CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 336/17
In the matter between:
ARRIE WILLEM KRUGER Applicant
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Respondent
Neutral citation: Kruger v National Director of Public Prosecutions [2018] ZACC
13
Coram: Mogoeng CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J ,
Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ
and Theron J
Judgments: Zondo DCJ (minority): [1] to [77]
Froneman J (majority): [78] to [88]
Jafta J (concurring in the minority): [89] to [111]
Theron J (concurring in the majority): [112] to [127]
Decided on: 9 April 2019
Summary: Jurisdiction — Purely factual issue does not raise jurisdiction —
No constitutional or legal issue
Prescription — Prescription Act 68 of 1969 — Section 12(3) of the
Prescription Act — Malicious Prosecution
2
ORDER
The following order is made:
1. Condonation is granted.
2. Leave to appeal is dismissed with costs.
The order is at [88].
JUDGMENT
ZONDO DCJ (Mogoeng CJ, Jafta J and Khampepe J concurring):
Introduction
The applicant is Mr Arrie Willem Kruger. The respondent is the National
Director of Public Prosecutions. The National Director of Public Prosecutions was cited
on the basis that he was vicariously liable for the conduct of the public prosecutor who
represented the State in the criminal proceedings that were brought against the applicant
in the Randburg Magistrate’s Court on 6 October 2009.
The applicant has brought an application for leave to appeal against an order of
Strydom AJ sitting in the Gauteng Division of the High Court, Pretoria.1 In terms of
that order the court dismissed the applicant’s action against the respondent for malicious
prosecution. The basis for the dismissal of the applicant’s action was that his claim had
prescribed. Both the High Court and the Su preme Court of Appeal dismissed the
applicant’s applications to those respective courts for leave to appeal.
1 Kruger v National Director of Public Prosecutions , unreported judgment of the High Court of South Africa,
Gauteng Division, Pretoria, Case No 37681/2011 (29 April 2016) (High Court judgment).
ZONDO DCJ
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Background
The applicant was arrested in Randburg on 6 October 2009 and appeared at the
Randburg Magistrate’s Court on the same day. He was not t old why he was arrested.
However, he knew that the police were investigating a complaint by one Mr Johnston
against him arising out of his conduct in collecting his m otorcycles and spare parts of
motorcycles from Mr Johnston. According to the ap plicant, he collected his
motorcycles and spare parts because, although Mr Johnston had agreed to repa ir or fix
the applicant’s motorcycles and the applicant had even paid him to do so, Mr Johnston
had failed over a certain period of time to fix or repair the motorcycles.
The applicant says that, when he appeared in court on 6 October 2009, he could
not hear what was being said in court because, in his words, “the audibility was bad”.
However, the applicant states that the public prosecutor was opposed to the appl icant
being released on bail. The applicant says that the next thing he remembers is that he
was escorted out of the court and sent to Diepkloof Prison. He spent the next seven
days at Diepkloof Prison.
The applicant’s second appearance in court was on 13 October 2009. The
applicant says that, without any explanation, all charges against him were withdrawn
on that date and he was released. On that day the applicant was represented by an
attorney and counsel in court.
The applicant subsequently instituted an action against the Police. It is not clear
from the papers before us what the basis of the action against the Police was. The
applicant says that his attorney asked the Police to make the police docket available to
them but, for a long time, the Police failed to do so. The applicant states that in August
2012 the Police were ordered by a court to make the police docket available to the
applicant or his attorneys. The applicant’s attorney received the police docket in August
2012.
ZONDO DCJ
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The applicant’s attorney discovered that inside the police docket there was a
statement by the Investigating Officer. The statement was to the effect that the
complaint related to a civil matter, the applicant would not interfere with investigations,
there was not going to be any further investigations and the applicant should be released
on bail or the public prosecutor should not oppose the granting of bail. The applicant
implies that this was part of the information that was at the disposal of the public
prosecutor when the applicant appeared before the court on 6 October 2009. It is also
implied in the applicant’s case that the Investigating Officer’s statement should have
informed the public prosecutor’s decision or conduct on that day. The applicant alleges
that the public prosecutor was required to convey this information to the court on 6
October 2009 in which event the court would probably have released him.
It is not clear what the outcome of the applicant’s action against the Police was.
However, the applic ant instituted an action in the High Court, Pretoria, against the
respondent for damages for “wrongful and malicious prosecution”. This must have
been late in 2012 or January 2013. The summons for this action was served on the
respondent on 31 January 20 13. In response, the respondent took a special plea of
prescription. The respondent alleged that the applicant’s claim had arisen on
13 October 2009 when all the charges against him were withdrawn and he was released
from police custody or prison. The r espondent contended that that is the date from
which the prescription period should be calculated. The respondent argued that, if that
was correct, it followed that, by 31 January 2013 when the summons was served, a
period of three years had lapsed. The respondent contended that, for that reason, the
applicant’s claim had prescribed.
The applicant disputed the special plea and its basis. He alleged that his claim
against the respondent for malicious prosecution had only arisen in August 2012 when
his at torney received the police docket and discovered the Investigating Officer’s
statement which the Investigating Officer had placed before the public prosecutor on
6 October 2009. He contended that, prior to August 2012, he did not have knowledge
of all fac ts from which the debt arose as contemplated in section 12(3) of the
ZONDO DCJ
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Prescription Act.2 Therefore, so went the argument, the claim had not prescribed by 31
January 2013 when the applicant served summons on the respondent.
High Court
The matter came before Strydom AJ who upheld the special plea and dismissed
the applicant’s claim with costs. His reasoning was that as at 13 October 2009 the
applicant had knowledge of all the facts he needed to have in order to institute the action
for malicious prosecution against the respondent but had failed to do so within three
years and that, therefore, the claim had prescribed. The court rejected the applicant’s
contention that, as at 13 October 2009, he did not have knowledge of all the facts he
needed to have in order to institute the action. Strydom AJ took the view in effect that
the only fact that the applicant needed to know in order to institute an action for
malicious prosecution against the respondent was that the charges against him had been
withdrawn. He said that the applicant knew all the facts on 13 October 2009 and,
therefore, that was the date from which prescription began to run.
In this Court
Jurisdiction
With regard to jurisdiction, this Court has put it beyond any doubt that matters
in which it must decide whether a claim has prescribed raise a constitutional issue.
Loudly and clearly, in Mtokonya3 this Court said:
“This Court has jurisdiction in this matter because this matter raises prescription and
prescription is a const itutional issue since it implicates the right of access to court
entrenched in section 34 of the Constitution.”4
2 68 of 1969. See [18] below for the full text of section 12(3) of the Prescription Act.
3 Mtokonya v Minister of Police [2017] ZACC 33; 2018 (5) SA 22 (CC); 2017 (11) BCLR 1443 (CC).
4 Id at para 9.
ZONDO DCJ
6
On that single sentence and that single sentence alone, this Court held in that case that
there was a constitutional issue and it had jurisdiction. That statement applies with
equal force to the present case because this case raises prescription. Therefo re, there
can be no doubt that we have jurisdiction in this case, too. Although the above statement
from Mtokonya is taken from the majority judgment, it must be regarded as having been
unanimously agreed to by all the members of this Court who sat in tha t matter because
the minority judgment did not dispute that this Court had jurisdiction for the reason
given in that statement.
I have read the judgment prepared by my Colleague, Froneman J, (second
judgment) in which he holds that this matter does not ra ise a constitutional issue and
that this Court has no jurisdiction. As can be seen from what is said above and what
follows below, I disagree with that conclusion. The second judgment states that in order
to determine whether the applicant’s claim had prescribed by the time the summons was
served on the respondent one has to ask whether the facts known to the applicant on the
day the charges were withdrawn were sufficient to ground the likely inference that there
was no reasonable and probable cause for h is prosecution and that his prosecution was
proceeded with the intention on the part of the prosecutor to injure. The second
judgment goes on to say that asking this question is a factual issue and, therefore, this
Court has no jurisdiction. I note that Theron J’s judgment is also to the effect that this
matter raises only a factual issue and therefore this Court has no jurisdiction. I deal
with this issue in the context of dealing with the second judgment.
I disagree with the proposition in the second judgment that, in order to decide
the applicant’s claim, one has to ask the question posed in the second judgment as stated
in the preceding paragraph. Formulating the question like that presupposes that the only
facts that the applicant needed to know we re those relating to whether there was a
reasonable and probable cause for his prosecution and that the prosecutor pursued his
prosecution with the intention to injure . This is not correct. The applicant needed to
know all the facts from which, as section 12(3) says, the debt arose. However, for now
ZONDO DCJ
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I need to deal with the proposition in the second judgment that this matter raises a factual
issue and that, therefore, this Court has no jurisdiction.
The case before this Court in Links5 was about whether the High Court had been
correct in concluding that the applicant’s claim in that case had prescribed. The present
case is also about whether the High Court was correct in concluding that the applicant’s
claim had prescribed by the time that the applicant served summons on the respondent.
