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[2017] ZACC 33
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Mtokonya v Minister of Police (CCT200/16) [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018 (5) SA 22 (CC) (19 September 2017)
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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 200/16
In the matter between:
SINETHEMBA
MTOKONYA
Applicant
and
MINISTER OF
POLICE
Respondent
Neutral citation:
Mtokonya v Minister of Police
[2017] ZACC 33
Coram:
Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Zondo J (majority: [1] to [86]
Jafta J (dissenting): [87] to [185]
Heard on:
16 March 2017
Decided on:
19 September 2017
Summary:
[knowledge required by section 12(3) of Prescription Act] —
[knowledge of legal conclusion or that creditor has a legal remedy
not required by section 12(3)] — [only knowledge of identity of
debtor and facts giving rise to debt required]
[leave to appeal is granted] — [appeal is dismissed] —
[no order as to costs]
ORDER
On appeal from the High Court of South
Africa, Eastern Cape Local Division, Mthatha, the following order is
made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
ZONDO J (Cameron J, Froneman J, Khampepe
J, Madlanga J, Mhlantla J and Pretorius AJ concurring):
Introduction
[1]
This case is about extinctive prescription. In
particular, it is about whether section 12(3) of the Prescription
Act
[1]
requires a creditor to have knowledge that the conduct of the debtor
giving rise to the debt is wrongful and actionable before
prescription may start running against the creditor. That is
the question that this Court will be called upon to decide if
we
grant the applicant leave to appeal.
Background
[2]
The applicant instituted an action in the Eastern Cape Local
Division of the High Court, Mthatha,
[2]
against the respondent for damages for wrongful arrest and detention
by the South African Police Service. He was arrested
on
27 September 2010 and detained for four or five days before
being released. The respondent delivered a special
plea in
terms of which he pleaded that the applicant’s claim had
prescribed. Thereafter, the parties agreed to submit
a special
case on prescription for adjudication by the Court in terms of rule
33(1) of the Uniform Rules of Court. A special
case is
submitted to court for adjudication by way of a statement agreed to
between the parties setting out the agreed facts, the
question of law
that the parties ask the court to decide, the parties’
contentions and the relief they seek.
[3]
The parties submitted an agreed statement in terms of rule 33.
After identifying the parties, the agreed statement reflected
the following as the “agreed facts giving rise to the claim”,
“the dispute”, “the parties’
contentions”
and the “relief sought”:
“AGREED FACTS
GIVING RISE TO THE CLAIM
3.
The plaintiff:
3.1
was arrested and thereafter detained by members of the South African
Police Service at Engcobo
Police Cells on the 27 September 2010;
3.2
at the beginning of July 2013 met with Mr Nkululeko Babe, an attorney
of this Court and
Plaintiff’s neighbour, who during the course
of their interaction enquired about the outcomes of the criminal case
in respect
of which the plaintiff had been arrested by the Police on
the 27 September 2010 and who, on being informed that the
plaintiff
was never taken to Court following his arrest but was
released by the police on the basis that when they need him, they
will call
on him again to attend and present himself at Court. Mr
Babe informed him at the beginning of July 2013 that he, the
plaintiff:
3.2.1
was not supposed to be detained in excess of a period of 48 hours
without him having been made to appear
before a court of law;
3.2.2
was wrongfully and unlawfully:
3.2.2.1 misled by the
Police into believing that they will at some point call upon him to
attend Court simply to conceal the wrongfulness
of their conduct, but
never call him; and
3.2.2.2 arrested and
detained by the Police in circumstances where they had no reason to
believe that he had committed an offence;
3.2.3
has a cause of action against the Minister of Police for unlawful
arrest and detention.
3.3
issued a statutory notice pursuant to the provisions of section 3
of the Institution
of Legal Proceedings Against Certain Organs of
State Act, 2002 (Act NO. 40 of 2002) in July 2013; and
3.4 issued and thereafter served
summons against the Defendant in April 2014.
THE DISPUTE
4.
The matter has
been set down for determination of the question whether the
plaintiff’s claim has prescribed or not
.
THE PARTIES’
CONTENTIONS
5.
The defendant contends that the plaintiff’s claim has
prescribed and the plaintiff disputes this issue.
6.
The plaintiff contends that before his meeting with Mr Nkululeko
Babe at the beginning of July 2013, he did not know that:
6.1
the conduct of the Police in not bringing him before a Court of
law within 48 hours following his arrest on the 27 September
2010 was wrongful and actionable
;
6.2
at the time of his arrest the Police did not have information upon
which they could have
formed a reasonable belief that he had
committed the offence for which he was arrested and thereafter
detained; and
6.3
he could sue the police.
RELIEF SOUGHT
7.
The defendant prays for:
7.1
an order upholding the special plea of prescription; and
7.2
dismissing the plaintiff’s claim with costs.
8.
The plaintiff prays for an order dismissing the special plea with
costs.”
[4]
From the agreed statement it is clear that the broad dispute
arising from the special plea was whether the applicant’s claim
had prescribed. The respondent contended that it had prescribed
whereas the applicant contended that it had not. That
this was
the case was reflected in paragraph 5 of the agreed statement.
Paragraph 5 read: “The defendant contends that
the plaintiff’s
claim has prescribed and the plaintiff disputes this issue”.
To decide that broad question, the
parties asked the Court in the
agreed statement to answer the question raised by the applicant’s
contention on why he took
the position that his claim had not
prescribed.
[5]
As to what the question of law was that the parties asked the
High Court to decide in order to determine whether the applicant’s
claim had prescribed or not, one has to look at paragraphs 6.1 and
6.3 of the agreed statement.
[3]
Paragraph 6.1 read with 6.3 raises the question whether the
applicant’s lack of knowledge that the conduct of the police
in
not bringing him before a court of law within 48 hours following his
arrest on 27 September 2010 was wrongful and actionable
and that he
could sue the police had the effect of preventing prescription from
running against him. Subparagraphs 6.1 and
6.2 must be read
against the respective outcomes each party wanted if the Court upheld
its contention on prescription. In
paragraph 7 the respondent
asked for “an order upholding the special plea on prescription”
and “dismissing the
plaintiff’s claim with costs”
whereas the applicant asked for an order dismissing the special plea
with costs.
[6]
The question of law that the parties effectively asked the
High Court to decide was whether a creditor is required to have
knowledge
that the conduct of the debtor giving rise to the debt is
wrongful and actionable before prescription can start running.
The applicant’s contention was that such knowledge was required
whereas the respondent contended that it was not.
High Court
[7]
The High Court held that such knowledge was not a requirement
before prescription could begin to run. Consistent with what
the parties clearly expected the Court to do if it reached that
conclusion on the issue, the High Court went on to conclude that,
therefore, the applicant’s claim had prescribed, upheld the
respondent’s special plea and dismissed the applicant’s
claim with costs. The High Court held that the question whether
or not the conduct of the debtor giving rise to the debt
is wrongful
and actionable is a conclusion of law and not a fact whereas section
12(3) of the Prescription Act requires the creditor
to have knowledge
of “the facts from which the debt arises”. In
concluding that a creditor did not need to have
knowledge that the
conduct of the debtor giving rise to the debt is wrongful and
actionable before prescription may begin to run,
the Court relied
upon the text of section 12(3) of the Prescription Act as well as
Claasen
[4]
and the cases discussed in that case on the issue of whether section
12(3) requires a creditor to have knowledge of a conclusion
of law
before prescription can begin to run. Those cases include
Van
Staden
,
[5]
Gore
[6]
and
Truter.
[7]
[8]
The High Court dismissed the applicant’s application for
leave to appeal as did the Supreme Court of Appeal.
In this Court
Jurisdiction
[9]
This Court has jurisdiction in this matter because this matter
raises prescription and prescription is a constitutional issue since
it implicates the right of access to court entrenched in section 34
of the Constitution.
[8]
Leave to appeal
[10]
The issue for determination involves the interpretation of
section 12(3) of the Prescription Act. It is whether section
12(3)
requires that a creditor should have knowledge that the conduct
of the debtor giving rise to the debt is wrongful and actionable
in
law before prescription may start running or before it can be said
that the debt is due. That is an important issue.
Although the Supreme Court of Appeal has pronounced on this issue in
a number of cases, this Court has never had the opportunity
of
pronouncing upon it. This case gives this Court an opportunity
of pronouncing once and for all on this issue so that the
law becomes
settled. There are reasonable prospects of success for the
applicant. It is in the interests of justice
that leave to
appeal be granted.
The appeal
[11]
This is an appeal in a special case as contemplated in rule
33. That is an important fact to bear in mind in deciding this
appeal. Since it is an appeal in the context of a special case
in terms of rule 33, it is important to discuss rule 33 before
actually considering and determining the appeal. This is
necessary for purposes of understanding the principles governing
the
adjudication of a special case submitted to court for adjudication
under rule 33.
[12]
Rule 33 reads as follows in so far as it is relevant:
“(1)
The parties to any dispute may, after the 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 in dispute
between the parties and their contentions 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 behalf of each party or,
where a party sues or defends personally,
by such party.
(b)
Such 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 or fact or of law from the facts and documents as if proved
at a trial.
(4)
. . .
(5)
When giving its decision upon any question in terms of this rule
the court may give such judgment 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 necessary 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
.”
What the agreed facts were, what the
question of law in dispute between the parties was and what the
parties’ contentions
were on the question of law in dispute in
the special case appear from the agreed statement. In a rule 33
special case the
contentions of the parties contained in the rule 33
statement, as required by rule 33(2)(a), constitute the issues
between
the parties which the court is asked to consider and decide
in order to determine the question of law in dispute between the
parties.
[13]
Rule 33(1) contemplates that parties to pending proceedings
may submit to the Court “a special case for the adjudication of
the court”. That means that the parties submit to the
court the case that they want the court to adjudicate.
Rule 33
tells us that the statement agreed to between the parties by way of
which the special case is submitted to court “
shall set
forth the facts agreed upon, the question of law in dispute between
the parties and their contentions thereon
”.
[14]
From rule 33(1) and (2)(a) it is clear that what is
contemplated in a special case is that 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 the
agreed statement. Rule 33(2)(a) provides that the parties may
annex to the statement “copies of
documents necessary to
enable the court to decide upon such questions
”. The
reference to “such questions” in rule 33(2)(a) is a
reference to “the questions of law in dispute
between the
parties” which one finds early in the provision. That, in
turn, is a reference to the question or questions
of law identified
by the parties as the questions that they are asking the court to
decide.
[15]
Rule 33(5) proceeds from this understanding when it says:
“when giving
its decision
upon any question in terms of this rule
the court
may give such judgment as may upon such decision be appropriate. . .
.”
From rule 33(5) it is clear that the
decision of the court is required to be “upon any question in
terms of this rule”.
As I have said, the reference to the
“question in terms of this rule” in rule 33(5) is a
reference to the 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
special 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 statement 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 not.
[16]
There is a good reason for this. In terms of rule 33
parties to pending proceedings agree upon a certain set of facts in
the
light of what the question is that the court is called upon to
decide and in the light of the particular contentions that both
parties will pursue. So, if a court were to change the question
to be decided from the one that the parties had agreed upon,
there
would be prejudice to one or both of the parties because, for the
different questions, one or both may have wished to add
certain facts
to the case or withdraw their agreement to certain facts. It
would, therefore, be fundamentally unfair to at
least one of the
parties but, possibly, to both if, in a special case, the court were
to change the question to be decided.
It would be both a
serious misdirection and a gross irregularity for a court to do so.
It is, therefore, important that the
court should study the agreed
statement carefully to identify the question of law that the parties
are asking it to decide so that
it should not decide a different
question from the question the parties asked it to decide.
[17]
This approach is the same as the approach that this Court
adopted in
Mighty Solutions.
[9]
There, the parties had submitted to Court a joint practice note
signed by Counsel for both parties which reflected the common
cause
facts and the issues agreed to between the parties. Then, one
of the parties sought in written and oral argument to
introduce a new
argument on unjustified enrichment. This Court said about this
attempt to introduce a new argument that fell
outside the practice
note:
“[61]
Rule 33(1) of the Uniform Rules of Court provides that parties to a
dispute may agree upon a written
statement of facts in the form of a
special case for the adjudication of points of law. This
statement sets out the facts
agreed upon and the questions of law in
dispute between the parties, as well as their contentions.
Rule 33(3) gives
the court the discretion to draw any inference
of fact or law from the facts and documents as if proved at trial.
In
Bane
it was said that rule 33(1) and (2) made it
clear that the resolution of a special case proceeds on the basis of
a statement of
agreed facts. It is, after all, seen as a means
of disposing of a case without the necessity of leading evidence.
[62]
The Rules of this Court do not speak of a practice note or statement
of facts. Rule 29
does not list rule 33 of the Uniform Rules as
applicable to this Court. However, until recently it was for
some time a practice
of this Court to issue directions calling upon
parties to submit an agreed statement of facts. The reason for
this mirrors
that of the Uniform Rules of Court in that it negates
the need for evidence and informs this Court as to what the facts of
the
case are about.
[63]
The joint practice note in the High Court was not only an agreement
on facts.
It was an agreement on the issues to be decided by the
High Court
. The High Court
regarded itself as bound by
the note. It confined itself to the two issues in it
. The
judgment dealt with the issues of standing and possessory rights
under the Act
. If this
Court were to entertain anything
beyond those two issues it would prejudice Engen, as it had no
opportunity to rebut the claim,
whether on the facts or the law
.
Furthermore, it would make this Court a court of first and last
instance.
An application for leave to appeal must be
adjudicated on whether and how the court below erred. This
Court can do so on the
two issues only. It would hardly be in
the interests of justice for an appeal court to overturn the judgment
of a lower court
on the basis of an issue that Court was never asked
to decide
. As lawyers often say, ‘on this basis
alone’ this Court should not entertain the enrichment argument.
[64]
Furthermore, Mighty Solutions did not raise enrichment in its notice
of motion. It did
so in its written and oral submissions. In
Barkhuizen
Ngcobo J noted that this Court may consider a point
of law that is raised for the first time on appeal if the point is
covered by
the pleadings and its consideration on appeal involves no
unfairness to the other parties.
Khumalo
supports this.
In
Lagoonbay
this Court stated that it must be in the
interests of justice, which takes into account the public interest
and whether the matter
has been fully and fairly aired, to hear a new
argument for the first time. In this case the issue was not
properly raised
on either the facts or the law.”
[10]
[18]
In the present case it is in paragraph 4 of the agreed
statement that the parties specified what the dispute was that the
Court
was called upon to determine. There, the parties wrote:
“THE DISPUTE
4.
The matter has been set down
for determination of the question
whether the plaintiff’s claim has prescribed or not
.”
In paragraph 5 of the agreed statement
the parties set out their contentions. They pointed out that
“(t)he defendant
contends that the plaintiff’s claim has
prescribed and the plaintiff disputes this issue”. How
was the Court
to determine whether or not the applicant’s claim
had prescribed? Rule 33 contemplates that in the agreed
statement
the parties would articulate the question of law to be
decided and would also set out their respective contentions. In
this
case the broad dispute between the parties was whether the
applicant’s claim had prescribed. To decide that dispute,
the Court had to have regard to the parties’ contentions
contained in the agreed statement. From the contentions of
the
parties emerged the question of law that the parties wanted the Court
to decide. The answer to that question would automatically
decide the dispute about whether the applicant’s claim had
prescribed.
