) SA 113 (T),
the notice was addressed to a Divisional Commander of the South
African Police at a police statio n and to a station commander at
another police station, neither police station being an office of the
relevant Commissioner. It was held that notice to those officers was
not notice to the Commissioner.
[27] In the Groepe case the purpose of the notice contemplated in a
section like s 57 was stated as follows (at 184H):
‘The purpose for which this notice is requi red to be given is of importance. That
purpose is to ensure that the State, or t he person to be sued, receives warning of
the contemplated action and is given sufficient information so as to enable it or him
to ascertain the facts and c onsider them. The section is enacted for the benefit of
the recipient of the notice, and that purpose must be served.’
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[28] This purpose was achieved in the present case. The
Commissioner maintained two offices simultaneously. Service of the
notice was effected on an Assistant -Commissioner who was based at
the Commissioner’s Mount Road po lice station offi ce. The stamp
indicating his designation as He ad of Detective Services was
incidental. The notice was after re ceipt thereof despatched to Paxton,
the very person charged with the res ponsibility of dealing with such
notices on behalf of the Provincial Commissioner. The court below
erred in concluding that the notice was received by the Provincial Head
of Detective Services and not by the office of the Commissioner and
that s 57(2) had therefore not been complied with.
[29] In her judgment, Norman AJ stat ed that if one were to permit
service on any employee who is a member of the SAPS, other than the
Commissioner, there would be chaos and the provisions of the Act
would thereby be disregarded. The le arned judge stated further that it
would be untenable to contend that, when notice to the Commissioner
is enjoined, notice to any of his in ferior officers will be sufficient. She
relied on the Mamazela case for these propositions. As stated above
the Mamazela case is clearly distingui shable. The statements by
Norman AJ are in general not conten tious, but the learned judge erred
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in construing the facts. Each case must, of course, be decided on its
own facts.
[30] It is difficult to understand why, in the ci rcumstances referred to
above, the respondents adopted the attitude evi denced in the litigation
that ensued.
[31] I record that before us the appellant appeared in person. In the
light of the conclusions reached by me I make the following order:
1. The appeal is upheld with costs.
2. The order of the court below is set aside and in its place is
substituted the following:
‘The special plea is dismissed with costs.’
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MS NAVSA
JUDGE OF APPEAL
CONCUR:
CONRADIE JA
VAN HEERDEN JA