To determine that issue, this Court is required to interpret section 12(3) of the
Prescription Act which limits the applicant’s right in terms of section 34 of the
Constitution. Dealing with the question whether it had jurisdiction in Links, this Court
had this to say:
“This Court has jurisdiction because the matter involves an interpretation of legislation
that limits the applicant's right in terms of section 34 of the Constitution. That is the
Prescription Act. The m eaning that the court a quo attached to section 12(3) of the
Prescription Act had the effect of preventing the dispute between the applicant and the
respondent from being resolved by a court of law. The applicant challenges the
correctness of that meaning. The provisions of section 39(2) of the Constitution should
be borne in mind. Section 39(2) reads:
‘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.’
The case also implicates the right to security of the person entrenched in section 12 of
the Constitution.”6 (Footnotes omitted).
5 Links v Department of Health, Northern Province [2016] ZACC 10; 2016 (4) SA 414 (CC); 2016 (5) BCLR 656
(CC) (Links).
6 Id at para 22.
ZONDO DCJ
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What is the legislation to which reference was made in Links as legislation that limited
the applicant’s section 34 right in that case? That legislation was the Prescription Act.
The present case also deals with the same legislation.
Does this matter involve an interpretation of legislation that limits the applicant’s
right in terms of section 34 of the Constitution as was the case in Links? If the answer
is that, indeed, this matter does involve an interpretation of legislation that limits the
applicant’s right in terms of section 34 of the Constitution, this will mean that this Court
has jurisdiction in this matter just as it held in Links that it had jurisdiction. This will
be because that answer will mean that the reason given in Links for the conclusion that
this Court had jurisdiction in that matter is also present in this case. Ho wever, if the
answer is that this matter does not involve an interpretation of such legislation, that will
not necessarily mean that this Court has no jurisdiction because, as pointed out earlier,
on the basis of this Court’s decision in Mtokonya, this Cou rt would still have
jurisdiction. Not only that, but also this Court would still have jurisdic tion because of
another basis.
In Links the case implicated not only the right entrenched in section 34 of the
Constitution. This Court held that the case also implicated the right to freedom of
security of person entrenched in section 12 of the Constitution. That was an additional
basis upon which this Court held in Links that it had jurisdiction. This matter implicates
the right to freedom of movement as entrenched in section 21 (1) of the Constitution
since the applicant was kept in prison for seven days .7 A conclusion that this matter
involves an interpretation of legislation limiting the section 34 right should also show
that the proposition that this m atter is simply about a question of fact or concerns a
factual issue and not a legal issue has no proper basis. This raises the question of what
a question of law is as opposed to a question of fact. What is a question of law as
opposed to a question of fact? In Mtokonya this Court considered the distinction
7 Section 21(1) of the Constitution reads:
“Everyone has the right to freedom of movement”.
ZONDO DCJ
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between a question of law and a question of fact. It cited with apparent approval a
passage from Salmond on Jurisprudence which included, among others, the following
definition of what a question of law is: “In a second and different signification, a
question of law is a question as to what the law is”.8
What this Court said in regard to what a question of law is as quoted in the
preceding paragraph means that, if the present case involves asking wh at the law is, it
raises a question of law. In line with what this Court also said in Links, if the matter
involves an interpretation of legislation limiting a section 34 right, that matter raises a
constitutional issue. Does this matter involve asking the question as to what the law is?
The answer is: definitely yes. Does this matter involve the interpretation of legislation
limiting a section 34 right? The answer is: definitely yes. Here is how.
Section 12(3) of the Prescription Act provides that a debt is not deemed due
“until the creditor has knowledge . . . of the facts from which the debt arises”. What
this means is that, as long as the creditor does not “have knowledge . . . of the facts from
which the debt arises”, the debt is not deemed to be due and, therefore, prescription does
not start running.9
The facts from which a debt arises will differ from claim to claim or from debt
to debt. The facts from which a debt arises in the case of, f or example, a claim for
defamation and the facts from which a debt arises in the case of a claim for wrongful or
unlawful dismissal will differ. Indeed, the facts from which a claim or “debt” for
malicious prosecution arises will be different from the facts from which another type of
claim or debt arises. The facts from which a debt arises will depend on what the
elements or requirements of that debt or claim are.
8 Mtokonya above n 3 at para 39.
9 That is if the situation is not one where, by the exercise of reasonable care, the creditor could have acquired
knowledge of those facts which is not the case in the present case.
ZONDO DCJ
10
In the present case there are two questions for determination in the appeal. The
first question is: what facts does section 12(3) of the Prescription Act require a creditor
or a person to know before prescription may commence running against his or her claim
for malicious prosecution? Put differently, the question is: what is the law on what a
person must know before prescription may start running against his or her claim for
malicious prosecution? The second question is whether the applicant had had
knowledge of all those facts for over three years by the time he served summons on the
respondent? The first question is certainly a legal question and has to be determined
first before the second one can be determined.
One may also put the question we are called upon to determine in this case in
these terms: does section 12(3) of the Prescription Act require the creditor to know the
facts on the basis of which he or she will have to allege bad faith on the part of the
defendant in an action for malicious pr osecution before prescription may start running
against such a claim? This formulation is informed by the fact that bad faith on the
defendant’s part or consciousness by the defendant that there were no reasonable
prospects of successfully prosecuting the plaintiff is an element of the delict of
malicious prosecution as will be seen in Moleko10 below. A question that asks what a
statutory provision requires is a legal question. It is a question that seeks to establish
what the law is according to that statutory provision. In Mtokonya this Court said such
a question is a question of law. As can be seen from this judgment, I hold that section
12(3) does require knowledge of such facts on the part of a creditor before prescription
may start running against a claim for malicious prosecution . The second judgment
holds in effect that section 12(3) does not require knowledge of such facts . That is a
question of law, not a question of fact.
To answer the question as to what facts section 12(3) requires a creditor to know
in the context of a claim for malicious prosecution before the debt may be deemed to
be due or before prescription may start running against such claim, one requires us to
10 See [48] below.
ZONDO DCJ
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interpret the phrase “knowledge . . . of the facts from which the debt a rises” which
appears in section 12(3). In other words, to answer that question, one needs to
determine the meaning of that phrase in the context of a claim for malicious prosecution.
In the passage quoted above from Links, it is said that in Links the meaning that the
court a quo had attached to section 12(3) of the Prescription Act “had the effect of
preventing the dispute between the applicant and the respondent from being resolved
by a court of law”.11 As was the case in Links, the meaning that the High Court attached
to section 12(3) in the present case, namely that all that the applicant had to know was
that the charges against him had been withdrawn, “had the effect of preventing the
dispute between the applicant and the respondent from being resolve d by a court of
law”.
In Links, as shown above, this Court held that the fact that the applicant was
challenging the meaning attached by the High Court to section 21(3) rendered the matter
one involving an interpretation of section 12(3) and, thus, legisl ation limiting the
applicant’s section 34 right. In the present case, too , the applicant challenges the
correctness of the meaning given to section 12(3) by the High Court. In the present
case the High Court held in effect that the only fact that section 12(3) requires a creditor
to know before a claim or debt relating to malicious prosecution could be deemed to be
due is that that charges had been withdrawn. The applicant contends that that meaning
of section 12(3) is incorrect as section 12(3) requires the creditor to know more facts
than that.
If in Links the fact that the applicant was challenging the correctness of the
meaning that the High Court had attached to section 12(3) of the Prescription Act meant
that that case involved an interpretation of legislation limiting a section 34 right and
constituted a constitutional issue, it follows that this matter, too, involves an
interpretation of such legislation. This is because there is no reason why, in the present
case, a different conclusion could be reached. Therefore, holding that this matter
11 Links above n 5 at para 22.
ZONDO DCJ
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involves an interpretation of legislation limiting a section 34 right gives effect to this
Court’s decision in Links and means that the matter raises a constitutional issue.
Therefore, not only does this Court have jurisdiction in this matter on the basis of its
approach in Mtokonya but it also has jurisdiction on the basis of its decision in Links.
The second judgment says that it is not in conflict with Mtokonya because neither
Mtokonya nor the cases upon which Mtokonya relied involved the mere settling of a
factual dispute. Mtokonya made it clear that a matter that raises prescription is a
constitutional matter. That was st ated in unqualified terms as the paragraph I have
quoted above from this Court’s judgment in Mtokonya shows. Quite clearly, this matter
raises prescription. The second judgment acknowledges that this Court has jurisdiction
in a matter involving an interp retation of legislation that limits the applicant’s right in
terms of section 34 of the Constitution but says that the present case does not involve
an interpretation of section 12(3) of the Prescription Act. In my view, I have shown
above that this matter raises prescription and that it involves an interpretation of section
12(3) and, therefore, does not raise simply a factual issue.
In the light of the above, if a question as to what a statutory provision requires is
not a question involving an interpretation of a statutory provision, then it would be very
difficult to find a question that involves an interpretation of legislation.
Irrespective of what I have said above in regard to this matter being one that
raises prescription and being a matter that involves an interpretation of legislation that
limits a section 34 right, there are two other bases which give this Court jurisdiction in
this matter. I deal with these separately below.