[19]
In this case no elaboration was given on the respondent’s
contention that the applicant’s claim had prescribed.
However, elaboration was provided on the applicant’s contention
that his claim had not prescribed. That elaboration
appears in
paragraph 6.1 and 6.3 of the agreed statement. This meant that,
in order to determine whether or not the applicant’s
claim had
prescribed, the Court would have to consider and decide the
contentions advanced by the applicant in support of his stance
that
his claim had not prescribed. It follows that this meant that,
if the Court upheld the applicant’s contentions
in the agreed
statement, it would hold that his claim had not prescribed and the
applicant would succeed on the issue of prescription.
However,
if it rejected his contentions, it would have to hold that his claim
had prescribed and, thus, uphold the respondent’s
special plea
and dismiss the applicant’s claim.
[20]
What, therefore, were the parties’ contentions on the
basis of which the Court was called upon to determine whether the
applicant’s
claim had or had not prescribed? They appear
from paragraphs 5 and 6 of the agreed statement. Paragraphs 5
and 6 read:
“5.
The defendant contends that the plaintiff’s claim has
prescribed and the plaintiff
disputes this issue.
6.
The plaintiff contends that before his meeting with Mr. Nkululeko
Babe at the
beginning of July 2013, he did not know that:
6.1
the conduct of the Police in not bringing him before a Court of law
within 48 hours following
his arrest on the 27 September 2010 was
wrongful and actionable;
6.2
at the time of his arrest the Police did not have information upon
which they could have
formed a reasonable belief that he had
committed the offence for which he was arrested and thereafter
detained; and
6.3
he could sue the Police.”
[21]
As already stated, the contention in paragraph 6.2 is
irrelevant to the issue of prescription. Accordingly, no more
needs
to be said about it. The contention in paragraph 6.3 can
be seen as integral to the contention in paragraph 6.2. The
applicant also treated it as such in all the courts. The
contention in 6.3 that the applicant did not know that he could
sue
the police means simply that. It does not mean that he did not
know of the existence of the debt. After all he
was the one who
had been arrested, detained and, according to him, also assaulted by
the police. Therefore, when one talks
about lack of knowledge
of the existence of the debt in this case one is not, it must be
remembered, talking of a debt that is
based on a contract that the
creditor might not be aware of for one reason or another.
Paragraph 6.3 means that the applicant
did not know that he had
recourse or remedy in law. That is consistent with the
applicant’s contention that he had
no knowledge that the
conduct of the police was wrongful and actionable.
[22]
Paragraphs 5 and 6 need to be read together. When read
together, the paragraphs mean that what would determine whether the
applicant’s claim had prescribed, as contended by the
respondent, or, had not prescribed, as contended by the applicant,
would be a decision on whether the lack of knowledge claimed by the
applicant in paragraph 6 had the effect that prescription did
not
begin to run. If that lack of knowledge had the effect that
prescription did not begin to run, the Court would have to
hold that
the claim had not prescribed. If, however, that lack of
knowledge did not have that effect, the Court would have
to hold that
the claim had prescribed. Under paragraph 7 of the agreed
statement, the parties indicated what relief they
sought from the
Court. The respondent asked for “an order upholding the
special plea of prescription” and “dismissing
the
plaintiff’s claim with costs” whereas the applicant
sought “an order dismissing the special plea with costs”.
[23]
This Court is sitting as a court of appeal in an appeal
against a decision of the High Court. Therefore, the question
before
us is whether the High Court was correct in its decision that
section 12(3) of the Prescription Act does not require a creditor
to
have knowledge that the conduct of the debtor giving rise to the debt
was wrongful and actionable before the debt could be said
to be due
or before prescription could start running.
[24]
That the question before the High Court was whether, in terms
of section 12(3), a creditor needs to have knowledge that the
conduct of the debtor is wrongful and actionable before a debt can be
said to be due is to be gathered from the judgment of that
Court.
Nhlangulela DJP, who heard the matter in the High Court, put the
applicant’s case before him as follows: “The
upshot of
the plaintiff’s case is that he was ignorant of the fact that
he had a right to sue the defendant for damages as
soon as he was
released from detention”.
[11]
Later on, he said:
“In the
present case the upshot of
the plaintiff’s case is that he
did have the knowledge of [the] identity of the debtor and the
material facts giving rise
to the debt at the time when he was
released from detention in September 2010; but he did not know that
he had a legal remedy against
the defendant. That much was
submitted by Mr Bodlani, counsel for the plaintiff
, when he said
that the plaintiff was not aware of his rights until he was
approached by Mr Babe with a legal advice that the plaintiff
had a
right to sue the defendant for damages. For present purposes
the real question to be asked, and answered, is
whether knowledge
of a legal remedy is required for prescription to run.
”
[12]
[25]
The High Court’s identification of the applicant’s
case as being that the applicant had no knowledge that he had a legal
remedy against the defendant is not to be taken as saying that the
applicant did not know that the Minister of Police was a co debtor.
In the first lines of the passage it is made clear that the
applicant’s case was that he did have the knowledge of the
identity
of the debtor and the material facts giving rise to the debt
at the time he was released from detention in September 2010, but he
did not know that he had a legal remedy against the defendant. Since
the applicant’s own Counsel told the High Court,
as reflected
in this passage, that the applicant knew the identity of the debtor
and the facts giving rise to the debt, it cannot
now be said that the
applicant’s case was that he did not know that he had a debt or
that the Minister was a co-debtor.
[26]
The applicant’s bases for the position he took that his
claim had not prescribed were the contentions in paragraphs 6.1 and
6.2 of the rule 33 statement. That is that the applicant did
not know that the conduct of the police was wrongful and actionable
and that he had a remedy in law against the police. That the
High Court correctly identified the issue that the parties wanted
it
to decide is supported by the applicant’s formulation of the
issue in his application for leave to appeal to this Court
against
the decision of the High Court. The applicant says in paragraph
11.3 of his founding affidavit before us:
“The absence
of knowledge of a legal remedy should arrest the running of a
prescription. A prescription cannot run against
a person who is
innocent, ignorant and uninformed about the legal conclusions or
consequences of facts in possession of”.
In paragraph 11.5 of the same affidavit
the applicant continues:
“The
decision[s] of the Supreme Court of Appeal in
Claasen
,
Yellow
Star Properties
,
Van Staden, Truter
and
Gore
were,
with respect, incorrectly decided insofar as they impute knowledge of
legal conclusions or consequences on the part of a
creditor
irrespective of whether such innocent creditor is ignorant or
uninformed about such legal conclusions or consequences.”
[27]
Later in the same affidavit the applicant also said:
“12.6.2
Knowledge of legal conclusions or consequences are relevant for
determining the date from which prescription begins
to run. A
strict adherence to minimum facts alone could frustrate an innocent
creditor who has knowledge about the legal
conclusions or
consequences of the wrongful conduct of a debtor.
12.6.3
Therefore, prescription should begin to run from the date on which
the creditor acquires knowledge of legal conclusions
of the wrongful
conduct of a debtor. This interpretation has been rejected by
our courts, including the Supreme Court of
Appeal, as stated more
fully hereunder.
. . .
12.11
It will be observed that section 12(3) simply refers to ‘. . .
the facts from which the debt arises’.
Profoundly, the
sub-section does not make provisions for a creditor who has no
knowledge about the legal conclusions or consequences
flowing from ‘.
. . the facts from which the debt arises’.
It is this
lacuna which I respectfully ask the Honourable Court to deal with
because the court of first instance dismissed my action
against the
Respondent when there was agreed
evidence (in the form of a
stated case)
that I have no knowledge that my detention by the
police in excess of 48 hours without appearing before a court
was wrongful.
. . .
14.7
Whilst it is correct that my cause of action (i.e. wrongful arrest
and detention) was complete the moment I was released from detention,
I, however, did not know that I had a cause of action against the
police.
. . .
14.12
In line with the decisions in
Macleod
and
Shange
, in
this
case prescription should have begun to run in July 2013 i.e
.
the date when I was advised by my
attorney that my
detention in excess of 48 hours without being brought to a court of
law was wrongful and actionable in law
.”
[28]
It is clear from paragraph 12.11 of the applicant’s
founding affidavit that the applicant accepts that the question
before
us is, in effect, whether a creditor must have “knowledge
about legal conclusions or consequences flowing from . . . the facts
from which the debt arises” before it can be said that the debt
is due or before prescription can begin to run. It
is also
clear from the above paragraphs that the issue that the applicant
wants this Court to pronounce upon is a legal issue or
a legal
conclusion. That issue is whether under section 12(3) lack of
knowledge that the conduct of the debtor is actionable
and wrongful
prevents prescription from running.
[29]
Counsel for the applicant also confirmed, in response to a
question from the Bench, that the issue we are called upon to decide
is the same issue that the High Court was called upon to
decide. Counsel was asked this question during the hearing:
“Am I correct
in thinking that when one has regard to the stated case and the
contentions by the parties before the High Court
and indeed again
before us, am I correct in thinking that in effect what the lawyers
did before the trial Judge was to say ‘the
issue before us, the
issue between us, between the parties, in relation to prescription,
is whether prescription began to run immediately
after the release of
the applicant from detention or whether it began to run in July 2013
when the applicant got advice from Mr
Babe. The applicant –
that is the plaintiff – says prescription began to run in July
2013. The Minister
of Police says prescription began to run
immediately after the applicant was released from detention.
And
the basis on which we have this difference is that the plaintiff’s
side says knowledge of wrongfulness is a requirement
before
prescription begins to run and the Minister of Police says that is
not a requirement. So, we ask you, Court, to resolve
that
issue. If you conclude that wrongfulness is a requirement
before, then . . . the plaintiff, you must conclude that
prescription, his claim had, the plaintiff’s claim had not
prescribed. But if you conclude that knowledge of the
wrongfulness
of the conduct is not a requirement then you can
conclude that prescription, the claim had not prescribed
.
Am I correct to understand that that’s how it was run?”
[13]
Counsel for the applicant answered this
question in the affirmative.
[30]
The starting point in considering the question is to point out
that the question calls for a construction of section 12(3).
Since the question requires a construction of a statutory provision,
we must bear in mind the provisions of section 39(2)
of the
Constitution. Section 39(2) reads as follows in so far as it is
relevant:
“When
interpreting any legislation . . . every court, tribunal or forum
must promote the spirit, purport and objects of the
Bill of Rights”.
[31]
Section 12 of the Prescription Act reads:
“12
When prescription begins to run
(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.”
[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 found 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 wilfully prevents
him or her
“from coming to know of the existence of the debt” until
he i.e. the creditor “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
a debt that prescription
does not commence to run. It is only in those cases where the
debtor is wilfully preventing or has
wilfully 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 creditor does not know of the existence of a
debt prescription
does not commence to run.
[33]
There is a reason why the exception in subsection (2) applies
only where the reason for the creditor’s lack of knowledge of
the existence of the debt is a result of the fact that the debtor has
been wilfully preventing the creditor from coming to know
of the
existence of the debt. It is that, if the reason the creditor
does not know of the existence of the debt is that the
creditor has
failed to acquire that knowledge by exercising reasonable care when
he otherwise could have acquired it by exercising
reasonable care,
then the debt will have become due and prescription will have
commenced running.
[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 that 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.
[35]
We know that in the agreed statement, nothing is said to the
effect that the applicant did not have knowledge of the identity of
the debtor. In fact, the judgment of the High Court makes it
clear that counsel appearing for the applicant in that Court
said
that the applicant knew the identity of the debtor and the facts from
which the debt arose but what he did not know was whether
the conduct
of the police was wrongful and actionable. Therefore, any lack
of knowledge of the identity of the debtor is
not one of the issues
that the High Court was called upon to decide. The other thing
that the creditor must have knowledge
of in terms of section 12(3) is
referred to in the section as “the facts from which the debt
arises”.
[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
knowledge 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.
[14]
In his founding affidavit in support of his application for leave to
appeal to this Court, the applicant in effect criticises
the fact
that section 12(3) refers only to knowledge of “the facts from
which the debt arises” and does not also refer
to knowledge of
legal conclusions that must be drawn from those facts. He says
in the affidavit that this creates a lacuna
in section 12(3) and
that that is the question he is asking this Court to decide, namely,
whether section 12(3) requires a
creditor to also know that the
conduct of the debtor is wrongful and actionable before a debt may be
deemed to be due or before
prescription may begin to run. It is
not necessary to deal with the third exception which is provided for
in subsection (4)
because it does not arise in the present case.
[37]
The question that arises is whether knowledge that the conduct
of the debtor is wrongful and actionable is knowledge of a fact.
This is important because the knowledge that section 12(3) requires a
creditor to have is “knowledge of facts from which
the debt
arises”. It refers to the “facts from which the
debt arises”. It does not require knowledge
of legal
opinions or legal conclusions or the availability in law of a remedy.
[38]
The reference to “knowledge . . . of facts” in
section 12(3) raises the question of what a question of fact is as
distinct
from, for example, a question of law or a value judgment.
The distinction between a question of fact and a question of law
is
not always easy to make. How difficult it is will vary from
case to case. In
Perskor
[15]
the Appellate Division had to consider this question. In that
case the Court said:
“In
principle, therefore, there need not be a rigid classification of all
matters to be decided by a Court of law as being
either questions of
fact or questions of law.”
[16]
[39]
The Appellate Division referred to
Salmond on
Jurisprudence
[17]
and pointed out that the author uses the term “question of law”
in three distinct though related senses. The
Appellate Division
then said:
“In the first
place it means a question which a Court is bound to answer in
accordance with a rule of law a question
which the law itself
has authoritatively answered to the exclusion of the right of the
Court to answer the question as it thinks
fit in accordance with what
is considered to be the truth and justice of the matter. In a
second and different signification,
a question of law is a question
as to what the law is. Thus, an appeal on a question of law
means an appeal in which the
question for argument and determination
is what the true rule of law is on a certain matter. A third
sense in which the expression
‘question of law’ is used
arises from the division of judicial functions between a Judge and
jury in England and, formerly,
in South Africa. The general
rule is that questions of law in both the foregoing senses are for
the Judge, but that questions
of fact (that is to say, all other
questions) are for the jury.”
[18]
[40]
Another part of a passage that the Court quoted from
Salmond
reads:
“A question
of judicial discretion pertains to the sphere of right, as opposed to
that of fact in its stricter sense. It
is a question as to what
ought to be, as opposed to a question of what is. Matters of
fact are capable of proof, and are
the subject of evidence adduced
for that purpose. Matters of right and judicial discretion are
not the subject of evidence
and demonstration, but of argument, and
are submitted to the reason and conscience of the court. In
determining questions
of fact the court is seeking to ascertain the
truth of the matter; in determining questions of judicial discretion
it seeks to
discover the right or justice of the matter. Whether
the accused has committed the criminal act with which he is charged,
is a question of fact; but whether, if guilty, he should be punished
by way of imprisonment or only by way of fine, is a question
of
judicial discretion or of right.”