The matter implicates the applicant’s right in section 21 (1) of the
Constitution
In the present case it could be said that the case implicates the applicant’s right
to freedom of movement entrenched in section 21(1) of the Constitution. Section 21(1)
reads: “Everyone has the right to freedom of movement”. In Mtokonya, apart from
ZONDO DCJ
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relying on the proposition that that matter involved an interpretation of legislation
limiting the applicant’s section 34 right to conclude that it had jurisdiction, this Court
also relied on the proposition that that matter implicated the right to security of the
person in section 12 of the Constitution. As can be seen in the last sentence of the
passage I quoted above from Links on jurisdiction, this Court put it in these terms: “The
case also implicates the right to security of the person entr enched in section 12 of the
Constitution”.
This Court reached the above conclusion in Links because in that case the
applicant’s case was based on the fact that the applicant alleged that the hospital
authorities were delictually liable for amputating his left thumb and causing him a
permanent loss of the use of his left hand or arm. If that was a sufficient basis in Links
for this Court to conclude that the case implicated the right to security of the person
entrenched in section 12 and that, for that reason, this Court had jurisdiction, this Court
also has jurisdiction in this case on the basis that this matter implicates the applicant’s
right to freedom of movement as entrenched in section 21. This is because the basis for
this claim is that for seven days the applicant was imprisoned as a result of malicious
prosecution and the claim with which we are concerned in the present case is a claim
for damages for that incarceration. When this Court holds that a mat ter implicates a
certain right in the Bill of Rights, it concludes that it has jurisdiction. 12 Therefore, on
this basis, too, this Court has jurisdiction.
Furthermore, in making its decision the High Court also ordered the applicant to
pay the respondent’ s costs. This is contrary to the approach that this Court held in
Biowatch13 should be applied in constitutional litigation. Whether or not the Biowatch
approach to costs applies in any particular case is a constitutional issue. Indeed, there
are a number of cases in which this Court has entertained appeals on the basis that the
12 See Hotz v University of Cape Town [2017] ZACC 10; 2018 (1) SA 369 (CC); BCLR 815 (CC) and Ferguson
v Rhodes University [2017] ZACC 39; 2017 JDR 1768 (CC); 2018 (1) BCLR 1 (CC).
13 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) (Biowatch).
ZONDO DCJ
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lower court did not apply the Biowatch approach in regard to costs. 14 Therefore, for
this reason, too, this Court has jurisdiction.
Condonation for the late delivery of the application
The applicant was 34 court days late in lodging his application for leave to appeal
with the Registrar of this Court. He has applied for condonation. His explanation
includes that he was hospitalised in a psychiatric ward for part of the time whe n he
would have been expected to prepare and lodge his application. The applicant also
pointed out that he was going through a divorce. He also pointed out that at some stage
his counsel was not available and to get another counsel would have been too expensive.
He accordingly applied for condonation.
The respondent opposed the applicant’s condonation and disputed that the
applicant had been hospitalised and suggested that, if that was true, the applicant should
have attached documentary proof of his ho spitalisation. The delay was not excessive
as it was a few court days over a month. The applicant’s explanation is not adequate
but the matter is very important to the applicant and to many people who may wish to
have certainty as to what they need to kn ow in terms of th e facts contemplated in
section 12(3) before prescription may begin to run against their claims for malicious
prosecution. For the reasons that will become apparent below, the applicant has
reasonable prospects of success. There would be no prejudice to the respondent if
condonation were to be granted and yet, if condonation were refused, the applicant
would suffer serious prejudice as he would be prevented from having his dispute
adjudicated by a court of law. In my view, it is in the i nterests of justice that
condonation be granted. In these circumstances, I would condone the applicant’s failure
to lodge his application timeously.
14 Limpopo Legal Solution s v Eskom Holding SOC Limited [2017] ZACC 34; 2017 (12) BCLR 1497 (CC);
Limpopo Legal Solutions v Vhembe District Municipality [2017] ZACC 30; 2017 JDR 1363 (CC); 2018 (4) BCLR
430 (CC); Limpopo Legal Solutions v Vhembe District Municipality [2017] ZACC 14; 2017 (9) BCLR 1216 (CC).
ZONDO DCJ
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Leave to appeal
This matter involves the interpretation of section 12(3) of the Prescription Act in
relation to a claim for malicious prosecution. It raises the question of what the facts are
that a person must have knowledge of in regard to a claim for malicious prosecution
before it can be said that the debt is deemed to be due within the meaning of
section 12(3) of the Prescription Act or before prescription can start to run against such
a debt or claim. The issue raised by this matter is of great importance. As already stated
in relation to condonation, there are reasonable prospects of success for the applicant.
Accordingly, it is in the interests of justice to grant leave to appeal. Leave is,
accordingly, granted.
The appeal
The issue in this appeal is whether the High Court was correct in its decision that
the applicant’s claim for malicious prosec ution against the respondent had prescribed
by 31 January 2013 when he served summons on the respondent. In the High Court the
respondent contended, in support of the special plea, that the only fact that the applicant
had to know that fell under section 12(3) of the Prescription Act was that the criminal
charges against him had been withdrawn. In other words, the respondent’s special plea
was based on the contention that, when all the charges against the applicant were
withdrawn on 13 October 2009, he kn ew all the facts that he needed to know in order
to institute an action for malicious prosecution against the respondent. The applicant
disputed this and contended that it was not only the fact that the charges against him
had been withdrawn that he needed to know in order to be able to institute an action for
malicious prosecution against the respondent. The applicant contended that he needed
to know more than that. He pointed out that it was only after his attorney had received
the police docket in August 2012 that he acquired knowledge of all the facts from which
his debt arose.
Whether the High Court was right in concluding that the applicant’s claim
against the respondent for malicious prosecution had prescribed depends upon whether
ZONDO DCJ
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as at 13 October 2009 – that is before the applicant gained knowledge of the contents
of the police docket – he had knowledge of all the facts that he needed to have
knowledge of in order to institute an action for malicious prosecution against the
respondent. The person raising prescription bears the onus to show that the claimant
had knowledge of all the facts from which the claim arose before prescription can begin
to run.
What facts a person must know before prescription may start running against his
or her claim for malicious prosecution is governed by section 12(3) of the Prescription
Act. Section 12(1) provides a general rule as to when prescription begins to run. It
provides that, subject to the provisions of subsections (2), (3) and (4), prescription
commences to run as soon as the debt is due. Section 12(2) and (3) reads then:
“(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 debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the
identity and of the facts from which the debt arises : provided that a creditor
shall be deemed to have knowledge if he could have acquired it by exercising
reasonable care.”
The proviso in section 12(3) is not applicable in the present case because the respondent
conceded in the High Court that the applicant had taken reasonable steps to acquire the
necessary knowledge. Subsection (4) is also not relevant to the present case.
The facts of which a creditor is required to have knowledge in terms of
section 12(3) in order for a debt to be deemed to be due are, as section 12(3) states, “the
facts from which the debt arises”. In McKenzie15 the Appellate Division had to consider
the meaning of the phrase “if the cause of action arose wholly within the district”.
Although that phrase is not the same as the phrase “the facts from which the debt arises”
15 McKenzie v Farmers’ Co-operation Meat Industry Ltd 1922 AD 16.
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with which we are dealing in the present case, both phrases, the one in McKenzie and
the other in section 12(3), use the same verb, albeit in different tenses. The verb is to
“arise”. In McKenzie the tense used is the past tense, namely, “arose” whereas in section
12(3) the tense used is the present tense, namely, “arises”.
In considering the phrase involved in McKenzie, the Appellate Division defined
“cause of action arising” as:
“. . . every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his ri ght to the judgment of the Court. It does not comprise every
piece of evidence which is necessary to prove each fact, but every fact which is
necessary to be proved.”16
The debt in the context of the present case is the applicant’s claim for malicious
prosecution against the respondent. This Court had occasion in Links to refer to some
of the decisions of the Supreme Court of Appeal which have interpreted section 12(3)
of the Prescription Act in so far as they relate to the phrase “debt due”. I refer to some
of those cases below. In Links this Court said:
“The first issue is what the facts are from which a debt arises. Obviously, these are
facts that are material to the debt.”17
In Truter18 the Supreme Court of Appeal dealt with the meaning of the phras e
“debt due”. It said:
“For the purposes of the Act, the term ‘debt due’ means a debt, including a delictual
debt, which is owing and payable. A debt is due in this sense when the creditor acquires
a complete cause of action for the recovery of the debt , that is, when the entire set of
facts which the creditor must prove in order to succeed with his or her claim against
16 Id at 23.
17 Links above n 5 at para 30.
18 Truter v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA).
ZONDO DCJ
18
the debtor is in place or, in other words, when everything has happened which would
entitle the creditor to institute action and to pursue his or her claim.”19
In Links this Court quoted this passage from Loubser:20
“A cause of action means the combination of facts that are material for the plaintiff to
prove in order to succeed with his action. Such facts must enable a court to arrive at
certain legal conclusions regarding unlawfulness and fault, the constituent elements of
a delictual cause of action being a combination of factual and legal conclusions, namely
a causative act, harm, unlawfulness and culpability or fault.”21
In Deloitte22 the Supreme Court of Appeal had the following to say about the
phrase “debt due” in section 12(1) of the Prescription Act:
“This means that there has to be a debt immediately claimable by the [creditor] or,
stated in another way, that there has to be a debt in respect of which the debtor is under
an obligation to perform immediately. . . . It follows that prescription cannot begin to
run against a creditor before his cause of action is fully accrued, i.e. before he is able
to pursue his claim. . . ”23
In Gore24 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.”25
19 Id at para 16.
20 Loubser, Extinctive Prescription (Juta, Kenwyn 1996) at 80.
21 Links above n 5 at para 32.
22 Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd [1990] ZASCA 136;
1991 (1) SA 525 (A) (Deloitte).
23 Id at 532H-I.
24 Minister of Finance v Gore N.O. [2006] ZASCA 98; 2007 (1) SA 111 (SCA) (Gore).
25 Id at para 17.
ZONDO DCJ
19
What facts does section 12(3) require a plai ntiff to know in the case of a claim
for malicious prosecution?
In Links this Court was faced with the same question with which we are faced in
the present case except that the present case relates to a claim for malicious prosecution
whereas in Links the claim did not relate to a claim for malicious prosecution. Both
cases relate to prescription. In both cases the same statutory provision had to be
considered and interpreted, namely, section 12(3) of the Prescription Act. In Links the
question was whether Mr Links had acquired knowledge of all the facts from which the
debt had arisen as contemplated in section 12(3) when he served summons on the
respondent. Of course, the question that follows is what are those facts in the case of a
claim for malicious prosecution? In the present case we are required to determine
precisely the same question except that the applicant is Mr Kruger and not Mr Links
and the claim is one for malicious prosecution.
In Links this Court asked the question as to what the facts are from which a debt
arises. That is another way of asking the question what the facts are of which a plaintiff
or claimant must have knowledge under section 12(3) before it can be said that the debt
is due. Put differently, what are the facts from whi ch a debt arises? As can be seen in
paragraph 39 above, in Links this Court answered that question in these terms:
“The first issue is what the facts are from which a debt arises. Obviously, these are the
facts that are material to the debt.”
Therefore, in Links this Court made it clear that the phrase “the facts from which the
debt arises” which appears in section 12(3) means “the fact s that are material to the
debt”. Accordingly, when the question arises as to what the facts are that a plaintiff or
claimant must have known before a debt may be said to be due in terms of section 12(3)
in regard to a claim for malicious prosecution or before prescription may start running
against a claim for malicious prosecution, the answer provided by this Court’s decision
in Links is: those facts that are material to a claim for malicious prosecution.
ZONDO DCJ
20
In my view, when this Court held in Links that the facts from which a debt arises
as contemplated in section 12(3) are the facts material to the debt, it meant material
facts giving rise to the debt. In other words, those are the facts without which it cannot
be said that a debt has arisen. Those are the facts of which section 12(3) says the creditor
must have knowledge of before the debt can be said to be due or befor e prescription
may start running. Those are the facts material to a debt as contemplated in Links.
In Mtokonya this Court also dealt with the question of what facts fall within the
phrase “the facts from which the debt arises” which appears in section 12(3). In one
place this Court said:
“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.”26
Later, in the same judgment, this Court held:
“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.”27
What are the facts that are material to a claim for malicious prosecution? To
establish those facts, we must have regard to what must be alleged and proved in an
action for malicious prosecution in order for a plaintiff or claimant to succeed.
In Moleko28 the Supreme Court of Appeal set out the elements or requirements
for an action for malicious prosecution in these terms—
“In order to succeed (on the merits) with a claim for malicious prosecution, a claimant
must allege and prove—
26 Mtokonya above n 3 at para 36.
27 Id at para 45.
28 Minister for Justice and Constitutional Development v Moleko [2008] ZASCA 43; 2009 (2) SACR 585 (SCA)
(Moleko).
ZONDO DCJ
21
(a) that the defendants set the law in motion (instigated or instituted the
proceedings);
(b) that the defendants acted without reasonable and probable cause;
(c) that the defendants acted with ‘malice’ (or animo injuriandi); and
(d) that the prosecution has failed.”29
In the balance of this judgment I shall refer to each of these elements or requirements
as the element or requirement in (a) or (b) or (c) or (d), as the case may be.
The requirements in (a) and (d)
The requirements in (a) and (d) need not detain us because they are not in issue.
The requirement in (b)
This is the requirement that the defendant must have acted with “reasonable and
probable cause”. In Moleko the Supreme Court of Appeal explained this requirement
or element in these terms:
“Reasonable and probable cause, in the context of a claim for malicious prosecution,
means an honest belief founded on reasonable grounds that the institution of
proceedings is justified. The concept therefore involves both a subj ective and an
objective element—
‘Not only must the defendant have subjectively had an honest belief in
the guilt of the plaintiff, but his belief and conduct must have been
objectively reasonable, as would have been exercised by a per son
using ordinary care and prudence.’”30
It is, therefore, clear, from Moleko that, in an action for malicious prosecution, the
plaintiff must, among others, allege and prove that the defendant did not only
29 Id at para 8.
30 Id at para 20.
ZONDO DCJ
22
subjectively have an honest belief in the guilt of the plaintiff but that also his or her
belief and conduct must have been objectively reasonable.
The judgment of the court below does not reflect that the respondent showed
what facts the applicant had knowledge of that would have shown that the respon dent
did not subjectively believe in the guilt of the applicant. Instead, the Investigating
Officer’s statement in the police docket reflects that the complaint related to a civil
matter, that there was to be no further investigation and that the public prosecutor should
not oppose bail. These facts tend to show that, in the absence of other facts, the
respondent might not have acted with any honest belief in the guilt of the applicant. The
respondent’s failure to show that the applicant knew facts which would demonstrate
that the respondent had acted without such honest belief in the guilt of the applicant
means that the respondent did not show that the applicant had knowledge of all the facts
from which the debt arose as contemplated by section 12(3) of the Prescription Act.
This means that the debt was not shown to have been due by 31 January 2013. For this
reason alone, the Court below should not have upheld the special plea.
The requirement in (c)
There is also the requirement that the defendant mu st have acted with “malice”
(or animo injuriandi). In Moleko the Supreme Court of Appeal said:
“[61] In the Relyant case, this court stated the following in regard to the third
requirement:
‘Although the expression malice is used, it means, in the context of the
actio iniuriarum, animus iniuriandi . In Moaki v Reckitt & Colman
(Africa) Ltd Wessels JA said:
‘Where relief is claimed by this actio the plaintiff
must allege and prove that the defendant intended to
injure (either dolus directus or indirectus). Save to
the extent that it might afford evidence of the
defendant’s true intention or might possibly be taken
into account in fixing the quantum of damages, the
ZONDO DCJ
23
motive of the defendant is not of any legal
relevance.’’
[62] In so doing, the court decided the issue which it had left open in Lederman v
Moharal Investments (Pty) Ltd and again in Prinsloo v Newman, namely that animus
injuriandi, and not malice, must be proved before the defendant can be held liable for
malicious prosecution as injuria.
[63] Animus injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness:
‘In this regard animus injuriandi (intention) means that the defendant
directed his will to prosecuting the plaintiff (and thus infringing his
personality), in the awareness that reasonable grounds for the
prosecution were (possibly) absent, in other words, that his conduct
was (possibly) wrongful (consciousness of wrongfulness). It follows
from this that the defendant will go free where reasonable grounds for
the prosecution were lacking, but the defendant honestly believed that
the plaintiff was guilty. In such a case the second element of dolus,
namely of consciousness of wrongfulness, and therefore animus
injuriandi, will be lacking. His mistake therefore excludes the
existence of animus injuriandi.’”31 (Footnotes omitted.)
It is clear from the passage quoted in paragraph 63 in Moleko that the “animus
injuriandi” requirement entails that in an action for malicious prosecution the plaintiff
must allege and prove that the defendant acted “in the awareness that reasonable
grounds for prosecution were absent”. In terms of that passage the plaintiff must allege
and prove this because, as is stated in the passage, “the defendant will go free where
reasonable grounds for the prosecution were lacking but the defendant honestly believed
that the plaintiff was guilty”.
The judgment of the High Court reflects that the respondent’s case on
prescription was simply that in order for the applicant to institute legal action all he
needed to know in terms of the facts from which the debt arose was that the criminal
31 Id at paras 61-3.
ZONDO DCJ
24
charges against him had been withdra wn. It said that the applicant knew this on
13 October 2009 and that, therefore, the prescription period should be calculated from
that date. The High Court put it thus:
“The following issue to consider is whether the Plaintiff (Mr Kruger) had actual or
deemed knowledge of ‘the facts from which the debt arises ’ as required by
section 12(3) of the [Prescription] Act, on 13 October 2009.