[19]
[41]
Within the context of the present case, the question is
whether, when a person says A’s conduct is wrongful and
actionable,
that is a statement of fact. If it is a statement
of fact and it is one of the facts from which the debt arose in this
case,
then the applicant’s case would fall within section
12(3). That would mean that the debt did not become due before
July 2013 and, therefore, prescription only started running in July
2013. However, if such statement is not a statement of
fact but
is, for example, a legal conclusion, then what the applicant did not
know falls outside section 12(3) and, therefore,
the debt did become
due upon the applicant’s release and prescription began to run
then. This would mean that the applicant’s
claim did
prescribe.
[42]
In
Perskor
the Appellate Division said one of the
senses in which the term “question of law” is used is
where the Court is bound
to answer in accordance with a rule of
law.
[20]
If one applies this sense to the question whether knowledge of
whether the conduct of the police was wrongful and actionable
is a
question of law, the answer would be in the affirmative.
[43]
In “Law and Fact”
[21]
Clarence Morris says:
“A conclusion
of law results when legal effects are assigned to events. A
conclusion of law stands for more than the
happening of events, it is
a step in the legal disposal of events. If a rule of law must
be applied before a conclusion is
reached, that conclusion is one of
law.”
[22]
In the same article it is also said:
“the
distinction between [questions of fact and questions of law] is
vitally practical. A question of fact usually calls
for proof.
A question of law usually calls for argument.”
[23]
Elsewhere the author says:
“By
definition, propositions of fact are descriptive of what happened,
and are bare of dispositive effect in themselves.
Conclusions
of law are more than that; they stand for description plus decision
that at least starts the process of disposing of
described
cases.”
[24]
[44]
Whether the police’s conduct against the applicant was
wrongful and actionable is not a matter capable of proof. 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 and actionable was not a fact and, therefore, falls outside
of section 12(3). It is rather a conclusion
of law. As I
point out elsewhere in this judgment, the second judgment accepts
that what the applicant says he did not know
is a legal conclusion
and not a fact. Once the second judgment had reached that
conclusion, that should have been the end
of the matter because that
is the only question that the Court is called upon to decide in
determining the appeal before us.
[45]
Knowledge that the conduct of the debtor is wrongful and
actionable is knowledge of a legal conclusion and is not knowledge of
a
fact. The second judgment accepts that this is so.
Therefore, such knowledge falls outside the phrase “knowledge
of facts from which the debt arises” in section 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.
[46]
In an unreported judgment in the then Transvaal Provincial
Division of the High Court in
Eskom v Bojanala Platinum District
Municipality
[25]
,
Moseneke J said:
“In my view,
there is no merit in the contention advanced on behalf of the
plaintiff that prescription began to run only on
the date the
judgment of the SCA was delivered. The essence of this
submission is that a claim or debt does not become due
when the facts
from which it arose are known to the claimant, but only when such
claimant has acquired certainty in regard to the
law and attendant
rights and obligations that might be applicable to such a debt.
If such a construction were to be placed
on the provisions of section
12(3) grave absurdity would arise. These provisions regulating
prescription of claims would
be rendered nugatory and ineffectual.
Prescription periods would be rendered elastic, open ended and
contingent upon the
claimant’s subjective sense of legal
certainty. On this contention, every claimant would be entitled
to have legal
certainty before the debt it seeks to enforce becomes
or is deemed to be due. In my view, legal certainty does not
constitute
a fact from which a debt arises under section 12(3).
A claimant cannot blissfully await authoritative, final and binding
judicial pronouncements before its debt becomes due, or before it is
deemed to have knowledge of the facts from which the debt arises.”
[47]
In
Truter
[26]
the Supreme Court of Appeal reiterated this principle
of section 12(3). It said:
“Section
12(3) of the Act requires knowledge only of the material facts from
which the debt arises for the prescriptive period
to begin running –
it does not require knowledge of the relevant legal conclusions (i.e.
that the known facts constitute
negligence) or of the existence of an
expert opinion which supports such conclusions.”
[27]
[48]
In
Gore
[28]
the Supreme Court of Appeal said:
“This Court
has, in a series of decisions, emphasised that time begins to run
against the creditor when it has the minimum
facts that are necessary
to institute action. The running of prescription is not
postponed until a creditor becomes aware
of the full extent of its
legal rights. . . .”
[29]
[49]
In
Yellow Star Properties
[30]
it was argued that, by reason of section 12(3), prescription had
begun to run only once Smit J had delivered his judgment to the
effect that the sale was invalid because, until then, the applicant
in that case could not have known that the sale was invalid.
The Supreme Court of Appeal rejected this contention and,
inter
alia,
said: “It may be that the applicant had not
appreciated the legal consequences which flowed from the facts, but
its failure
to do so does not delay the date prescription commenced
to run”.
[31]
[50]
In
Claasen
[32]
the Supreme Court of Appeal had to consider the same issue. It
referred to its previous decisions in
Truter
and
Gore
and said that these cases—
“[made] it
abundantly clear that knowledge of legal conclusions is not required
before prescription begins to run. . . . The
principles laid
down have been applied in several cases in this court, including most
recently
Yellow Star Properties 1020 (Pty) Ltd v MEC, Department
of Development Planning and Local Government, Gauteng
2009 (3) SA
577
(SCA) ([2009]
3 All SA 475)
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.”
[33]
In
Claasen
, Lewis JA also
referred to
ATB.
[34]
[51]
The most recent judgment of the Supreme Court of Appeal which
has also confirmed that section 12(3) does not require knowledge of
legal conclusions on the part of a creditor before a debt can be said
to be due is
Fluxmans
.
[35]
Both the majority and the minority judgments were agreed on this.
That an agreement is invalid is not a fact but a
legal
conclusion.
[36]
That seems to be the same as to say that that conduct is wrongful and
actionable is a legal conclusion and not a fact.
[52]
Counsel for the applicant relied heavily on the decisions of
the Supreme Court of Appeal in S
hange
[37]
and
Macleod
[38]
in support of his contention. In
Shange,
a learner –
Mr Shange – suffered a blunt-force injury to his right eye when
one of his teachers administered corporal
punishment on another
learner with a belt and the tip of the belt struck Mr Shange on the
side of his eye. The incident occurred
in June 2003 when
Mr Shange was 15 years 10 months old. After the incident, the
teacher said that the incident was a
“mistake” and Mr
Shange accepted it as such.
[53]
In January 2006 Mr Shange was 18 years 5 months old when,
after he had referred the matter to the office of the Public
Protector
on the advice of his mother’s friend, an advocate in
that office informed him that he had a claim against the Member of
the Executive Council for Education, KwaZulu-Natal (MEC). On
2 February 2006 Mr Shange’s attorney dispatched to
the
National Minister of Education (instead of to the MEC for Education,
KwaZulu-Natal) a notice in terms of section 3 of the Institution
of
Legal Proceedings against Certain Organs of State Act
[39]
(Act). That was a notice prescribed by section 3(1)(a) of the
Act informing the addressee of Mr Shange’s intention
to
institute legal proceedings. Mr Shange instituted action
against the MEC and served summons on the MEC on 3 December 2008.
He later gave the MEC the notice required by section 3(1)(a) of the
Act and, because this was done late, applied for condonation
in terms
of section 3(4)(a) of the Act. Section 3(4)(b) of the Act
provided that the Court could grant condonation for
that failure if
it was satisfied, among other things, that the “debt has not
been extinguished by prescription”.
[54]
The MEC delivered a special plea in terms of which she sought
the dismissal of Mr Shange’s claim for non-compliance with
sections
3(1)(a) and 3(2)(a) of the Act. In considering whether
to grant Mr Shange condonation, the Court had to consider whether his
claim had not prescribed. The Supreme Court of Appeal took the
view that there were two joint debtors in that case, namely,
the
teacher and the MEC. The latter was said to be a joint debtor
on the basis that she was vicariously liable for the delict
committed
by the teacher as it was committed within the course and scope of his
employment. The Supreme Court of Appeal concluded
that, on the
facts of the case, Mr Shange did not know the MEC’s identity as
his joint debtor until he was so informed by
the advocate in the
Public Protector’s office. The Court then held that, for
this reason, Mr Shange did not have the
knowledge contemplated in
section 12(3) of the Prescription Act in relation to the identity of
the MEC as a joint debtor and, therefore,
his claim against the MEC
had not prescribed. It said that this was so because the
prescription period had to be calculated
from January 2006 when an
advocate in the office of the Public Protector informed Mr Shange
that he had a claim against the MEC.
[55]
Shange’
s case does not assist the applicant.
In that case the Court decided the issue of prescription on the basis
that Mr Shange
had no knowledge of the MEC’s identity as a
joint debtor. The provision in section 12(3) that a debt is not
deemed
to be due until the creditor has knowledge of the identity of
the debtor is not the provision in issue in the present case. The
part of section 12(3) in issue in the present case is the part that
says a debt is not deemed to be due until the creditor has
knowledge
of the facts from which the debt arises.
[56]
The Court said in
Shange
:
“The
respondent’s affidavit comes closer to addressing the real
question. He states that an advocate in the office
of the
Public Protector advised him, in January 2006, to institute a civil
claim against the appellant. Unfortunately the
respondent's
legal representatives did not appreciate the significance of this
fact. Its disclosure, evidently for the first
time, informed
the respondent of the identity of the appellant as the joint debtor
with the teacher who injured him. He was
a rural learner of
whom it could not be expected to reasonably have had the knowledge
that not only the teacher was his debtor,
but more importantly, that
the appellant was a joint debtor.
Only when he was informed
of this fact did
he know the identity of the appellant as his
debtor for the purposes of the provisions of section 12(3) of the
Prescription Act.
”
[40]
[57]
Shange
dealt with the first requirement of section
12(3) whereas here we are dealing with the second part of section
12(3). In the
present case the applicant is asking this Court
to hold that in terms of section 12(3) of the Prescription Act a
creditor must
know that the conduct of the debtor giving rise to the
debt is wrongful and actionable – which is a legal conclusion
and
not a fact – before a debt can be said to be due or before
prescription can start running. In
Shange
the Supreme
Court of Appeal rejected that approach, albeit in passing.
It said that in that case Mr Shange’s
attorney’s
affidavit—
“focuse[d] on
allegations of wrongfulness that, in a long line of cases in this
court, has been held to be an irrelevant consideration
when the
provisions of section 12(3) of the Prescription Act are
considered.”
[41]
[58]
Macleod
also does not support the applicant’s
contention that section 12(3) of the Prescription Act requires a
creditor to have knowledge
that the conduct of his debtor is wrongful
and actionable in law before prescription may start running. In
Macleod
the Court first formulated two issues as the issues it
had to decide. The first, and the only one with which we need
to concern
ourselves, was “whether the respondent knew or could
have reasonably known the identity of the debtor and the facts on
which
her debt against the appellant arose before April 2006”.
[42]
Later on, the Court effectively qualified the formulation of that
issue by saying:
“The
appellant places no reliance on actual knowledge [in the context of
section 12(3)] but on constructive knowledge.
Constructive
knowledge is established if the creditor could reasonably have
acquired knowledge of the identity of the debtor and
the facts on
which the debt arises by exercising reasonable care.”
[43]
[59]
In
Macleod
the Court said:
“The question
is not whether [the respondent] could or could not have obtained the
documents from her mother or the appellant
but rather whether she was
negligent or innocent in failing to do so. There is no basis to
arrive at the conclusion that
she was negligent.”
[44]
[60]
Counsel for the applicant also referred to a passage in
Links
[45]
where this Court said:
“The
provisions of section 12 seek to strike a fair balance between, on
the one hand, the need for a cut-off point beyond
which a person who
has a claim to pursue against another may not do so after the lapse
of a certain period of time if he or she
has failed to act
diligently, and on the other, the need to ensure fairness in those
cases in which a rigid application of prescription
legislation would
result in injustice. As already stated, in interpreting section
12(3) the injunction in section 39(2) of
the Constitution must be
borne in mind. In this matter the focus is on the right
entrenched in section 34 of the Constitution.”
[46]
[61]
The applicant’s reliance on these cases is misplaced.
In
Macleod
the Court was dealing with the question whether, by
the exercise of reasonable care, the creditor in that case could have
acquired
knowledge of the identity of the debtor and the facts from
which the debt arose earlier than April 2006. In other words,
that case dealt with the proviso in section 12(3). In the
present case we are not dealing with the proviso. In any event,
the question we are called upon to decide in this case is not the
same as the question that the Supreme Court of Appeal had to
decide
in
Macleod
. Here, the question is whether a creditor
must have knowledge that the debtor’s conduct from which the
debt arises
is wrongful and actionable in law before the debt may be
said to be due or before prescription can start running.
[62]
We decline the invitation by Counsel for the applicant to hold
that the meaning of the provision in section 12(3) that a debt shall
not be deemed to be due until the creditor has “knowledge . . .
of the facts from which the debt arises” includes that
the
creditor must have knowledge of legal conclusions, i.e. that the
conduct of the debtor was wrongful and actionable. We
decline
it for a variety of reasons. I mention a few. The text of
section 12(3) does not support the contention, especially
as section
12(3) makes it clear that it refers to knowledge “of the facts
from which the debt arises”. That is
apart from knowledge
of the identity of the debtor.
[63]
Furthermore, to say that the meaning of the phrase “
the
knowledge of . . . the facts from which the debt arises
”
includes knowledge that the conduct of the debtor giving rise to the
debt is wrongful and actionable in law would render
our law of
prescription so ineffective that it may as well be abolished. I
say this because prescription would, for all intents
and purposes,
not run against people who have no legal training at all. That
includes not only people who are not formally
educated but also those
who are professionals in non-legal professions. However, it
would also not run against trained lawyers
if the field concerned
happens to be a branch of law with which they are not familiar.
The percentage of people in the South
African population against whom
prescription would not run when they have claims to pursue in the
courts would be unacceptably
high. In this regard, it needs to
be emphasised that the meaning that we are urged to say is included
in section 12(3) is
not that a creditor must have a suspicion (even a
reasonable suspicion at that) that the conduct of the debtor giving
rise to the
debt is wrongful and actionable but we are urged to say
that a creditor must have knowledge that such conduct is wrongful and
actionable
in law. If we were asked to say a creditor needs to
have a reasonable suspicion that the conduct is or may be wrongful
and
actionable in law, that would have required something less than
knowledge that it is so and would not exclude too significant a
percentage of society.
[64]
I have read the judgment by my Colleague, Jafta J (second
judgment). It concludes that the High Court erred in holding
that
the applicant’s claim had prescribed.
[47]
However, the second judgment does not base its conclusion on the
answer it gives to the question that the parties had asked
the High
Court and this Court to answer which would then result in the
resolution of the question of law in dispute between them.
[65]
The question of law in dispute between the parties was whether
the applicant’s claim had prescribed. The parties had
included in their rule 33 statement a contention that they asked the
Court to uphold or reject in order to resolve the question
of whether
or not the applicant’s claim had prescribed. The question
the High Court was asked to answer was whether
or not the applicant
needed to have had knowledge that the conduct of the Police against
him was wrongful and actionable before
prescription could begin to
run. The applicant’s contention was that such knowledge
was required by section 12(3) of
the Prescription Act. The
respondent’s contention was that it was not. The High
Court held in favour of the respondent.
[66]
The High Court’s basis for its conclusion was that
knowledge whether the police’s conduct was wrongful and
actionable
was knowledge of a legal question or a legal conclusion
and not of a fact as is required by section 12(3). Counsel for
the
applicant did not contest the proposition that this is a legal
conclusion or a legal question. Indeed, in his written
submissions
he made it clear that he was urging this Court to hold
that lack of knowledge of a legal conclusion, just like lack of
knowledge
of facts from which a debt arises, prevents prescription
from running.
[67]
The second judgment accepts that knowledge whether the conduct
of the police against the applicant was wrongful and actionable is
not knowledge of a fact but of a legal conclusion. This means
that the applicant’s lack of knowledge related to something
that fell outside the exception provided for in the second part of
section 12(3). The first part requires lack of knowledge
of the identity of the debtor. The second part requires lack of
knowledge of “the facts from which the debt arises”.
[68]
There are two grounds upon which the second judgment concludes
that the applicant’s claim had not prescribed by the time the
summons was served. The first is that the applicant did not
have knowledge of the identity of the Minister of Police as a
debtor. The second is that the applicant did not have knowledge
of the existence of the debt. This means that the second
judgment, in deciding the appeal, asked two questions. The
first was whether the applicant had been shown to have had knowledge
of the identity of the Minister of Police as a debtor or co-debtor.
The second was whether the applicant had been shown to
have had
knowledge of the existence of the debt.
[69]
Both these questions do not arise from the contentions of the
parties contained in the rule 33 statement of the parties. Both
questions were never raised before the High Court. Both
questions were never raised by any of the parties before this Court
either in their written submissions or in oral argument. As
indicated elsewhere in this judgment, there was only one question
that the parties wanted the High Court and this Court to decide.
That was whether lack of knowledge on the part of a creditor
that the
conduct of the debtor is wrongful and actionable prevents
prescription from running.
[70]
The question that arises, therefore, is whether this Court
would be entitled to raise these two questions and to decide the
appeal
on the basis of the answer it gives to them. The second
judgment says the Court may do so because these are questions of law
and a Court is entitled to raise a question of law at any time.
In support of this view, the second judgment relies upon
Paddock/Igesund
[48]
and cites a passage from Jansen JA’s judgment in that
case.
[49]
[71]
In my view, this Court may not raise these questions on appeal
and may not decide this matter on the basis of answers to those
questions.
The first ground for this view is that both these
questions are not points of law but points of fact. Being
points of fact,
a court of appeal may not raise them if they have not
been raised by the parties in the rule 33 statement and may not
answer them
to decide whether the applicant’s claim had
prescribed. Whether or not A knows the identity of B is a
question of fact.
Whether or not A knows of the existence of a
debt is also a question of fact.
[72]
The second ground is that, even if these two points were
points of law, neither the Court nor the applicant would be entitled
to
raise them. Indeed, the Court would not be entitled to
decide the appeal on the basis of these points. This is because
there are requirements which must be satisfied before a court may
raise a point of law that is not raised in the papers or that
is not
raised by any one of the parties in the papers and those requirements
have not been satisfied in the present case.
If the contention
contained in the rule 33 statement was not included in the agreed
statement as the contention which would determine
whether the claim
had prescribed or not, the court would have been entitled to then ask
the question whether the respondent had
shown that the applicant had
knowledge that the respondent was a co-debtor. However, given
that the parties chose to put
that contention before the court as the
contention that the court would have to uphold or reject to decide
whether the claim had
prescribed, the court is not entitled to decide
the appeal on the basis of any other question. That includes
the question
whether or not the respondents had shown that the
applicant had knowledge of the identity of the Minister of Police as
a debtor
or co debtor and the question whether the applicant had
knowledge of the debt. Those were not issues between the
parties
in terms of the rule 33 statement.
[73]
As was said by this Court in
Mighty Solutions
, the
issue upon which the second judgment decides this matter “was
not properly raised on either the facts or the law.”
[50]
In that matter this Court held that “(a)n application for leave
to appeal must be adjudicated on whether and how the
Court below
erred. This Court can do so on the two issues only. It
would hardly be in the interests of justice for
an appeal court to
overturn the judgment of a lower court on the basis of an issue that
[that] Court was never asked to decide.”
[51]
In
Genesis
this Court said that “(e)xcept in certain
limited situations none of which is present in this case, a court is
required to
decide matters on the basis of the issues between the
parties.”
[52]
The exceptions given in the relevant footnote are jurisdiction of a
court or tribunal,
locus standi
(standing), competence of an
order of a court or question of law that can be decided on the facts
before the court without any
party needing to lead new evidence.
None of those exceptions applies in the present case.
Therefore, reliance upon
the point that the applicant had no
knowledge that the Minister was a co-debtor to decide this appeal
runs contrary to this Court’s
decision in
Genesis
because
that was not an issue between the parties.
[74]
The second judgment approaches this matter as if the special
case as contained in the agreed statement submitted to the High Court
simply said that the issue to be decided by the Court was whether the
applicant’s claim had prescribed and stopped there.
In
other words it approaches the matter as if the agreed statement does
not include paragraphs 5 and 6 thereof which reflect the
contentions
which the Court was asked to uphold or reject in order to decide
whether the applicant’s claim had prescribed.
[75]
In
Mighty Solutions
Van der Westhuizen J, writing for a
unanimous Court, said:
“In
Barkhuizen
Ngcobo J noted that this Court may consider a point
of law that is raised for the first time if the point is covered on
appeal
by the pleadings and its consideration on appeal involves no
unfairness to the other parties.
Khumalo
supports this.
In
Lagoonbay
this Court stated that it must be in the
interests of justice, which takes into account the public interest
and whether the matter
has been fully and fairly aired, to hear a new
argument for the first time. In this case the issue was not
properly raised
on either the facts or the law.”
[53]
He went on to say:
“
The joint
practice note
in the High Court was not only an agreement on
facts. It was an agreement
on the issues
to
be
decided
by the High Court. The High Court regarded itself
as bound by the note. It confined itself
to the two issues
in it
. The judgment dealt
with the issues of
standing and possessory rights under the Act
. If this Court
were
to entertain anything beyond those two issues it would
prejudice Engen
, as it had no opportunity to rebut the claim,
whether on the facts or the law.
Furthermore, it would make
this Court a court of first and last instance
.”
[54]
Van der Westhuizen J, also said:
“It would
hardly be in the interests of justice for an appeal court to overturn
the judgment of a lower court on the basis
of an issue that that
Court was never asked to decide.”
[55]
In the present case the Court was never
asked to decide whether the applicant had knowledge that the Minister
was a co-debtor and
whether that lack of knowledge, if that be the
case, had prevented prescription from running.
[76]
In
CUSA
[56]
this Court said:
“[67] Subject
to what is stated in the following paragraph, the role of the
reviewing court is limited to deciding issues
that are raised in the
review proceedings. It may not on its own raise issues which
were not raised by the party who seeks
to review an arbitral award.
There is much to be said for the submission by the workers that
it is not for the reviewing
court to tell a litigant what it should
complain about. In particular, the Labour Relations Act
specifies the grounds upon
which arbitral awards may be reviewed. A
party who seeks to review an arbitral award is bound by the grounds
contained in
the review application. A litigant may not on
appeal raise a new ground of review. To permit a party to do so
may very
well undermine the objective of the Labour Relations Act to
have labour disputes resolved as speedily as possible.
[68] These
principles are, however, subject to one qualification. Where a
point of law is apparent on the papers, but the
common approach of
the parties proceeds on a wrong perception of what the law is, a
court is not only entitled, but is in fact
also obliged,
mero
motu
, to raise the point of law and require the parties to deal
therewith. Otherwise, the result would be a decision premised
on an incorrect application of the law. That would infringe the
principle of legality. Accordingly, the Supreme Court
of Appeal
was entitled
mero motu
to raise the issue of the
Commissioner’s jurisdiction and to require argument thereon.
However, as will be shown below,
on a proper analysis of the
record, the arbitration proceedings in fact did not reach the stage
where the question of jurisdiction
came into play.”
[57]
[77]
From these two paragraphs in
CUSA
, it will be seen that
this Court said in paragraph 67 that, subject to what it said in
paragraph 68, the general rule is that a
court may not decide a case
on the basis of its own issues that have not been raised by the
parties in the papers. It said
in effect that a court should
not tell a litigant what it should complain about. In paragraph
67 this Court said that this
was subject to one qualification.
That qualification was stated as being that a court may decide a
matter on a point of law
that has not been raised by the parties in
the papers where the common approach of the parties proceeds on a
wrong perception of
what the law is and the point of law is apparent
on the papers. In the present case the two points upon which
the second
judgment decides the appeal are neither apparent from the
rule 33 statement nor is this a case where the common approach of the
parties proceeds from a wrong perception of what the law is.
[78]
The second judgment relies upon
Paddock/Igesund
[58]
to say it is permissible to decide the present appeal on points that
were not in issue between the parties. It quotes in
paragraph
176 a passage from the judgment of Jansen JA in that matter which at
first glance may appear to support that proposition.
However, a
reading of the paragraph as a whole reveals that the paragraph does
not actually support that proposition. The
passage from
Paddock/Igesund
quoted by the second judgment in paragraph 176
reads:
“The
argument, however, overlooks the fact that the agreement contemplated
by Rule 33(1) and (2)(a) primarily relates
to the facts –
not ‘the questions of law in dispute between the parties and
their contentions thereon’. If
e.g. the parties were to
overlook a question of law arising from the facts agreed upon, a
question fundamental to the issues they
have discerned and stated,
the Court could hardly be bound to ignore the fundamental problem and
only decide the secondary and
dependent issues actually mentioned in
the special case. This would be a fruitless exercise, divorced
from reality, and may
lead to a wrong decision.”
[59]
[79]
This passage is qualified by the next few sentences that come
after it. They read:
“This
does not mean that the Court will always be free to enlarge the
issues, whether
mero motu
or at the request of a party.
The question of prejudice may arise, i.e. where a party would not
have agreed on material facts,
or on only those stated in the special
case, had he realised that other legal issues, not stated in the
special case, were involved.”
[60]
[80]
In
Paddock/Igesund
the Appellate Division went on to
say in the next sentence that in that case “such considerations
do not arise as the question
the appellant now seeks to raise was
actually part of the special case when the facts were agreed upon
(which immediately serves
to distinguish the present case from cases
such as
Commissioner for Inland Revenue v Estate Crewe and
Another
,
1943 AD 656
at p. 682, and
Commissioner for
Inland Revenue v Lazarus’ Estate and Another
,
1958
(1) SA 311
(AD)
.
Moreover,
the contention as to the fulfilment of the ‘condition precedent’
turn on the proper construction of the
contract, which is also basic
to the adjudication upon the other two points of law.”
[61]
[81]
So,
Paddock/Igesund
is, in any event, distinguishable
from the present case because in that case there could be no
prejudice to the other party if
the matter was decided upon the point
of law that had been conceded in the lower court since that point had
been included in the
rule 33 statement. In the present case the
point relied upon in the second judgment to decide the matter was
never included
in the Rule 33 statement.
[82]
Deciding this appeal on the basis of the two points raised in
the second judgment will seriously prejudice the respondent.
If
the applicant had raised these points before the signing of the rule
33 statement, the respondent would have been entitled to
insist that
other facts be included in the list of agreed facts. Those
additional facts would be facts on the basis of which,
if they were
agreed to, the respondent would contend, for example, that the
applicant had failed to exercise reasonable care and,
had he
exercised reasonable care, he would have acquired knowledge of the
identity of the Minister of Police as a debtor or co-debtor
within,
for example, a month from the date of his release from detention.
That is a defence that is provided by the proviso
to section 12(3)
which would have been available to the respondent. It is no
longer available now because no factual foundation
for it has been
included in the rule 33 statement. Therefore, deciding the
appeal on the basis of the two points relied upon
by the second
judgment will be prejudicial to the respondent.
[83]
In my view, therefore, it would go against quite a few
judgments of this Court, namely,
CUSA
[62]
,
Barkhuizen
[63]
,
Mighty Solutions
[64]
and
Genesis
[65]
,
to decide this appeal on the points that the applicant had no
knowledge of the identity of the Minister of Police as a debtor
or on
the point that the applicant had no knowledge of the existence of the
debt.
[84]
In conclusion I can do no better than repeat what this Court
said in
Mdeyide
[66]
about the vital importance of prescription. In that case, this
Court said:
“This Court
has repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal
affairs, and maintaining
the quality of adjudication. Without prescription periods,
legal disputes would have the potential
to be drawn out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute. The quality
of adjudication by
courts is likely to suffer as time passes, because evidence may have
become lost, witnesses may no longer be
available to testify, or
their recollection of events may have faded. The quality of
adjudication is central to the rule
of law. For the law to be
respected, decisions of courts must be given as soon as possible
after the events giving rise to
disputes, and must follow from sound
reasoning, based on the best available evidence.”
[67]
Already, creditors have enough time to
institute proceedings under the Prescription Act. The
minimum period is three
years. There is no need to stretch the
extinctive period to more than three years as a norm.
[85]
The appeal falls to be dismissed. As to costs,
Biowatch
[68]
applies. Therefore, although the applicant has been
unsuccessful, he is not to pay the respondent’s costs.
Order
[86]
In the result the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JAFTA J (Nkabinde ADCJ and Mojapelo AJ
concurring):
[87]
I have had the benefit of reading the judgment prepared by my
colleague Zondo J (first judgment). I agree that leave to
appeal
should be granted but disagree that the appeal must fail.
I think it should succeed and the order of the trial Court upholding
the special plea must be set aside.
Background
[88]
This case requires us, by means of statutory interpretation,
to strike a balance between holding the state to account for an
infringement
of the guaranteed right to physical freedom
[69]
and the objectives of statutory time limits such as “bringing
certainty and stability to social and legal affairs and maintaining
the quality of adjudication”.
[70]
[89]
A good place to start this exercise is the Constitution.
Section 205 establishes a national police service charged with the
responsibility “to prevent, combat and investigate crime, to
maintain public order, to protect and secure the inhabitants
of the
Republic and their property, and to uphold and enforce the law.”
[71]
It is apparent from this provision that one of the primary
obligations imposed on the police by the Constitution is “to
protect and secure the inhabitants of the Republic.” This
constitutional protection extends even to those who are arrested
for
committing crimes. For even the vilest criminals retain the
rights guaranteed by the Bill of Rights.
[90]
In addition, section 7 of the Constitution does not only
declare that the Bill of Rights is a cornerstone of our
constitutional
order but also imposes a specific duty on the state to
“respect, protect, and fulfil the rights in the Bill of
Rights.”
In simple terms this means that the Minister of
Police and members of the South African Police Service
(Service), are duty-bound
to respect, protect, promote and fulfil the
rights safeguarded by the Bill of Rights.
[91]
A constitutional dichotomy arises when members of the Service,
contrary to their obligations, unlawfully arrest and detain people,
and assault them while in their custody. And when a civil
action is pursued by the victims, the Minister of Police (Minister)
invokes an apartheid-era statute in an attempt to avoid
responsibility and liability for the breach of not only the
guaranteed
rights but also the obligations imposed by the
Constitution. This was done in circumstances where the Minister
was not compelled
to raise prescription. The Prescription Act
on which he relied leaves it to the discretion of a debtor to raise
prescription.
[72]
If a debtor does not raise prescription, a court cannot on its own
accord take notice of prescription even where the facts
show that the
debt has prescribed. Such debtor may even waive the right to
raise prescription.