The only fact necessary to have been within the knowledge of the Plaintiff in order for
him to have been able to institu te this action against the Defendant, as pleaded by the
Plaintiff was the fact that the charges against him [were] withdrawn by the
Defendant.”32
The High Court went on to state that the mere withdrawal of criminal charges
against the applicant meant that the applicant could have gone ahead and instituted
action for malicious prosecution against the respondent. It said that the withdrawal of
charges “signifies that there is no reasonable prospect of a successful prosecution of the
accused by the State”.33 Later on, Strydom AJ said:
“I am of the view, with reference to the aforesaid considerations, that on
13 October 2009 Plaintiff knew or ought to have known that, since the Defendant
withdrew all charges against him, the Defendant did not have any reasonable prospects
to prosecute him successfully. This is sufficient facts to sustain a cause of action for
‘wrongful and malicious proceedings, instigated against the Plaintiff by [prosecutors],
prosecuting the matter whilst acting in the course and scope of their employment with
Defendant’.”34
In adopting the approach captured in this passage, the High Court dealt with the
matter as if the requirement in (c) above did not entail that the person must have been
aware that there were no reasonable grounds for a successful prosecution of the accused
or plaintiff. In other words, the approach adopted by the High Court in holding that all
32 High Court judgment above n 1 at paras 34-34.1.
33 Id at para 34.2.
34 Id at para 35.
ZONDO DCJ
25
the applicant needed to know in order to be able to institute an action for malicious
prosecution against the respondent was simply that all the charges had been withdrawn
only took into account the objective element referred to in Moleko as quoted in
paragraph 50 above and completely disregards the subjective element referred to in
Moleko as quoted in paragraph 50 above.
The same criticism against the approach of the High Court can be advanced on
the basis of what the Supreme Court of Appeal said in paragraph 63 of its judgment in
Moleko regarding animus iniuriandi as quoted in paragraph 52 above. It is quite clear
from paragraph 63 in Moleko that the Supreme Court of Appeal said that one of the
features of the element of animus iniuriandi in this context is a subjective feature. That
feature is to the effect that, in order for the plaintiff to succeed in an action for malicious
prosecution, he or she must allege and prove that the case is not one in which “the
defendant honestly believed that the plaintiff was guilty”. This means that the Supreme
Court of Appeal held that the plaintiff must allege and prove that the defendant di d not
act in good faith or that he or she acted in bad faith (mala fide).
Although the Supreme Court of Appeal did not in Moleko refer to section 42 of
the National Prosecuting Authority Act35 when it held that the plaintiff must allege and
prove that the defendant did not honestly believe that the accused or plaintiff was guilty,
it in effect held what section 42 of that Act lays down. Section 42 provides:
“No person shall be liable in respect of anything done in good faith under this Act.”
The referenc e to “no person” includes a public prosecutor and the National
Director of Public Prosecutions. Therefore, a plaintiff must allege in his or her
summons that the defendant did not act in good faith or, put differently, that the
defendant acted in bad faith. If that allegation is not made in the summons or particulars
35 32 of 1998.
ZONDO DCJ
26
of claim, the plaintiff’s action will be excipiable on the basis that it does not disclose a
cause of action.
Before a plaintiff may allege in a summons that the defendant did not act in good
faith or that the defendant acted in bad faith in instituting or pursuing prosecution, he
or she must have knowledge of facts on which that allegation is based. He or she may
not simply make an allegation in a summons or in particulars of claim which, t o his or
her knowledge, is not based on any facts in the hope that, by the time of the trial, he or
she will have acquired knowledge of such facts. One should not accuse someone of
acting in bad faith unless one knows what facts or information was known to that person
or was at that person’s disposal at the time of acting and, whether, given that knowledge
or information, he or she can be said or alleged to have acted in bad faith or not to have
acted in good faith.
In the present case there is no suggestion that the prosecutor got any information
from the applicant when the latter appeared in Court on 6 October 2009 nor is there any
allegation that the applicant and the prosecutor spoke to each other. There is also no
suggestion that any correspondence was ever exchanged between the applicant or his
lawyers and the respondent or the public prosecutor concerned from which the applicant
could have acquired knowledge of the facts that were known to the public prosecutor
as at 6 October 2009. The public prosecutor may have said something which, on the
applicant’s version, the applicant could not hear because of the noise in court. In these
circumstances, seeking the information that was known or must have been known to the
public prosecutor as at 6 October 2009 in the police docket was one of the ways the
applicant could use to ascertain what the public prosecutor knew or what information
was at the public prosecutor’s disposal on 6 October 2009.
This judgment does not mean that a person may not institute an action for
malicious prosecution unless he or she first asks for and obtains the police docket. What
it says is this: since, in an action for malicious prosecution, the plaintiff must allege that
the defendant acted in bad faith in instituting or pursuing criminal proceedings against
ZONDO DCJ
27
him or her, the plaintiff must know facts which were known to the defendant at the time
of instituting or pursuing such criminal proceedings which would form the basis for that
allegation. If the applicant in the present case had taken the attitude that, because his
version revealed that there were no reasonable prospects for his successful prosecution,
that was enough and had gone ahead and instituted an action for malicious prosecution,
he would either not have been able to allege bad faith on the respondent’s part or he
would have alleged bad faith on the respondent’s part without any knowledge of facts
supporting that allegation.
If the applicant had instituted an action for maliciou s prosecution against the
respondent without alleging bad faith, his summons would have been excipiable. If he
alleged bad faith on the part of the public prosecutor without knowledge of any facts
supporting that allegation, his action would have failed. The public prosecutor could
also have put up a defence to the effect that he or she had acted in good faith. In support
thereof, the public prosecutor could have shown that the police do cket before him or
her as at 6 October 2009 contained a statement by the complainant that the spare parts
that the applicant had taken from him belonged to him (i.e. the complainant). That
would have meant that the applicant may well have been guilty of theft. This would
have meant that the public prosecutor had acted in good faith. The above would have
been the consequences of the applicant either instituting an action for malicious
prosecution without alleging that the public prosecutor had acted in bad faith or of
instituting an action for malicious prosecution and all eging bad faith on the part of the
public prosecutor without facts to support that allegation.
The High Court rejected the applicant’s contention that he acquired knowledge
of all the facts from which the debt arose only in August 2012 after his attorney had
received the police docket and he got to know the contents thereof. The High Court did
so without considering the contents of the police docket. However, the reason why the
High Court did this is that it had already taken the view that the only fact that the
applicant needed to know in order to institute action for malicious prosecution against
the respondent was that the charges against him had been withdrawn.
ZONDO DCJ
28
Was the High Court correct in deciding that the only fact falling under
section 12(3) (oth er than the identity of the debtor) of the Prescription Act that the
applicant needed to know in order to be able to institute an action for malicious
prosecution against the respondent was that the criminal charges against him had been
withdrawn? If the High Court was correct, the effect of its decision would be that every
accused person against whom a criminal charge is withdrawn is entitled to institute an
action for malicious prosecution against the public prosecutor or the National Director
of Public Prosecutions. That cannot be correct. One needs more than the fact that a
criminal charge has been withdrawn before one may institute an action for malicious
prosecution. In Moleko four elements were identified as the elements that need to be
alleged and proved in an action for malicious prosecution. Those elements include facts
and a person seeking to institute such action against a public prosecutor must have
knowledge of all the facts involved in those elements before it can be said that he or she
has knowledge of all the facts from which the debt arises or arose as contemplated in
section 12(3).
In the light of Moleko it seems to me that, for a plaintiff to be deemed to have
had knowledge of facts from which his or her debt arises, as contemplated i n
section 12(3) of the Prescription Act when that debt is a claim for malicious prosecution,
the plaintiff must have had knowledge of more facts than simply that the criminal
charges have been withdrawn or that the prosecution failed. Those facts include the
facts on the basis of which the plaintiff will allege bad faith on the part of the defendant.
This means that the contention by the respondent and the decision by the High Court
that the only fact that needed to be known by the plaintiff was that the charges had been
withdrawn is wrong and falls to be rejected. The court a quo should have had regard to
the elements or requirements of the delict of malicious prosecution in order to determine
what facts a creditor in a malicious prosecution action must have knowledge of before
it can be said that the debt is deemed to be due in terms of section 12(3) of the
Prescription Act but it did not do so. This led it to a wrong conclusion.
ZONDO DCJ
29
Before the High Court the respondent was required to show, among other things,
that on or about 13 October 2009 the applicant had knowledge of all the facts on the
basis of which he could allege that the public prosecutor had not acted in good faith or
had acted in bad faith in instituting the criminal proceedings on 6 October 2009 and in
not thereafter withdrawing them before 13 October 2009. The respondent failed to
show this in the High Court. For that reason, it was not open to the High Court to
conclude that, as at 13 October 2009, the applicant knew all the facts he needed to know
in order to be able to institute an action for malicious prosecution against the respondent.
Instead, it was the applicant who showed that, when he had access to the police docket
in August 2012, he realised that a statement made by the Investi gating Officer and
placed before the public prosecutor included facts on the basis of which he could allege
that the public prosecutor could not have acted in good faith in prosecuting him. Those
facts were that the Investigating Officer had said that thi s was a civil matter, there was
to be no further investigation and the public prosecutor should not oppose a bail
application. Those were some of the facts of which the applicant did not have
knowledge of before August 2012. Those facts were material for the applicant’s claim
or action and fell within section 12(3) of the Prescription Act.
It is appropriate at this stage to refer to the judgment of this Court in Links. In
that case this Court was concerned with when prescription had begun to run against Mr
Links’ claim. The present case is also about the same issue in respect of the applicant’s
claim. In Links that question turned on when it could be said that Mr Links had acquired
knowledge of all the facts from which his claim had arisen as contempla ted in section
12(3) of the Prescription Act. In the present case, too, the question as to when
prescription began to run against the applicant’s claim turns on when it can be said that
the applicant acquired knowledge of all the facts from which the clai m arose as
contemplated in section 12(3).