[73]
Seen in this context, it is remarkable that a Minister of a
democratic government would invoke an apartheid-era legislation
to
undermine the Constitution. And to do so in circumstances where
he agreed in writing in the statement of agreed facts
that the
claimant had no knowledge of the existence of the claim.
Facts
[92]
Here the claim as gleaned from the pleadings arose in these
circumstances. The applicant, an illiterate resident of a rural
location called Mxesibe in All Saints Administrative Area
in the district of Engcobo, Eastern Cape, was arrested and
detained
by members of the Service. At the time of arrest, he was
assaulted in full view of members of the general public.
He was
not taken to court within 48 hours as demanded by section 35(1)(d) of
the Constitution.
[74]
He was released from detention on the fifth day.
[93]
At the time of the alleged arrest, assault and detention, the
members of the Service concerned were acting within the course and
scope of their employment with the Minister. Consequently as
their employer, the Minister was vicariously liable for their
wrongful acts. As a result the applicant instituted in the High
Court an action in which he claimed payment of R350 000.
This action was initiated in April 2014, just over three years from
the date of his arrest. The arrest occurred on
27 September 2010.
[94]
In resisting the claim, the Minister filed a special plea of
prescription and also pleaded on the merits. The special plea
reads:
“1.1
The plaintiff is a major person.
1.2
The plaintiff was arrested on the 27
th
September 2010.
1.3
Summons was issued on the 25
th
March 2014.
1.4
The aforesaid summons were served to the offices of the Defendant on
the 27
th
March 2014.
1.5
The plaintiff knew that he was arrested on the 27
th
September 2010 and he further knew who the debtor was.
1.6
On the basis stated above a period of three (3) years from the
27
th
March 2014 has lapsed.
1.7
On the basis set out above this claim should be dismissed with
costs.”
[95]
It is apparent from the special plea that the Minister
contended that prescription commenced running on the day of the
arrest.
He asserted that as on that day the applicant knew that
he was arrested and “he further knew who the debtor was.”
It appears that the Minister relied on the provisions of section
12(3) in determining the date from which prescription began to
run.
That section stipulates that a debt shall be deemed to be due on the
date the creditor has knowledge of the identity
of the debtor and the
facts from which the debt arises.
[96]
After the pleadings were closed, the parties did not proceed
straight to trial. Instead, they invoked rule 33 of the Uniform
Rules of the High Court which sanctions a special procedure of
deciding a case without hearing oral evidence. Under the rule,
parties are required to agree upon a written statement of facts in
the form of a special case for adjudication of the matter
by the
court.
[75]
This statement must set out the facts agreed upon, the questions of
law in dispute between the parties and their contentions
on those
issues.
[97]
Crucially, the purpose served by the agreed statement of facts
is to dispense with the leading of evidence to establish facts
necessary
for success of parties on either side. Therefore, the
Court is not required to evaluate evidence so as to make factual
findings.
But the Court is still required to make factual
findings based on the agreed facts. In this regard rule 33(3)
provides:
“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 proved at a
trial.”
[98]
Here having set out the facts they had agreed on, the parties’
statement outlined the question of law the trial Court was asked
to
determine. That was simply whether the applicant’s claim
had prescribed. This was followed by the parties’
contentions which were brief and concluded by describing the relief
sought by the Minister. He asked the Court to uphold
the
special plea of prescription and dismiss the applicant’s claim.
[99]
Having noted that the Minister relied on section 12(3) of the
Prescription Act,
[76]
the High Court defined the applicant’s case thus:
“The upshot
of the plaintiff’s case is that he was ignorant of the fact
that he had a right to sue the defendant for
damages as soon as he
was released from prison.”
[77]
[100]
From this characterisation of the applicant’s claim, the
High Court proceeds to identify the issue it was required to
determine.
The Court said for the remissness of the plaintiff
to be excused it must be subjected to the test stated by Tshiqi JA in
Macleod
. In that case the Supreme Court of Appeal had
pronounced:
“It is the
negligent, and not an innocent inaction that section 12(3) of the
Prescription Act seeks to prevent and courts
must consider what is
reasonable with reference to the particular circumstances in which
the plaintiff found himself or herself.”
[78]
[101]
Having referred to
Macleod
and
Shange
[79]
the High Court held:
“In the
present case the upshot of the plaintiff’s case is that he did
have the knowledge of identity of the debtor
and the material facts
giving rise to the debt at the time when he was released from
detention in September 2010; but he did not
know that he had a legal
remedy against the defendant. That much was submitted by
Mr Bodlani, counsel for the plaintiff,
when he said that the
plaintiff was not aware of his rights until he was approached by Mr
Babe with a legal advice that the plaintiff
has a right to sue the
defendant for damages. For present purposes the real question
to be asked, and answered, is whether
knowledge of a legal remedy is
required for prescription to run.”
[80]
[102]
Two observations emerge from this statement which constitutes
the ratio of the High Court’s judgment. First, the Court
interpreted the applicant’s case as that “he did have the
knowledge of the identity of the debtor and the material
facts giving
rise to the debt at the time when he was released from detention in
September 2010, but he did not know that he had
a legal remedy
against the defendant”. It will be recalled that the
special procedure in rule 33 obliged the Court
to make findings
based only on the agreed facts, in the written statement. A
perusal of that statement supports the finding
that at the time of
the release, the applicant did not know that he had a legal remedy
against the Minister.
[103]
There are no facts in that statement which support the finding
that the applicant had knowledge of the identity of the debtor and
the material facts giving rise to the debt. On what then is the
Court’s finding based?
[104]
This leads us to the second observation. The finding was
based on an inference the Court drew from the submission made by the
applicant’s counsel. In its own words the Court said:
“That much
was submitted by Mr Bodlani, counsel for the plaintiff, when he said
that the plaintiff was not aware of his right
to sue the defendant
for damages.”
[105]
The opening words “that much” comes immediately
after the factual findings made by the High Court and link the
submission
made by counsel to those findings. In my view, the
High Court erred in doing so. A submission by counsel cannot be
a basis for a factual finding. Moreover, that submission was to
the effect that the applicant was unaware that he could sue
the
Minister for damages. And this submission was based on one of
the agreed facts appearing on the statement that formed
the special
case on the basis which the Court was requested to adjudicate the
case.
[106]
It is difficult for me to appreciate how the statement on lack
of knowledge can establish a positive knowledge on the identity of
the debtor and the material facts giving rise to the debt. It
is impossible for a person who did not know that he had a claim
to,
at the same time, know the identity of his debtor and the material
facts giving rise to the claim he had no knowledge of.
Knowledge of the latter facts may be present if one is aware of the
existence of a debt.
[107]
Proceeding from this error, the High Court concluded:
“For present
purposes the real question to be asked, and answered, is whether
knowledge of a legal remedy is required for
prescription to run.”
[108]
This conclusion differed from the holding made earlier to the
effect that in issue was to determine whether the applicant’s
remissness met the test laid down in
Macleod
. Not only
was there an inconsistency in the Court’s approach but the
Court also departed from the special case procedure
prescribed by
rule 33. It will be recalled that the rule requires that any
inference of fact or law be drawn from the agreed
statement of facts
and its annexures only and those facts are treated as if proved at
trial. Drawing an inference from counsel’s
submission is
at odds with this procedure and such a finding cannot be taken as if
it was based on facts that were proved at trial.
[109]
The procedural error has unquestionably led the Court astray.
The question it was called upon to decide was whether the applicant’s
claim, as shown by the agreed facts, had prescribed. The
Minister, on whom the onus of establishing the special plea
rested,
could succeed only if the facts set out in the statement of
agreed facts indicated that the applicant had knowledge
that the
Minister was vicariously liable for the arrest, assault and detention
by the police and the material facts giving
rise to the claim.
The statement must have exhibited this knowledge as in September
2010. Without such facts there
was no foundation for the
finding made by the High Court. Crucially that Court approached
the matter on the footing that
it was required to determine the
nature of the applicant’s claim, instead of the Minister’s
special plea in accordance
with rule 33. This was a
fundamental error.
The appeal
[110]
Since this is an appeal, we must return an order which the
Court of first instance should have made.
[81]
This requires us to determine the question of law posed in the
special case and make whatever factual findings necessary
from the
agreed facts set out in the parties’ written statement.
More importantly, that enquiry requires us to interpret
the
provisions of the Prescription Act so as to determine whether the
applicant’s claim had prescribed at the time the action
was
initiated.
Constitutional approach
[111]
The Constitution obliges every court when interpreting a
statute to promote the spirit, purport and objects of the Bill of
Rights.
[82]
This constitutional approach has been affirmed by this Court in a
number of cases.
[83]
Moreover, this Court has already held that the Prescription Act
limits the right of access to courts, and together with other
rights
in section 34 of the Constitution.
[84]
The duty imposed by the Constitution during the process of
interpreting statutes was described in detail in
Makate
.
It entails giving a statutory provision a meaning that does not only
avoid limiting rights guaranteed by the Bill of Rights
but also
prefer a meaning that promotes those rights.
[112]
Here we are obliged to prefer a meaning of the relevant
provisions that promotes, among others, the applicant’s right
of access
to courts and his right to have the dispute between the
parties determined in a fair manner by a court, applying the relevant
law.
[113]
In addition, we must also bear in mind that the Prescription
Act we are concerned with precedes the Constitution. It was
enacted
under the principle of the supremacy of Parliament which
allowed Parliament to pass any legislation, even legislation that
violated
fundamental rights. This was in stark contrast with
the principle of the supremacy of the Constitution which is now in
operation.
The latter principle obliges Parliament to pass
legislation that is consistent with the Constitution. The
presumption that
a statute is constitutionally compliant, if there is
no invalidity challenge, is associated with the latter principle.
[114]
That presumption does not apply to statutes that were passed
during the apartheid era. When it comes to legislation of that
era, courts must be more vigilant because the risk of assigning a
meaning to a statute that limits guaranteed rights is higher.
This, in turn, requires a careful discharge of the duty imposed by
section 39(2).
[115]
Therefore, it is not surprising that, at face value, some of
the provisions of the Prescription Act appear to be inconsistent with
the values contained in our Constitution. For example, without
any discernible reasons, section 11 of that Act arbitrarily
determines varying periods of prescription. These range from 30
years for a debt secured by a mortgage bond, a judgment debt,
a debt
arising from taxation and a debt owed to the state in respect of
share profits and royalties. Fifteen years in respect
of other
debts owed to the state. Six years in respect of a debt arising
from a cheque or a bill of exchange and three years
for all other
debts.
[116]
The shortest period of three years applies even to debts
which, like in the present matter, arise from a violation of the
rights
safeguarded by the Bill of Rights. It will be recalled
that the applicant’s claim is based on the rights to physical
freedom and to be free from all forms of violence, guaranteed by
section 12 of the Constitution. Furthermore, the violation
of
those rights occurred in breach of the obligation to respect,
protect, promote and fulfil the rights in the Bill of Rights.
But not only that, the duty imposed on the Service by section 205 of
the Constitution was also breached. It will be remembered
that
this section requires the Service to protect and secure the
inhabitants of the Republic.
[117]
The application of the stipulated period of three years to
this case would mean that the applicant’s constitutional rights
are not vindicated and that the state gets away with the flagrant
violation of the Constitution. This will be occasioned
by the
applicant’s ignorance of his legal rights until about seven
months before he instituted the action. Consequently
and owing
to his special circumstances, he had a window of about seven months
to exercise his constitutional right of access to
court so as to
vindicate his other rights.
[118]
To construe the relevant provisions as having permitted him
that short period would amount to punishing the applicant for the
vulnerable
position he found himself in and which was a direct
consequence of the inequalities of the apartheid era. These
were aptly
described in
Mohlomi
by Didcott J in these terms:
“That
disparity must be viewed against the background depicted by the state
of affairs prevailing in South Africa, a land
where poverty and
illiteracy abound and differences of culture and language are
pronounced, where such conditions isolate the people
whom they
handicap from the mainstream of the law, where most persons who have
been injured are either unaware of or poorly informed
about their
legal rights and what they should do in order to enforce those, and
where access to the professional advice and assistance
that they need
so sorely is often difficult for financial or geographical reasons.
The severity of section 113(1) which then
becomes conspicuous has the
effect, in my opinion, that many of the claimants whom it hits are
not afforded an adequate and fair
opportunity to seek judicial
redress for wrongs allegedly done to them. They are left with
too short a time within which
to give the requisite notices in the
first place and to sue in the second. Their rights in terms of
section 22 are thus,
I believe, infringed.”
[85]
[119]
The absurdity of imposing three years for claims based on the
violation of the Constitution and allowing 30 years for a debt
secured
by a mortgage bond is indeed stark. There can be no
justification for creditors whose debts are based on cheques to have
double the time permitted for the claims that seek to vindicate the
Constitution. Of course, the validity of the Prescription
Act
is not challenged before us.
[120]
While one accepts the important purpose served by legislation
like the Prescription Act, one is left wondering how that purpose is
achieved in the case of long periods of prescription such as 30 years
or 15 years. That purpose was defined in these words
in
Mdeyide
:
“This Court
has repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal
affairs, and maintaining
the quality of adjudication. Without prescription periods,
legal disputes would have the potential
to be drawn out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute. The quality
of adjudication by
courts is likely to suffer as time passes, because evidence may have
become lost, witnesses may no longer be
available to testify, or
their recollection of events may have faded. The quality of
adjudication is central to the rule
of law. For the law to be
respected, decisions of courts must be given as soon as possible
after the events giving rise to
disputes, and must follow from sound
reasoning, based on the best available evidence.”
[86]
[121]
The objective of “certainty and stability to social and
legal affairs, and maintaining the quality of adjudication” may
not be achieved in cases where the prescription period is 15 or 30
years. This is because evidence relevant to the issues
may have
been lost, witnesses may no longer be available or their memory may
have faded. This would lead to a poor quality
of adjudication
which in turn would seriously undermine the rule of law. Such
long periods frustrate the realisation of certainty
and stability in
social and legal affairs. As a result there is no rational link
between the means chosen and the objective
of prescription.
[122]
In
Murray & Roberts
the Court articulated the
purpose of the Prescription Act in these terms:
“Although
many philosophical explanations have been suggested for the
principles of extinctive prescription . . . its main
practical
purpose is to promote certainty in the ordinary affairs of people.
Where a creditor lays claim to a debt which
has been due for a long
period, doubts may exist as to whether a valid debt ever arose, or,
if it did, whether it has been discharged.
. . . The alleged debtor
may have come to assume that no claim would be made, witnesses may
have died, memories would have faded,
documents or receipts may have
been lost, etc. These sources of uncertainty are reduced by
imposing a time limit on the existence
of a debt, and the relevant
time limits reflect, to some extent, the degree of uncertainty to
which a particular type of debt is
ordinarily subject (section 11 of
the Act).”
[87]
[123]
As mentioned, there are no discernible reasons for the
Prescription Act to afford some creditors 30 years within which to
exercise
their right of access to court and others be allowed three
years only. Nor are there convincing reasons for giving more
protection
to commercial creditors and the State. The varied
periods of prescription treat creditors unequally and are also
inconsistent
with the right to equal protection and benefit of the
law.
[88]
[124]
The fact that as a concept prescription is not inconsistent
with the Constitution does not mean that every provision in a
prescription
statute is consonant with the Constitution. While
the rights guaranteed by the Bill of Rights like the right of access
to
courts may be limited, the limitation must meet the requirements
of section 36 of the Constitution. If not, a clause in a
prescription statute would be invalid. As a subject matter
prescription does not insulate a statute in which it is contained
from constitutional scrutiny, including the manner of interpretation
stipulated in section 39(2) of the Constitution.
[125]
Consequently our duty in construing section 12(3) of the
Prescription Act is not only to search for an interpretation
that
avoids these constitutional anomalies but to adopt a meaning
that promotes the objects of the Bill of Rights. Of
course,
this exercise may be undertaken only if the language of the
provision is reasonably capable of such an interpretation.
The relevant scheme
[126]
Chapter III of the Prescription Act governs the prescription
of debts. It consists of sections 10 to 16. Section 10
stipulates that a debt shall be extinguished by prescription after
the lapse of the period stated in section 11. Section 11
lists
varying periods for different debts. Section 12 determines the
date from which prescription starts to run. This
section is
crucial to the determination of this matter and as a result I return
to it later. Section 13 acknowledges the
unjust consequences
flowing from the running of prescription in circumstances where the
creditor was not in a position to enforce
the debt. While it
allows prescription to run, the section affords a creditor two years
within which to enforce the
debt if there was an impediment.
[127]
The section lists about eight instances which interrupt the
running of prescription. These include minority, insanity,
curatorship
and an impediment occasioned by a superior force.
[128]
Sections 14 and 15 regulate other forms in terms of which
prescription is interrupted. In terms of section 14, the
running
of prescription is interrupted if the debtor acknowledges
liability of the debt. If this happens, prescription commences
to run afresh from the date of the acknowledgement. Under
section 15, prescription is interrupted by conduct of the creditor
only. It is interrupted if the creditor serves upon the debtor
any legal process in terms of which payment of the debt is
claimed.
Section 16 determines the scope of the applicability of chapter
III.
Meaning of section 12(3)
[129]
Section 12 has been the subject of interpretation in a number
of cases. Some of these were decided before the coming into
effect of the Constitution. Consequently in those cases courts
did not apply section 39(2) of the Constitution to their
interpretation
exercise. But even those that were decided after
27 April 1994, most of them do not apply this constitutional
provision.
This is occasioned by the irresistible temptation to
assign to section 12, a meaning that was given to it under the
previous apartheid
order.
[130]
While judicial precedent as component of the rule of law,
forms part of the new legal order, care must be exercised when
seeking
guidance from the pre-Constitution decisions. Those
decisions must be followed only if they are not at odds with
section 39(2).
For that provision is part of our supreme
law which expressly declares that conduct or law that is inconsistent
with it is invalid.
[89]
But more importantly, the duty imposed by the section is ever present
whenever a court interprets a statute that implicates
the Bill of
Rights. If a court is minded to adopt a pre-Constitution
construction, it must first satisfy itself that the
meaning in
question promotes the spirit, purport and objects of the Bill of
Rights. To do otherwise would amount to paying
no attention to
the injunction in section 39(2). With this in mind, it is now
convenient to interpret section 12 of the Prescription
Act.
[131]
Section 12 provides:
“(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.
(4)
Prescription shall not commence to run in respect of a debt based on
the commission
of an alleged sexual offence as contemplated in
sections 3, 4, 17, 18(2), 20(1), 23, 24(2) and 26(1) of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
, and an
alleged offence as provided for in
sections 4
,
5
, and
7
and
involvement in these offences as provided for in
section 10
of the
Prevention and Combating of Trafficking in Persons Act, 2013, during
the time in which the creditor is unable to institute
proceedings
because of his or her mental or psychological condition.”
[132]
For a proper understanding of section 12(3) with which we are
concerned, the entire section 12 must be read in the context of the
whole chapter outlined earlier. Section 12(1) tells us that
prescription commences to run as soon as the debt is due.
The
words “as soon as the debt is due” have been construed to
mean as soon as the debt is recoverable or enforceable
by legal
proceedings. Thus in
Apalamah
, Miller J said:
“Although it
is true that in many cases the date upon which a debt ‘becomes
due’ might also be the date upon which
it ‘arose’,
that is obviously not true of all cases. There is a vital
difference in concept between the coming
into existence of a debt and
the recoverability thereof. There can be little doubt, if any,
that the purpose of the Legislature
in enacting section 12(1) of the
new Prescription Act was to crystallize that difference; thenceforth
prescription in terms of
that Act began to run not necessarily when
the debt arose but only when it became due.”
[90]
[133]
This construction was later affirmed by Diemont JA in
Jungers
in these words:
“
The
difference relates to the coming into existence of the debt on the
one hand and the recoverability thereof on the other hand.
. . . It
is a distinction which is recognised by the Legislature in the 1969
Prescription Act; section 12 provides that prescription
begins to run
‘as soon as the debt is due’, whereas section 16, which
relates not to the running of prescription but
to the application of
the Act, significantly refers to ‘a debt which arose.”
[91]
[134]
The notion that a debt is recoverable or enforceable
presupposes that the creditor is not only aware of the existence of
the debt
but also that he or she can also demand its payment, failing
which to institute legal proceedings to enforce payment. That
this is so is made clearer by the provisions of section 12(2) which
states that prescription shall not commence to run where the
debtor
has wilfully prevented the creditor from coming to know of the
existence of the debt. Indeed one can only institute
legal
proceedings for a debt he or she knows about and which is
recoverable. This manifestly illustrates that in the context
of
section 12(1), “recoverable or enforceable” must carry
the meaning of being able to claim the debt and that, in
turn,
requires knowledge of the existence of the debt and its ripeness, for
payment to be demanded.
[135]
To hold that a debt is recoverable even where the creditor has
no knowledge of it would clearly subvert the objects of section 12
in
particular. The main object is that prescription shall not
begin to run unless the debt is due and the creditor actually
knows
about it or he or she is deemed to know. Such an interpretation
would not accord with section 39(2) of the Constitution.
It
would frustrate the enjoyment of the rights guaranteed by section 34
in circumstances where it was impossible for the creditor
to
institute legal proceedings.
[136]
Even during the previous order in which fundamental rights
were not guaranteed, courts did not construe legislation to mean that
those on whom it applied were required to do the impossible.
Our courts have always held the view that–
“no one
should be compelled to perform or comply with that which is
impossible, in the sense of physical, objective impossibility.
This
must needs emanate from the underlying principles of justice, equity
and reasonableness which are suffused throughout
our legal
system.”
[92]
[137]
According to the maxim
lex non cogit ad impossibilia,
the law does not require a person to do the impossible. If
performance in terms of a particular law has been rendered impossible
by circumstances over which the person with interest had no control,
those circumstances are taken as a valid excuse for not complying
with what such law prescribes. The logic of this is apparent
from the terms of both subsections (2) and (3) of section
12.
Notably this principle was applied to statutes that imposed time bars
to the institution of legal proceedings.
[93]
[138]
In
Murray & Roberts
it was declared that the
Prescription Act has a duality of purpose which involves the
promotion of certainty, on the one hand and
the protection of a
creditor who is unable to institute legal proceedings, on the other.
In that case Grosskopf AJA stated:
“The Act,
however, also embodies a principle which is inconsistent with the
promotion of certainty.
It is accepted in the Act that there
are circumstances in which it would be unfair to require of the
creditor that he institute
proceedings within the time normally
allowed. This unfairness arises in the main where it is
impossible or difficult for
a creditor to enforce his rights within
the time limit
. . . . It will thus be seen that there are two
general principles which protect the creditor against the effects of
extinctive
prescription. The first is the basic requirement of
certainty which underlies extinctive prescription, where the debtor
removes
all uncertainty by acknowledging liability, or the creditor
does so by instituting and prosecuting legal proceedings, the running
of prescription is suitably adapted. The second principle is
that it may sometimes be impossible or difficult for the creditor
to
recover his debt. Here too the Act comes to his aid.”
[94]
[139]
The agreed facts establish that before July 2013, the
applicant did not know that he had a claim arising from his arrest
and detention.
In other words he did not know of the existence
of the debt. I can think of no reason why prescription should
commence in
his case if it could not begin to run where the debtor
wilfully prevented the creditor from coming to know of the existence
of
the debt. In both instances knowledge of the existence of
the debt would be lacking. The difference would be that in
one
instance, that lack of knowledge would have been caused by the
debtor’s wilful conduct.
[140]
In the case where section 12(2) applies, prescription does not
commence even if the debt becomes due. What prevents the
running
of prescription is the creditor’s lack of knowledge of
the existence of the debt brought about by the debtor. As I see
it, the crucial reason is the creditor’s ignorance which
prevents him or her from interrupting prescription by instituting
legal proceedings. It would be surprising if despite undisputed
ignorance, prescription would commence only because the ignorance
was
not caused by the debtor’s wilful conduct. A construction
that gives credence to this distinction would be out
of touch with
the lamentable conditions described so aptly in
Mohlomi
.
[141]
In circumstances like the present where prescription is not
triggered by the debt becoming due, its commencement may be activated
only by the creditor’s actual knowledge of the identity of the
debtor and facts from which the debt arises, if the deeming
proviso
in section 12(3) does not apply. Here that proviso is not
applicable. What needs to be determined, therefore,
is whether
the applicant had actual knowledge of the identity of the Minister as
his debtor and the facts from which the debt arose.
This is a
factual enquiry which may be determined with reference to the agreed
facts only. This is so because here we are
concerned with a
special case that must be adjudicated in terms of rule 33 of the
Uniform Rules. I return to this point later
when considering
the special case.
[142]
For now it suffices to mention that the onus to establish
those facts rests on the party that raised prescription as a
defence.
[95]
Here the Minister bore that duty.
[143]
Under section 12(3) if the proviso that deems the creditor to
have acquired the relevant facts does not apply, a debt is deemed to
be due from the time when the creditor acquires actual knowledge of
those facts. That date must be objectively determinable
so as
to enable a court to calculate and determine whether the relevant
period of prescription has expired.
[144]
By deeming that the debt is due, the section addresses the
issue of a negligent inaction by a creditor who knows the identity of
the debtor against whom a legal action may be instituted and the
facts supporting the action but fails to initiate the action without
a satisfactory excuse. It seems to me that if the presence of
the facts mentioned in section 12(3) is established, it would
constitute proof of knowledge of the existence of the debt on the
part of the creditor. For he or she cannot know of a debtor
if
he or she is not aware of the existence of the debt. Equally,
if it is proved that the creditor had no knowledge of the
existence
of a debt, it cannot in the same vein be said that he or she had
knowledge of the identity of the debtor and the facts
from which the
debt arises. It defies logic that a creditor who does not know
that a debt exists may at the same time know
of the identity of a
debtor and facts from which a debt arose.
[145]
The purpose served by section 12(3) is to prevent the
commencement of prescription being delayed by the negligent inaction
of the
creditor who faces no impediments to instituting legal
proceedings. The legitimate purpose served by provisions of a
limitation
such as section 12(3) is founded on public policy and are
underpinned by two principles. The first is the interest of the
state which requires that there should be a limit to litigation.
The second is that the law helps the vigilant and not those
who
slumber.
[96]
As mentioned, the Prescription Act protects individuals from having
to defend themselves where the facts have become obscure
with the
passage of time and preserves the quality of adjudication by
requiring that actions be instituted without undue delay.
[146]
These interests of the administration of justice must,
however, be weighed against the claimant’s interests and the
rights
entrenched by section 34 of the Constitution. Consistent
with this approach, in
Links
Zondo J pronounced:
“The
provisions of section 12 seek to strike a fair balance between, on
the one hand, the need for a cut-off point beyond
which a person who
has a claim to pursue against another may not do so after the lapse
of a certain period of time if he or she
has failed to act
diligently, and, on the other, the need to ensure fairness in those
cases in which a rigid application of prescription
legislation would
result in injustice. As already stated, in interpreting section
12(3) the injunction in section 39(2) of
the Constitution must be
borne in mind. In this matter the focus is on the right
entrenched in section 34 of the Constitution.”
[97]
[147]
If section 12(3) were to be interpreted to mean that
prescription begins to run even if the creditor is not aware of the
existence
of the debt, in circumstances where the deeming proviso
doesn’t apply, then the correct balance would not be struck
between
these competing interests. It would mean that a person
with a good claim, but through no dilatoriness or fault on his or her
part, will be prohibited from exercising his or her constitutional
rights under section 34 of the Constitution. That would
be
inimical to the principle of supremacy of the Constitution.
[148]
Therefore, in my view section 12(3) should not be read as
authorising prescription to commence running where the claimant
through
to no fault of his or hers, has successfully established that
he or she was not aware of the existence of the debt. The
effect
of holding otherwise would be denying the uneducated and poor
people in society the protection arising from constitutional rights.
Our Constitution safeguards equal rights for all individuals,
regardless of whether they are rich or poor, educated or uneducated,
and whether they live in an urban or rural area. The
aspirations and dreams the Constitution promises must be made
realisable
for everyone and the fruits of a constitutional
dispensation must reach everybody. This was the goal of the
struggle for
liberation and democracy in this country. Equal
rights and social justice for all.
[149]
Indeed section 34 of the Constitution movingly declares that
everyone has a right to have any disputes that can be resolved by the
application of law decided in a fair public hearing before a court.
These rights are not reserved for the elite and sophisticated
in
society, they are enjoyed in equal measure by everyone of us
including Mr Mtokonya who was handicapped by circumstances
that
disadvantaged black people under the previous order. The
holders of these rights include the most vulnerable groups
in
society, the poor and uneducated.
[150]
Properly construed section 12 of the Prescription Act tells us
that prescription commences to run when the debt becomes due.
But if the debtor prevents the creditor from knowing of the existence
of a debt, the clock does not start to tick even if the debt
has
become due. In circumstances where the date of becoming due is
not ascertainable, section 12(3) deems it to be the date
upon which
the creditor acquires actual knowledge of the identity of the debtor
and material facts from which the debt arose.
However, if the
creditor fails to exercise reasonable care to acquire the requisite
knowledge, he or she is deemed to have acquired
that knowledge from
the date he or she could have had knowledge of those facts.
[151]
Here we are concerned only with section 12(3) which deems the
due date to be the one on which the creditor became aware of the
identity
of the debtor and material facts from which the claim
arose. We must determine that date from the facts contained in
the statement of agreed facts. As appears below, that statement
does not even mention that the applicant acquired knowledge
of the
identity of the debtor and material facts from which the debt arose,
let alone the date of acquiring the relevant knowledge.
[152]
Accordingly, I hold that here prescription commenced to run in
July 2013 when the applicant became aware of the claim he had against
the Minister. It was only then, on the basis of the agreed
facts, that he acquired knowledge of the identity of the Minister
as
the debtor. This construction is consistent with the meaning
assigned to it by the Supreme Court of Appeal in
Van Zijl
.
[98]
Having quoted section 12(3), the Court stated that the knowledge
which is required is the minimum necessary to enable
a creditor to
institute action. If the creditor is not aware of the existence
of the debt in the first place, he or she cannot
be able to institute
an action.
[153]
In
Van Zijl,
the assaults that gave rise to the
plaintiff’s claim had occurred in 1958 and 1969 while she was a
minor. She attained
majority in 1973. But instituted her
action in August 1999. The defendant raised a plea of
prescription. As the
assaults were committed before 1969, the
Supreme Court of Appeal held that the 1943 Prescription Act applied
but pointed out that
nothing turns on this because both the 1943 and
1969 Acts have identical provisions. The trial Court had
applied the 1969 Act.