In Links the respondent contended that prescription had begun to run on or before
5 August 2006 whereas Mr Links contended that it had begun to run much later than
that after a certain doctor had had access to his hospital records and discovered what
ZONDO DCJ
30
had led to the amputation of his thumb and the permanent loss of the use of his left arm
and hand. This Court accepted this contention by Mr Links and held that Mr Links only
acquired knowledge of all the facts from w hich his claim had arisen after his medical
advisor had had access to his hospital records. In the present case the respondent
contends that the applicant acquired all the facts from which his claim had arisen on or
before 13 October 2009 – which was way before the applicant or his attorney had access
to the police docket – whereas the applicant contends that he only acquired knowledge
of all the facts from which his debt or claim had arisen after he or his attorney had
gained access to the police docket. That was in August 2012.
In the circumstances, just as this Court held in Links that Mr Links had acquired
knowledge of all the facts from which his claim or debt had arisen after his medical
advisor had had access to his hospital records, in this case, too, it should hold that the
applicant acquired knowledge of all the facts from which his claim or debt arose after
he or his attorney had had access to the police docket in August 2012. I hold
accordingly. This judgment is, therefore, in line with this Court’s judgment in Links
and both judgments deal with when knowledge of facts from which the claim arose was
acquired.
The second judgment takes the view that the facts from which a debt arises , as
contemplated in section 12(3) of the Prescription Act, requires a distinction to be drawn
between facta probantia and facta probanda . It says that the facts contemplated in
section 12(3) are the facta probanda and not facta probantia.
This case is about whether the applicant’s claim had prescribed by the time that
the applicant served summons on the respondent. The answer to that question depends
upon the answers to the questions: what facts does section 12(3) require a creditor to
know in respect of a claim for malicious prosecution before prescription can s tart
running against that claim? Did the applicant know those facts for over three years
before he served summons on the respondent? If the answer to the second question is
in the affirmative, then the applicant’s claim had prescribed. If the answer to that
ZONDO DCJ
31
question is in the negative, then the applicant’s claim had not prescribed. In terms of
section 12(3) a debt is deemed not to be due and, therefore, prescription does not start
running, until, among others, the creditor has “knowledge . . . of the fa cts from which
the debt arises”. This Court has not described the facts contemplated in the phrase “the
facts from which the debt arises” as provided for in section 12(3) as facta probanda.
What this Court has done in Links is to hold that the facts referred to in the phrase “the
facts from which the debt arises” as provided for in section 12(3) are “the facts that are
material to the debt”. I have dealt with this above.
In the light of the fact that this Court has already held that the facts from w hich
a debt arises are the facts that are material to the debt, it is preferable to use that concept
(i.e. the concept of the facts that are material to the debt) to decide this matter rather
than to invoke other concepts. Using other concepts other than the one that has already
been decided upon by this Court may serve only to confuse rather than clarify the issue.
Section 12(3) of the Prescription Act requires that such facts must have been known to
the creditor or plaintiff before the debt may be deemed to be due or before prescription
may begin to run. Section 12(3) contemplates a fact without which a plaintiff cannot
be said to have a cause of action. Therefore, a fact that falls within section 12(3) is one
without which there is no complete cause o f action. For prescription to run against a
debt or claim, the plaintiff must have knowledge of all the facts without which he or she
does not have a complete cause of action.
In the present case, can it be said that as at 13 October 20 09 the applicant knew
all the facts on the basis of which he could allege bad faith on the public prosecutor’s
part? The answer is no. He did not know any such fact or facts because (a) he had not
had any discussion with the public prosecutor, (b) he had not exchanged any
correspondence with the public prosecutor and, (c) he did not know what facts or
information was known to the public prosecutor or what facts or information the public
prosecutor had at his or her disposal.
ZONDO DCJ / FRONEMAN J
32
In the circumstances I conclude that the respondent failed to show that the
applicant had knowledge of the facts contemplated in requirements (b) and (c) or in
section 12(3) as at 13 October 2009. That means he failed to discharge the onus which
rested on him. That being the case it can, therefore, not be said that the applicant’s debt
in this case was due or was deemed to be due as at 13 October 2009. Instead it seems
to me that the facts that relate to the requirements in (b) and (c) only came to the
applicant’s knowledge in August 2012. This means that the applicant was not shown
to have had knowledge of all the facts from which the debt arose prior to August 2012.
That being the case, the applicant’s claim had not prescribed as at 31 January 2013.
Consequently, the appeal must su cceed and the order of the High Court should be set
aside and replaced with one dismissing the special plea with costs. In the circumstances
the respondent’s special plea should have been dismissed . With regards to costs, even
if the special plea had been correctly upheld, it would not have been appropriate for the
High Court to award costs against the applicant because the Biowatch approach would
have been applicable.
I agree with Jafta J’s judgment which I have had the opportunity of reading.
In the result the following order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is upheld with costs.
4. The order of the court a quo is set aside and replaced with the following:
“(a) The special plea is dismissed with costs.”
FRONEMAN J (Cameron J , Ledwaba AJ, Madlanga J, Mhlantla J and Nicholls AJ
concurring):
FRONEMAN J
33
Introduction
I have had the benefit of reading the judgment of Zondo DCJ (first judgment),
but I cannot agree with its reasoning and outcome. 36 The reason is that the first
judgment conflates what must be proved to establish a claim for malicious prosecution
with the evidence that proves those facts.37 To prove malicious prosecution, the plaintiff
here needed to establish only (a) lack of reasonable and probable cause and (b) intent to
injure (animus injuriandi).38 Only these two facts are relevant to this case as they are
“the facts from which the debt arises ”. Of these o nly, a creditor needs to have
knowledge for prescription to start running in terms of section 12(3). A plaintiff does
not need to know the further facts that establish the absence of reasonable probable
cause and intent to injure.
Lack of reasonable and probable cause and intent to injure will almost invariably
have to be proved by inference from other, secondary, facts. This will be done by
assessing whether the facts presented in evidence lead to the probable conclusion39 that
the prosecution took place without reasonable and probable cause and with intent to
injure. The factual evidence that, taken together, proves the absence of reasonable and
probable cause plus animus injuriandi will vary from case to case. It is impossible to
state a general legal rule by which factual evidence is necessary as proof of these
ultimate legal requirements.
36 I have also read the judgments of Jafta J and Theron J. From my perspective they merely strength en my view
that this matter concerns the application of settled law to the facts, which militates against a finding that this Court
has jurisdiction to entertain this application.
37 The distinction between the facts that must ultimately be proved in a case, the facta probanda (“the facts that
must be proved”) and the factual evidence to prove those facts in issue, the facta probantia (“the proving facts”),
is well known in our law.
38 See the first judgment at [48] to [54].
39 In a civil case like this one, the inference drawn must be the most probable one on the facts. In a criminal case
the “two cardinal rules of logic” enunciated in R v Blom 1939 AD 188 at 202 -3 will apply. Namely, that the
inference must (1) be consistent with all the proven facts, and (2) exclude every other reasonable one. In a civil
case the first rule applies equally, but the second becomes the most probable, not the only reasonable inference.
See, for exampl e, Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159A -D;
Macleod v Rens 1997 (3) SA 1039 (E) at 1048I -1049C; and Govan v Skidmore 1952 (1) SA 732 (N) at 734A -E.
For a general discussion of the development of these “two cardinal rules of logic” in South African law, see Zeffert
and Paizes The South African Law of Evidence 3 ed (LexisNexis, Durban 2017) at 102-116.
FRONEMAN J
34
It is not clear to me whether the first judgment purports to lay down a legal rule
that in all debts arising from delictual claims based on malicious prosecution,
prescription starts to run only when a claimant has knowledge of the contents of the
police docket. That would be a disquieting departure from the clear conceptual logic of
the precedents in this area. For the reason stated above – that the evidence to prove lack
of reasonable and probable cause and intent to injure will vary from case to case – a
legal rule to that effect cannot and should not be posited.40
Did Mr Kruger’s claim prescribe? The only question to ask is whether the facts
known to him on the day the charge was withdrawn were sufficient to ground the likely
inference that there was no reasonable and probable cause for his prosecution and that
his prosecution proceeded with intent to injure on the part of the public prosecutor.
Asking this qu estion does not entail propounding a legal precept. It simply
involves employing “a rule of logic, an instrument for the avoidance of fallacious
inference”.41 Asking whether Mr Kruger knew enough on the day the charge against
him was withdrawn to infer that, probably, he could sue for malicious prosecution is a
question of fact. It is akin to enquiring whether the factual conclusion reached by the
High Court is correct. It is the kind of issue this Court generally eschews enquiring
into.
This means there is no constitutional or legal issue to ground this Court’s
jurisdiction. The first judgment asserts that this statement is in conflict with Mtokonya.
It is not. Neither Mtokonya, nor any of the cases it relied upon, involved the mere
settling of a factual dispute as to whether the matter had prescribed or not.42 I agree that
40 Compare Links above n 5 at paras 43-9 and Loni v MEC for Health, Eastern Cape (Bhisho) [2018] ZACC 2;
2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC) at paras 26 and 34-5.