[154]
The Supreme Court of Appeal pointed out though that the
circumstances of the plaintiff placed her outside the factors that
delayed
the completion of prescription in section 7 of the 1943 Act
which is the equivalent of section 13 of the 1969 Act. Like
here,
the plaintiff in that case had established by evidence that she
only became aware that the assaults in question constituted
actionable
conduct in 1997.
[155]
In holding that prescription could commence running only in
1997, Heher JA said:
[99]
“Prescription
penalises unreasonable inaction, not inability to act. Where,
therefore, the statute speaks of prescription
beginning to run when a
wrong is ‘first brought to the knowledge of the creditor’,
it presupposes a creditor who is
capable of appreciating that a wrong
has been done to him or her by another: Compare
Wulfes v
Commercial Union Assurance Co of SA Ltd
1969 (2) SA 31
(N) at 37A
and
SA Mutual Fire and General Insurance Co Ltd v Mapipa
1973
(3) SA 603
(E) at 608F - 609D. The existence of section 7
(which suspends prescription in five specific instances) does not
detract
from this conclusion. In the first place, suspension
can only take place if the running of prescription has commenced.
Perhaps
more important is the fact that there exists a category
of creditor (the person abused as a child who has reached adulthood
before
commencing the action) who does not necessarily fall into any
of the categories of suspension and who should be accommodated within
the legislative framework if that can be achieved without doing
violence to the language. Such a person is not
non compos
mentis
. Nor is he or she incapable of rational thought.
What the evidence shows is that the process of reasoning and
the development
of insight have been distorted in the child's psyche
when it comes to an appreciation of where responsibility lies.”
[100]
[156]
On the correct interpretation of section 12(3), the trial
Court should have concluded that, with reference to the facts set out
in the agreed statement of facts, the Minister on whom the onus
rested, had failed to show that before July 2013, the applicants
had
actual knowledge of the identity of the Minister as the debtor.
Accordingly, the running of prescription could not begin
before the
applicant had acquired actual knowledge not only of the identity of
the debtor but also of the facts giving rise to
the debt.
Special case
[157]
As mentioned earlier, the trial Court’s approach to the
adjudication of the special case was irregular. Contrary to the
express terms of rule 33(3) that required the Court to base its
factual findings on the agreed facts, the Court drew inferences
from
legal submissions made by counsel. And those inferences were
vital to the conclusion that the applicant’s claim
had
prescribed.
[158]
The stated case, within the four corners of which this matter
had to be adjudicated, contains no facts that support the finding
that before July 2013, the applicant knew that the Minister was the
debtor. In fact as it appears below, the agreed facts
refute
the presence of such knowledge.
[159]
A perusal of the agreed facts in the parties’ statement
does not indicate that the applicant had actual or deemed knowledge
of the identity of the debtor. The following are the agreed
facts:
“The
plaintiff:
3.1
was arrested and thereafter detained by members of the South African
Police Services at
Engcobo Police Cells on 27 September 2010;
3.2
at the beginning of July 2013 met Mr. Nkululeko Babe, an attorney of
this Court and Plaintiff’s
neighbour, who during the course of
their interaction enquired about the outcomes of the criminal case in
respect of which the
Plaintiff had been arrested by the Police on the
27 September 2010 and who, on being informed that the Plaintiff was
never taken
to Court following his arrest but was released by the
police on the basis that when they need him, they will call on him
again
to attend and present himself at Court. Mr Babe informed
him at the beginning of July 2015 that he, the Plaintiff:
3.2.1
was not supposed to be detained in excess of a period of 48 hours
without him having been made to appear
before a Court of law:
3.2.2
was wrongfully and unlawfully:
3.2.2.1 misled by the
Police into believing that they will at some point call upon him to
attend Court simply to conceal the wrongfulness
of their conduct, but
never call him; and
3..2.2.2 arrested and
detained by the Police in circumstances where they had not reason to
believe that he had committed an offence;
3.2.3
has a cause of action against the Minister of Police for unlawful
arrest and detention;
3.3
issued a statutory notice pursuant to the provisions of section 3 of
the Institution of
Legal Proceedings Against Certain Organs of State
Act, 2002 (Act No.40 of 2002) in July 2013: and
3.4
issued and thereafter served summons against the Defendant in April
2014.”
[160]
Apart from recording facts that show that the applicant did
not know of the claim he had against the Minister until July 2013,
the
statement merely records that he was arrested and detained by
members of the Service at Engcobo Police cells on 27 September
2010. There are no facts on that statement which establish that
the applicant acquired knowledge to the effect that the Minister
was
liable for the wrongful acts of the police. At best, it can be
said that he knew about the arrest and detention by members
of the
Service. Therefore, he had knowledge of the identity of the
Minister’s co-debtors and not the identity of the
Minister.
For the Minister’s special plea to succeed, it was incumbent
upon him to prove that the applicant knew that
the Minister was the
debtor.
[101]
In
Van Zijl
the Court stated:
“Where
prescription is raised as a defence, it is the defendant who bears
the
onus
of establishing, as a matter of probability, that
prescription commenced to run and had expired before the action was
instituted,
and he or she is not relieved of that burden only because
the material facts might be within the exclusive knowledge of the
plaintiff.”
[102]
[161]
There are similarities between this matter and
Shange.
There a 15-year-old rural learner lost his eye as a result of
corporal punishment administered by a teacher. The teacher
told
him at the time that the injury was caused “by mistake”.
The incident occurred in June 2003. In January
2006, six months
before a period of three years expired from the date of the injury,
he was advised by a friend to report the incident
to the Public
Protector. An advocate from that office advised him to see an
attorney as he had a claim against the MEC for
Education. Until
then, he did not know that he had a claim. Following that
advice, he instructed attorneys who instituted
an action against the
MEC. Since six months from the date of the injury had long
passed, he had to apply for condonation.
[162]
Under the
Institution of Legal Proceedings Against Certain
Organs of State Act,
[103]
legal proceedings to recover a debt against the state must be
instituted “within six months from the date on which the debt
became due” unless condonation is granted by a court.
With regard to a debt becoming due,
section 3(3)
provides:
“For purposes
of subsection (2)(A)
(a)
a debt may not be regarded as being
due until the creditor has
knowledge of the identity of the organ of state and of the facts
giving rise to the debt, but a creditor
must be regarded as having
acquired such knowledge as soon as he or she or it could have
acquired it by exercising reasonable care,
unless the organ of state
wilfully prevented him or her or it from acquiring such knowledge.”
[163]
The Court of first instance granted condonation and the MEC
appealed to the Supreme Court of Appeal against that order. The
latter Court noted that the facts, like here, indicated that there
were two joint debtors, the teacher who assaulted the learner
whilst
acting within the course and scope of his employment and the
teacher’s employer, the MEC. In assessing whether
the
time bar in
section 3
applied, Snyders JA said:
“The
respondent’s affidavit comes closer to addressing the real
question. He states that an advocate in the office
of the
Public Protector advised him, in January 2006, to institute a civil
claim against the appellant. Unfortunately the
respondent’s
legal representatives did not appreciate the significance of this
fact. Its disclosure, evidently for
the first time, informed
the respondent of the identity of the appellant as the joint debtor
of the teacher who injured him. He
was a rural learner of whom
it could not be expected to reasonably have had the knowledge that
not only the teacher was his debtor,
but more importantly, that the
appellant was a joint debtor. Only when he was informed of this
fact did he know the identity
of the appellant as his debtor for the
purposes of the provisions of section 12(3) of the Prescription
Act.”
[104]
[164]
With regard to the running of prescription based on these
facts, the learned Judge declared:
“On the
facts, the respondent,
in consulting an advocate in the office of
the Public Protector and his attorney during January 2006,
should reasonably have
become aware, for the first time, that he had
a claim against the appellant.
If prescription commenced
running at that time it would, by 1 July 2007, when the respondent,
ex lege, achieved majority,
have already run for some eighteen
months. By reason of section 13(1) of the Prescription
Act, the respondent was entitled
to the benefit of the full relevant
period of prescription, i.e. three years, before his claim would be
extinguished.”
[105]
[165]
What emerges from this statement is that the Supreme Court of
Appeal was of the opinion that prescription did not begin to run
because
the learner had no knowledge of the identity of the MEC as
the debtor, before he consulted the advocate in January 2006.
It is apparent from
Shange
that this conclusion was based on
the Court’s interpretation of section 12(3) of the Prescription
Act, with which we are
concerned in this matter. Otherwise
prescription begins to run even against minors but its completion is
delayed by two years
which commences to run upon attainment of
majority.
[166]
It also appears from
Shange
that where the delict is
committed by public officials and the political head of a department
raises prescription as a defence,
he or she must prove that the
claimant had knowledge of him or her as the debtor, apart from the
actual wrongdoers. If a
defendant fails to prove this, the plea
of prescription cannot succeed. In a case of a special case
like the present, that
proof must be contained in the statement of
agreed facts because in those matters no evidence is led.
[167]
It must be emphasised that for the special plea to succeed,
the onus was upon the Minister to prove both elements of section
12(3)
namely, knowledge of the identity of the debtor and the
material facts from which the debt arose. And because the
parties
opted for the rule 33 procedure, these facts must have been
contained in the statement of agreed facts. It follows that the
omission of these essential facts from that statement is fatal to the
special plea. The inclusion of the fact that until
July 2013
the applicant did not know that he had a claim does not and cannot in
law relieve the Minister from the duty to prove
that the applicant
acquired knowledge of the identity of the debtor and material facts
on a date more than three years before the
action was instituted.
Nor does the assertion by the applicant alter the scope of what the
Minister should have established.
[168]
It was the Minister who invoked section 12(3) in the special
plea and the burden to prove that the requirements of that section
were met fell squarely upon him. He freely agreed that his
special plea be decided in terms of rule 33. His failure
to
show that section 12(3) was complied with cannot be blamed on the
applicant nor can any blame be laid at the door of a court
that
decides the special plea with reference to the agreed facts contained
in the statement submitted in terms of rule 33.
[169]
There can also be no question of unfairness to the Minister if
the special plea is decided on the basis of what is contained in the
statement of agreed facts. He should have seen to it that facts
showing that requirements of section 12(3) were met were
included in
that statement. But he failed to do so. He cannot be
rewarded for this failure by holding that his case
in the special
plea was narrowed down by the applicant’s disclaimer. The
special plea with which we are concerned is
the Minister’s and
not the applicant’s. If the Minister has failed to
establish facts supporting the special
plea, it must fail.
[170]
While the first judgment accepts that the agreed statement
does not say that the applicant had knowledge of the identity of the
debtor, it holds that the omission was as a result of the fact that
the applicant’s counsel in the High Court said the applicant
knew the identity of the debtor and material facts from which the
debt arose. It is recorded that this appears from the High
Court’s judgment.
[106]
I do not agree. Nowhere in its judgment does the High Court say
that the applicant’s counsel stated that the
applicant knew the
identity of the debtor and the material facts.
[171]
Instead, the judgment of the High Court shows that that court
inferred from a submission by counsel that the applicant had
knowledge
of the identity of the debtor and facts from which the debt
arose. The relevant paragraph of the High Court’s
judgment
is quoted in paragraph 9. With regard to the
submission made, the High Court said:
“That much
was submitted by Mr Bodlani,
counsel for the plaintiff when he
said that the plaintiff was not aware of his rights until he was
approached by Mr Babe with a
legal advice that the plaintiff has a
right to sue the defendant for damages
.”
[172]
As mentioned earlier, this submission cannot be construed, as
the High Court did and the first judgment here does, to mean that the
applicant knew that the Minister was the debtor and also knew the
facts from which the debt owed by the Minister arose. All
that
was submitted was that he was not aware of his rights and that he
could sue the Minister. What this submission meant
was that the
applicant lacked knowledge of what his rights were and that he could
institute a claim against the Minister.
Its text is not by law
reasonably capable of meaning that he knew that the Minister
specifically was the debtor. The Minister
could only be
exempted from establishing the facts required by section 12(3) if in
the statement of agreed facts, the applicant
had admitted those
facts. He did not and none of the contents of that statement
could be construed as an admission that he
knew identity of the
Minister as the debtor and the facts from which the debt arose.
And this submission is the sole factual
basis on which the High Court
and the first judgment relied for holding that the applicant admitted
that he knew the identity of
the debtor and facts from which the debt
in question arose. That much is clear from the statement of
agreed facts which does
not contain an admission of that kind.
If the applicant had made the admission at the time of signing the
statement, it would
have been included in that statement. It
was not and it could not because it would have contradicted a fact to
which the
parties agreed, namely that the applicant did not know that
he could sue the Minister for unlawful arrest and detention.
Therefore, the premise from which both the High Court and the first
judgment proceeded is not correct.
[173]
If the trial Court had followed the right approach to
determining a special case submitted in terms of rule 33, it could
have realised
that the Minister had not discharged the onus that
rested on him. That Court could have reached this conclusion
even if it
had construed section 12(3) literally.
Applicant’s concession
[174]
What remains for consideration is the applicant’s
statement in this Court to the effect that the issue to be determined
is
whether properly interpreted section 12(3) requires knowledge of
wrongfulness before prescription may begin to run. It cannot
be
gainsaid that this is a legal conclusion. Therefore, the
parties’ views on it do not bind this Court. If the
parties’ opinions were to be binding, courts would run the risk
of giving wrong judgments based on incorrect contentions
advanced by
the parties.
[175]
That approach was rejected in
Igesund
.
[107]
The appellant in that case had raised a legal point which was later
abandoned in the court of first instance. The same
point was
omitted in its written submissions on appeal and was not raised
during oral argument. However, counsel for the
respondent was
asked and had exchanges with the Court on the issue that was covered
by the abandoned point. Encouraged by
the exchange, counsel for
the appellant sought to revive the point in reply. In opposing
the revival, counsel for the respondent
argued that the appeal Court
had no jurisdiction to entertain the point that was abandoned,
because it no longer formed part of
the special case.
[176]
In rejecting the respondent’s argument in that case,
Jansen JA said:
“The
argument, however, overlooks the fact that the agreement contemplated
by Rule 33(1) and (2)
(a)
primarily relates to the facts
– not ‘the questions of law in dispute between the
parties and their contentions thereon’.
If e.g. the
parties were to overlook a question of law arising from the facts
agreed upon, a question fundamental to the issues
they have discerned
and stated, the Court could hardly be bound to ignore the fundamental
problem and only decide the secondary
and dependent issues actually
mentioned in the special case. This would be a fruitless
exercise, divorced from reality, and
may lead to a wrong
decision.”
[108]
[177]
It will be remembered that here the question of law mentioned
in the special case was whether the applicant’s claim had
prescribed.
That is the same question arising from the special
case on appeal. The fact that the trial Court incorrectly
reformulated
the question it was asked to decide does not change the
question raised by the special case.
[178]
The first judgment holds that:
“The question
the High Court was asked to answer was whether or not the applicant
needed to have had knowledge that the conduct
of the police against
him was wrongful and actionable before prescription could begin to
run. The applicant’s contention
was that such knowledge
was required by section 12(3) of the Prescription Act. The
respondent’s contention was
that it was not. The High
Court held in favour of the respondent.”
[109]
[179]
I disagree. This is not the question that was formulated
for decision in the stated case quoted in full in paragraph 3 of the
first judgment. Nor did the parties advance any of the
submissions recorded in the first judgment in their written
statement.
With regard to the parties’ contentions, their
joint statement states:
“THE PARTIES
CONTENTIONS
5.
The defendant contends that the plaintiff’s claim has
prescribed and the
plaintiff disputes this issue.
6.
The plaintiff contends that before his meeting with Mr Nkululeko
Babe at
the beginning of July 2013, he did not know that:
6.1
the conduct of the police in not bringing him before a court of law
within 48 hours following
his arrest on 27 September 2010
was wrongful and actionable;
6.2
at the time of his arrest the police did not have information upon
which they could have
formed a reasonable belief that he had
committed the offence for which he was arrested and thereafter
detained; and
6.3
he could sue the police.”
[180]
It is immediately apparent from these contentions that none of
the parties has submitted that the applicant needed to have had
knowledge
that the conduct of the police was actionable before
prescription could begin to run. Properly read the submissions
advanced
by the plaintiff in that statement were not directed at
showing that prescription could not have begun to run. This is
plain
from the submission at 6.2 which states that at the time of his
arrest the police had no information upon which they could have
formed a reasonable belief that he had committed an offence.
More significantly, the defendant upon whom the onus fell for
establishing that the claim had prescribed in terms of section 12(3)
merely contended that the claim had prescribed. He did
not
formulate the question to be determined by the High Court in the
manner formulated in the first judgment.
[181]
Moreover, the rejection of the submissions advanced by the
plaintiff in that statement cannot lead to upholding the special plea
as requested by the defendant. For the Minister to succeed he
had to prove the date on which the claim was deemed to have
been due
in terms of section 12(3). He could only achieve this if by
means of facts recorded in the statement, he established
that the
plaintiff had knowledge of him as the debtor and material facts from
which the debt arose, more than three years before
the summons was
issued. He has failed to do this. In
Gericke
Diemont
JA held:
“The onus was
clearly on the respondent to establish this defence. He could
not succeed if he could not prove both the
date of the inception and
the date of the completion of the period of prescription. He
accordingly alleged in his special
plea that the debt was prescribed
because the debt had become due on 13 February 1971 and summons was
issued only on 14 February
1974. However, the Act specifically
provides that prescription begins to run only when the debt becomes
due and that it is
not deemed to become due until the creditor has
knowledge both of the identity of the debtor and of the facts from
which the debt
arises. It follows that if the debtor is to
succeed in proving the date on which prescription begins to run he
must allege
and prove that the creditor had the requisite knowledge
on that date.”
[110]
[182]
The first judgment proceeds to hold that the two bases on
which I hold that the special plea should fail, “do not arise
from
the contentions of the parties contained in the rule 33
statement of the parties”.
[111]
I cannot agree. First, in paragraph 3.2.3 of that statement the
plaintiff states that he did not know that he had a
cause of action
against the Minister of Police for unlawful arrest and detention.
It is apparent from the same statement
that the Minister admitted
this fact. It will also be recalled that some authorities
construe “debt” as meaning
a claim or a cause of action.
Again in paragraph 6 of the statement, the plaintiff repeats that he
did not know that the
conduct of the police was actionable and that
he could sue. The debt we are concerned with here is the
delictual claim or
cause of action. If the applicant in this
Court did not know that it exists, there can be no factual basis on
which it could
be held that he had knowledge of who the debtor was
and the material facts from which it arose.
[183]
It would indeed be an intolerable result if a court were to be
precluded from giving the right decision on agreed facts merely
because
a party advanced an incorrect submission, as a consequence of
an error of law on the party’s part. Here the agreed
facts set out in the special case do not sustain the finding that
before July 2013, the applicant possessed knowledge that the Minister
was the co-debtor. Accordingly, it cannot be said that on a
proper evaluation of the special case, the Minister has proved
that
the applicant had knowledge of the identity of him as the debtor more
than three years before the action was instituted.
[184]
To hold that this Court may not decide the question mentioned
in the special case would also be at variance with its decision in
Kwazulu-Natal Joint Liason Committe
.
[112]
In that case the applicant had grounded its claim in contract.
The Court of first instance had held that the applicant
had failed to
prove an enforceable contract. At the hearing of the appeal in
this Court, the applicant persisted through
its senior counsel with a
claim based on contract. In deciding the matter on a claim that
was not pleaded, the majority in
this Court said:
“It is true
that this was not the clasp on which the applicant originally pegged
its hopes. The applicant relied in
its founding and subsequent
papers on what it simply and persistently described as an enforceable
undertaking to pay the entire
year’s subsidy without any
reduction. This cast the claim in contractual, or ostensibly
contractual, terms. In
my view the undertaking is indeed
enforceable, but on broader public law and regulatory grounds rather
than bilateral agreement.”
[113]
[185]
I conclude that there is no legal impediment that stands in
the way of determining the legal question on which the parties agreed
before the trial Court. For all these reasons I would uphold
the appeal, set aside the High Court’s order and replace
it
with an order dismissing the Minister’s special plea.
For the
Applicant:
N Dukada SC and A Bodlani instructed by Babe Talapile Inc.
For the Respondent:
T Ngcukaitobi, F Hobden, A Mdeyide and K Van Heerden instructed
by the State Attorney.
[1]
68 of 1969. Section 12(3) reads:
“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.”
[2]
Mtokonya v Minister of Police
[2015] ZAECMHC 67 (High Court).
[3]
Paragraph 6.2 is irrelevant to prescription and was not relied upon
by Counsel for the applicant.
[4]
Claasen v Bester
[2011] ZASCA 197
;
2012 (2) SA 404
(SCA).
[5]
Van Staden v Fourie
[1989] ZASCA 36; 1989 (3) SA 200 (A).
[6]
Minister of Finance v Gore N.O.
[2006] ZASCA 98
;
2007 (1) SA
111
(SCA) (
Gore
).
[7]
Truter v Deysel
[2006] ZASCA 16; 2006 (4) SA 168 (SCA).
[8]
See
National Union of Metalworkers of SA on behalf of Fohlisa v
Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty)
Ltd)
[2017] ZACC 9
; (2017) 38 ILJ 1560 (CC);
2017 (7) BCLR 851
(CC) at para 8;
Myathaza v Johannesburg Metropolitan Bus Services
(SOC) Ltd t/a Metrobus
[2016] ZACC 49
; (2017) 38 ILJ 527 (CC);
2017 (4) BCLR 473
(CC) at para 18;
Links v Department of Health,
Northern Province
[2016] ZACC 10
;
2016 (4) SA 414
(CC);
2016 (5)
BCLR 656
(CC) at para 22;
Road Accident Fund v Mdeyide
[2010]
ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
(CC) (
Mdeyide
)
at para 4.
[9]
Mighty Solutions t/a Orlando Service Station v Engen Petroleum
Ltd
[2015] ZACC 34
;
2016 (1) SA 621
(CC);
2016 (1) BCLR 28
(CC)
(
Mighty Solutions
).
[10]
Id at para 61-4.
[11]
See High Court judgment above n 2 at para 7.
[12]
Id at para 9.
[13]
Own transcription.
[14]
Links
above n 8 at para 39 and
Truter
above n 7 at
paras 16-9.
[15]
Media Workers Association of South Africa v Press Corporation of
South Africa Ltd. (Perskor)
[1992] ZASCA 149
;
1992 (4) SA 791
(A) (
Perskor
).
[16]
Id at 797G-H.
[17]
Fitzgerald
Salmond on Jurisprudence
12 ed (Sweet &
Maxwell, London 1966) at 65-75.
[18]
Perskor
above n 15 at 795.
[19]
Id at 795-6.
[20]
Id.
[21]
Morris “Law and Fact” (1942) 5
Harvard Law Review
1303.
[22]
Id at 1328-9.
[23]
Id at 1304.
[24]
Id at 1331.
[25]
Eskom v Bojanala Platinum District Municipality
2003 JDR 0498
(T) at para 16. This excerpt is quoted by Saner in his book:
“Prescription in SA Law” (Issue 23
3–98).
[26]
Truter
above n 7.
[27]
Id at para 20.
[28]
Gore
above n 6.
[29]
Id at para 17.
[30]
Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of
Development Planning and Local Government, Gauteng
[2009] ZASCA
25
;
2009 (3) SA 577
(SCA) (
Yellow Star Properties
).
[31]
Id at para 37.
[32]
Claasen
above n 4.
[33]
Id at para 15.
[34]
ATB Chartered Accountants (SA) v Bonfiglio
[2010] ZASCA 124
;
[2011] 2 All SA 132
(SCA) (
ATB
) at paras 14 and 18.
[35]
Fluxmans Inc v Leveson
[2016] ZASCA 183; 2017 (2) SA 520
(SCA).
[36]
Id at paras 10 and 32, 40-4.
[37]
MEC for Education, KwaZulu-Natal v Shange
[2012] ZASCA 98
;
2012 (5) SA 313
(SCA) (
Shange
).
[38]
Macleod v Kweyiya
[2013] ZASCA 28; 2013 (6) SA 1 (SCA).
[39]
40 of 2002.
[40]
Shange
above n 38 at para 11.
[41]
Id at para 10.
[42]
Macleod
above n 39 at para 7.
[43]
Id at para 9.
[44]
Id at para 15.
[45]
Links
above n 8 at para 26.
[46]
Id at para 26.
[47]
Second judgment at [88].
[48]
Paddock Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A)
(
Paddock/Igesund
).
[49]
Second judgment at [177].
[50]
Mighty Solutions
above n 9 at para 63.
[51]
Id at para 6.
[52]
Genesis Medical Scheme v Registrar of Medical Schemes
[2017]
ZACC 16
;
2017 (9) BCLR 1164
(CC) at para 169.
[53]
Mighty Solutions
above n 9 at para 63.
[54]
Id at para 62.
[55]
Id.
[56]
CUSA v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA
204
(CC);
2009 (1) BCLR 1
(CC) (
CUSA
).
[57]
Id at paras 67-8.
[58]
Paddock/Igesund
above n 48.
[59]
Id at 24A-B.
[60]
Id at 24C-D.
[61]
Id at 24D-E.
[62]
Above n 56.
[63]
Barkhuizen v Napier
[2007] ZACC 5; 2007 (5) SA 323 (CC); 2007
(7) BCLR 691 (CC).
[64]
Above n 9.
[65]
Above n 52.
[66]
Mdeyide
above n 8.
[67]
Id at para 8.
[68]
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[69]
Section 12(1) of the Constitution provides:
“Everyone
has the right to freedom and security of the person, which includes
the right
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.”
[70]
Mdeyide
above n 8 at para 8.
[71]
Section 205 of the Constitution provides:
“(1)
The national police service must be structured to function in the
national,
provincial and, where appropriate, local spheres of
government.
(2)
National legislation must establish the powers and functions of
the
police service and must enable the police service to discharge its
responsibilities effectively, taking into account the
requirements
of the provinces.
(3)
The objects of the police service are to prevent, combat and
investigate
crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold
and
enforce the law.”
[72]
Section 17
of the
Prescription Act 68 of 1969
provides:
“(1)
A court shall not of its own motion take notice of prescription.
(2)
A party to litigation who invokes prescription, shall do so in the
relevant document filed of record in the proceedings: Provided
that a court may allow prescription to be raised at any stage
of the
proceedings.”
[73]
De Jager v Absa Bank Bpk
2001 (3) SA 537 (SCA).
[74]
Section 35(1)(d) of the Constitution provides:
“Everyone
who is arrested for allegedly committing an offence has the right
(d)
to be brought before a court as soon as reasonably possible, but
not
later than
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours,
if
the 48 hours expire outside ordinary court hours or on a day which
is not an ordinary court day.”
[75]
Rule 33 provides:
“(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 in dispute between the parties and their contentions
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 behalf of each party or, where a party sues or defends
personally, by such party.
(b)
Such special case shall be set down for hearing in the manner
provided for trials or opposed applications, whichever may be more
convenient.
(c)
If a minor or person of unsound mind is a party to such proceedings
the court may, before determining the questions of law in dispute,
require proof that the statements in such special case so
far as
concerns the minor or person of unsound mind are true.”
[76]
68 of 1969.
[77]
High Court judgment at para 7.
[78]
Macleod
above n 38 at para 13.
[79]
Shange
above n 37.
[80]
High Court judgment at para 9.
[81]
Mills Litho (Pty) Ltd v Storm Quinan t/a ‘Out of the Blue’
[1987] 1 All SA 299
(C) at page 303; see also Herbstein & Van
Winsen
The Civil Practice of the High Courts of South Africa
5
ed (Juta & Co Ltd, Cape Town 2009) vol 2. The ordinary
course followed when the Court of Appeal holds that a wrong
has been
made is for the Court to make a proper order itself.
[82]
Section 39(2) of the Constitution provides:
“When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.”
[83]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 87-93;
Links above n 8
at
para 26 and
Mdeyide
above n 8 at para 10.
[84]
Mdeyide
above n 8.
[85]
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at para 14.
[86]
Mdeyide
above n 8 at para 8.
[87]
Murray & Roberts (Cape) v Upington Municipality
1984 (1)
SA 571
(A) (
Murray & Roberts
) at 578.
[88]
Section 9(1) of the Constitution provides:
“Everyone is
equal before the law and has the right to equal protection and
benefit of the law.”
[89]
Section 2 of the Constitution provides:
“This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations
imposed by it
must be fulfilled.”
[90]
Apalamah v Santam Insurance
Co Ltd
1975 (2) SA 229
(D) at 232E-F.
[91]
List v Jungers
1979 (3) SA 106
(A) at 121C-D.
[92]
Gassner N.O. v Minister of Law and Order
1995 (1) SA 322
(C)
(
Gassner
) at 326B; see also
Montsisi v Minister van
Polisie
1984 (1) SA 619 (A).
[93]
Gassner
and
Montsisi
id and
Hartman v Minister of
Police
1983 (2) SA 489 (A).
[94]
Murray & Roberts
above n 87 at 579.
[95]
See [161] below and
Links
above n 8.
[96]
Stambolie v Commissioner of Police
1990 (2) SA 369
(ZS) at
375.
[97]
Links
above n 8 at para 26.
[98]
Van Zijl v Hoogenout
[2004] ZASCA 84
;
2005 (2) SA 93
(SCA) at
para 18.
[99]
With whom Mpati DP, Cameron JA, Nugent JA and Van Heerden AJA
concurred.
[100]
Van Zijl
above n 98 at para 19.
[101]
Links
above n 8 at para 44.
[102]
Van Zijl
above n 98 at para 41.
[103]
40 of 2002.
[104]
Shange
above n 37 at para 11.
[105]
Id at para 12.
[106]
First judgment at para 35.
[107]
Paddock/Igesund
above n 48.
[108]
Id at 24A-B.
[109]
First judgment at para [65].
[110]
Gericke v Sack
1978 (1) SA 821(A)
at 827-8.
[111]
First judgment at para [69].
[112]
Kwazulu-Natal Joint Liason Committee v MEC for Education,
Kwazulu-Natal
[2013] ZACC 10; 2013 (4) SA 262 (CC).
[113]
Id at para 58.