41 Nicholas “The Two Cardinal Rules of Logic in Rex v Blom” in Kahn (ed) Fiat Iustitia: Essays in Memory of
Oliver Deneys Schreiner (Juta & Co Ltd, Cape Town 1983) 312 at 320.
42 Each of these cases dealt with the interpretation of legislation in relation to time periods. See Mtokonya above
n 3 at paras 9-10, citing 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; 2018
FRONEMAN J
35
this Court has jurisdiction where the matter involves an interpretation of legislation that
limits the applicant’s right in terms of section 34 of the Constitution, but this case does
not involve the interpretation of section 12(3) of the Prescription Act.
What did Mr Kruger and his lawyers know at that stage? From his personal
knowledge he presumably knew that the charge was trumped up by his neighbour. At
his first appearance in court, no trouble was taken to explain why he would not be
granted bail. Also, he was apparently given no proper opportunit y at that stage to
explain his position. A week later the charge was withdrawn – once more, without any
explanation. There is no evidence to explain this cavalier conduct. Does that warrant
a probable inference that there was no reasonable and probable cause and that the
prosecutor acted with intent to injure? Of course it does. Some fancy footwork would
have to be performed to explain why, if these facts were sufficient for reasonable and
proper cause, the charge was withdrawn. Even more dancing on t he coals would be
necessary to convince a court that all this was done in good faith.
The “facts from which the debt arose ” in this case are the “facts that must be
proved” (facta probanda ) for malicious prosecution, which the applicant had
knowledge of b efore learning of the additional “proving facts ” (facta probantia )
gleaned from the police docket. While this additional evidence of the “proving facts”
obviously strengthened his case for establishing the facts that must be proved, the
applicant already had knowledge of the essential facts from which the debt arose.
That should be the end of the matter. Whether the actual contents of the docket
would help Mr Kruger to prove his claim does not matter. It is irrelevant to the question
whether the available facts supported the conclusions of lack of reasonable and probable
cause and intent to injure on the day of the withdrawal of the charge. Even without the
policeman’s opinion about the case, the only relevant opinion, that of the public
prosecutor, shows lack of reasonable and probable cause, as well as intent to injure.
(1) SA 38 (CC); 2017 (4) BCLR 473 (CC) at para 18; Links above n 5 at para 22; and Road Accident Fund v
Mdeyide [2010] ZACC 18; 2011 (2) SA 26 (CC); 2011 (1) BCLR 1 (CC) at para 4.
FRONEMAN J / JAFTA J
36
I also disagree that Biowatch was applicable in the High Court. There was no
constitutional principle put forward in the High Court. It was a run-of-the-mill delictual
claim for damages arising from malicious prosecution.
I agree that condonation for the late application should be granted, for the reasons
set out in the first judgment. In the result I dismiss the application for leave to appeal.
JAFTA J (Mogoeng CJ and Zondo DCJ concurring):
Introduction
I have had the benefit of reading the judgment of Zondo DCJ (first judgment),
the judgment of Froneman J (second judgment) and the judgment of Theron J
(fourth judgment). The first two judgments differ in rela tion to the outcome of this
matter. The disagreement stems from the question whether upon withdrawal of the
criminal charges, the applicant had knowledge of all material facts from which his claim
for malicious prosecution arose. And they also diverge on the question of jurisdiction.
The first judgment holds that the applicant acquired knowledge of all material
facts when he had access to the police docket in August 2012. Whereas the second
judgment holds that the knowledge of those facts was acquired on 13 October 2009,
when criminal charges were withdrawn against the applicant. These dates are meant to
determine the time at which the claim of malicious prosecution against the respondent
is deemed to have been due and prescription commenced to run against that claim in
terms of section 12(3) of the Prescription Act. Calculating the running of prescription
from October 2009, the second judgment upholds the conclusion of the High Court to
the effect that when the summons was issued the claim had prescribed. As a result, the
second judgment dismisses the application for leave to appeal.
I agree with the first judgment that prescription commenced to run in
August 2012 after the applicant received the police docke t. This means that when the
JAFTA J
37
summons was served in January 2013 the claim had not prescribed. I also agree with
the first judgment that the jurisdiction of this Court has been established in this matter.
The second judgment disputes that the matter falls within the Court’s jurisdiction.
I write to show that there are further reasons for concluding that the High Court
was mistaken when it held that the applicant’s claim had prescribed. Prescription was
introduced as a defence by the respondent in the for m of a special plea. As the
respondent relied on section 12(3) of the Act in contending that the claim had
prescribed, the onus was on it to prove that the requirements of that section were met
on 13 October 2009 and that prescription commenced to run on that day. In Van Zijl,
the Supreme Court of Appeal 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 has expired before the action was instituted”.43
Therefore with reference to section 12(3), for the respondent’s special plea to
succeed, it had to prove on a balance of probabilities that on 13 October 2009, the
applicant had knowledge not only of the material facts from which the claim arose but
also of the fact that the respondent was one of the debtors. The respondent would have
discharged this onus by leading evidence at the High Court which proved that the
applicant had the necessary knowledge of the relevant facts on the date from which the
respondent claimed prescription started to run. The judgment of the High Court shows
that the respondent did not call even a single witness at the trial.44
The question that arises is on what basis can it be said that it had discharged the
onus that rested squarely on it. The respondent did not only fail to call witnesses but he
placed no evidence whatsoever before the High Court. Instead, he relied on the
evidence of the applicant’s attorney to claim that the applicant knew of the identity of
43 Van Zijl v Hoogenhout [2004] ZASCA 84; 2005 (2) SA 93 (SCA) at para 41.
44 High Court judgment above n 1 at para 27.
JAFTA J
38
the debtor and the relevan t material facts on 13 October 2009. On this aspect of the
case, the High Court said:
“The plaintiff hereafter closed its case in respect of the defendant’s first special plea.
Ostensibly due to the concession by the plaintiff’s attorney of record, couns el for the
defendant decided not to call any witnesses and also closed the defendant’s case.”45
The concession to which the High Court referred appears in the following
statement:
“I inquired from the witness whether he will accept, that shortly after the Defendant’s
attorney of record (Mr Olwage) received a copy of the Plaintiff’s relevant SAPS
Docket, made a copy thereof available to him. His answer was:
‘Ek het geen rede om dit te betwis nie.’ [I have no reason to dispute it]
Adv Uys vehemently objected to my question. I rejected his objection, firstly because
the answer was already given; and, secondly because there was no legal basis for the
objection. I merely asked the later question in order to ascertain if this fact would be
an issue of dispute between the parties. The answer of Mr Erasmus disposed thereof.
It was clear to me that Adv Uys held a different vi ew from that of the witness.
Mr Erasmus was a good witness. He was cool, calm and collected and his demeanour
was of utmost c ourtesy. There was no duress placed on Mr Erasmus to make the
concession. In my view the answer was given truthfully by Mr Erasmus. I accordingly
for the record, noted the aforesaid concession made by Mr Erasmus.”46
The so-called concession does not support the fac t that on 13 October 2009, the
applicant knew that the respondent was the debtor and that he also had knowledge of
material facts from which the claim against the respondent arose. Instead, it suggests
that the applicant acquired that knowledge after he h ad had access to the police docket
in August 2012. In fact, in the preceding paragraph, the attorney is recorded to have
45 Id at paras 26-7.
46 Id at paras 24-5.
JAFTA J
39
said that he had “no information that indicated that the Prosecuting Authority went on
a frolic of their own”.47
This is consistent with the attorney’s uncontroverted evidence. This witness, as
it appears above, was described in glowing terms by the High Court which accepted his
evidence. On the issue of knowledge, the High Court said:
“The witness was however adamant that he was not able to issue summons against the
defendant because he did not have knowledge of the identity of the defendant (as
debtor) and the facts from which the plaintiff ’s cause of action arose . Only after he
was placed in possession of the SAPS docket pertaining to the arrest and detention of
the plaintiff did these facts become known to him and was he able to issue summons
on behalf of the plaintiff against the defendant. Mr Erasmus only obtained a copy of
the SAPS docket at the end of August 2012, subsequent to which summons was issued
against the defendant and served on it on 31 January 2013.”48
For his part, the applicant had testified that on 13 October 2009 the attorney who
represented him then, advised him that he could institute a cla im against the
complainant or the Minister of Police.49 Having changed attorneys, he was advised by
the attorney who testified at his trial, Mr Erasmus, that there were no prospects of
recovering damages from the complainant, rather they should institute a ction against
the Minister of Police. But the attorney advised that the applicant should obtain a copy
of the police docket. The applicant’s attempts in this regard were unsuccessful. Fearing
that the claim against the Minister would prescribe before th ey obtained the police
docket, the applicant’s attorney initiated action against the Minister.
Although the High Court had described Mr Erasmus as a good witness whose
evidence it had accepted on the concession, it rejected the evidence in relation to the
identity of the debtor. The High Court reasoned:
47 Id at para 23.
48 Id at para 20.
49 Id at para 15.
JAFTA J
40
“32. The next question to consider is the plaintiff’s ‘knowledge of the identity of the
debtor’, as envisaged by section 12(3) of the Act.
32.1. Although Mr Erasmus testified, and the plaintiff in his evidence
alluded thereto, that the identity of the defendant (as debtor), w as
unknown to them, before they were placed in possession of the SAPS
docket, this is simply untrue due to the following considerations:
32.1.1. Mr Erasmus testified that he was also unable to issue
summons against the Minster of Police on the basis
that he did not have sufficient information to institute
civil action for damages against the Minister of Police
without the contents of the SAPS docket. This would
obviously also have included the identity of the said
debtor. Nonetheless, Mr Erasmus was able to identify
this debtor and indeed issue summons against the said
Minister, without a copy of the SAPS docket.
32.1.2. Furthermore, only two possible institutions could have
been able to arrest and prosec ute (and be liable for
unlawful arrest and / or wrongful and malicious
proceedings) in respect of the p laintiff after Johnson
made a false criminal complaint against the plaintiff:
The SAPS (under t he Minister of Poli ce) and the
defendant. Summons was issued against the Minister
of Police but not against the defendant.
32.1.3. The d efendant (normally acting through its
prosecutors) is the only institution in the Republic of
South Africa that has the authority to insti tute and
withdraw criminal proceedings on behalf of the State
against a person and to carry out any necessary
functions incidental thereto.
32.1.4. It was the actions of d efendant’s prosecutor(s), acting
within the scope of their employment, which le ad to
the incarceration of the p laintiff for 7 days on
6 October 2009. It was the defendant’s same
JAFTA J
41
prosecutor(s) who withdr ew al l criminal charges
against the defendant on 13 October 2009.
33. I accordingly find that the plaintiff and his legal team, at all relevant times since
the plaintiff’s cause of action arose on 13 October 2009, had knowledge of the
identity of the defendant (as debtor).”50
The conclusion that the evidence of the applicant and his attorney was not true
was based on what the High Court call ed considerations. No adverse credibility
findings were made against these witnesses. Nor was their version controverted.
The so -called considerations taken, either individually or collectively, do not
sustain the finding that the evidence was untrue. It is difficult to appreciate how the
statement by the attorney to the effect that he was unable to issue summons against the
Minister of Police for he did not have sufficient information without the docket, makes
the attorney’s evidence untrue. Nor does the fact that he eventually issued summons
against the Minister of Police render his testimony false. Worse still is to declare the
applicant’s own evidence false on the same basis.
The other considerations mentioned by the High Court have no bearing on the
finding that the applicant and his legal team had knowledge that the respondent was the
debtor as from 13 October 2009. There is simply no factual basis for this finding. As
mentioned, the onus was on the respondent to prove that on that date, which was before
his current attorney was engaged, the applicant knew that the respondent was the debtor.
In Shange51, the Supreme Court of Appeal had to determine the date on which
prescription started to run against the employer of the wrongdoer. The Court held:
“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
50 Id at paras 32-3.
51 MEC for Education, Kwazulu-Natal v Shange [2012] ZASCA 98; 2012 (5) SA 313 (SCA) (Shange).
JAFTA J
42
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 t he 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 ide ntity of the appellant as his debtor for the
purposes of the provisions of section 12(3) of the Prescription Act.”52
Here the evidence on record is that on 13 October 2009, the applicant knew that
the complainant and the Minister of Police were debtors. This was what he was told by
his former attorney. And this advice was based on the facts then known to the attorney,
namely, the false charge by the neighbour and the arrest by the Police. On the facts,
there is nothing suggesting culpability of the public prosecutor at that stage.
Although all of this constitutes an analysis of facts, what implicates the
applicant’s constitutional rights is the findings reached. Those rights are affected by
the application of section 12(3) of the Act to those facts and the legal conclusion that
the applicant’s claim had prescribed. The effect of that legal conclusion is that the
applicant is denied access to courts to have the dispute between him and the respondent
resolved by application of law. As was observed in Links, the application of
section 12(3) also implicates the rights guaranteed by section 12 of the Constitution. 53
Here the affected right is the right to personal freedom which may not be deprived
arbitrarily or without just cause. A direct consequence of the prosecutor’s conduct was
the loss of the applicant’s freedom. Consequently, the matter engages the jurisdiction
of this Court.
It may well be that had the claim we are concerned with here been against the
neighbour who laid a false charge, the conclusion that the requirements of section 12(3)
were met would be justified. This is because as on 13 October 2009, the identity of that
52 Id at para 11.
53 Links above n 5 at para 22.
JAFTA J
43
debtor and the material facts were known to the applicant. But the knowledge of those
facts does not reveal the identity o f the public prosecutor as a co -debtor, let alone his
culpability. Nor do those facts show that the public prosecutor himself knew that the
charge was false at the time he opposed bail. This explains why the applicant’s legal
team advised him, on the fac ts as then known, that he had claims against the
complainant and the Minister of Police.
The fact that the public prosecutor withdrew the charges on 13 October 2009
does not even remotely suggest that, as on 6 October 2009 when the applicant appeared
in court, it can be objectively seen that he knew that the charges were bogus. Therefore,
there can be no basis for imputing knowledge of this fact to the applicant. Without
having had access to the docket and not having been informed of this fact by anybody,
the only plausible inference, if one were to be drawn, is that the applicant had no
knowledge of some facts and that the respondent was a co-debtor until he had access to
the police docket.
The unsatisfactory manner in which the High Court adjudicated the special plea,
prompted the Chief Justice to issue Directions that called upon the parties to address
specific issues in written submissions.54 These issues included the question whether the
54 In relevant part the Directions dated 23 May 2018 reads:
“1. The parties are directed to deliver to the Registrar and serve on all other parties written
submissions on:
a) Whether the High Court was justified in upholding the respondent’s special
plea of pr escription on the basis that the facts that the applicant and his
lawyers knew on 13 August 2009 when the charges against the applicant were
withdrawn were enough for him to institute an action against the respondent.
b) Whether, in the context of a claim for malicious prosecution, prescription
began to run when the charges against the applicant were withdrawn, or when
the applicant and his lawyers got access to the SAPS police docket and
discovered that the respondent had no basis for not allowing the applica nt to
be released on bail and/or for not withdrawing charges.
c) Whether, in view of the facts giving rise to the claim as contemplated in
section 12(3) of the Prescription Act, the applicant had, in the absence of the
information in the SAPS police docket, t he factual knowledge he required to
lodge a claim based on malicious prosecution against the respondent.
d) What implications this Court’s decision in Links v MEC of Health 2016 (4)
SA 414 (CC) has on the questions raised in this application.”
JAFTA J / THERON J
44
High Court was right in holding that at the time charges were withdrawn, the applicant
had knowledge of the facts described in section 12(3) of the Act, pertaining to a claim
against the respondent. In his written submissions, the applicant contended that the
facts that supported a claim against the respondent only came to light upon perusal of
the police docket.
The respondent countered by submitting that—
“the fact that the charges against the applicant were withdrawn and that the applicant
was represented by an at torney and counsel when that happened, constitute sufficient
facts contemplated in section 12(3) of the Prescription Act for the applicant to have
instituted action against the respondent.”
There is no substance in this argument. The facts envisaged in s ection 12(3) are the
identity of the debtor and material facts from which the debt arose. All these facts must
be known to the creditor before prescription can start running. The representation of
the applicant by the legal team and the withdrawal of charges could not, contrary to the
respondent’s submission, sustain the inference that the applicant had knowledge of the
necessary facts.
It is for these reasons and those set out in the first judgment that I support the
order proposed in that judgment.
THERON J:
I have had the pleasure of reading the judgments of my colleagues Zondo DCJ
(first judgment), Froneman J (second judgment) and Jafta J (third judgment). I agree
that condonation should be granted. Regarding the application for leave to appeal, I
THERON J
45
cannot agree with the reasoning any of them proposes. The reason for this is simple:
this matter should have been set down for a hearing.
This application for leave to appeal requires us to consider the circumstances in
which this Court should dispose of matters without a hearing. It is the duty of this Court
to determine the constitutionally appropriate manner of managing cases before it. This
it must do by ha ving regard to the interests of justice. 55 It must also do so bearing in
mind that parties before it have a right to have their matter resolved by this Court fairly
and publicly.56
This Court occasionally writes judgments in applications for leave to appeal
without affording parties an oral hearing. 57 This is envisaged in rule 19(6)(b) of the
Rules of this Court.58 This course is adopted when matters are “open and shut”, in that
their outcome is clear, and when an oral hearing is considered unnecessary .59 At the
55 Section 173 of the Constitution provides:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa
each has the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.”
56 Section 34 of the Constitution.
57 The first time this Court delivered a judgment without an oral hearing was in Besserglik v Minister of Trade
Industry and Tourism (Minister of Justice Intervening) [1996] ZACC 8; 1996 (4) SA 331 (CC); 1996 (6) BCLR
745 (CC). The matter concerned an application for direct access that was summarily dismissed in a short
judgment.
58 The rule reads:
“Applications for leave to appeal may be dealt with summarily, without receiving oral or written
argument other than that contained in the application itself.”
59 AfriForum v University of the Free State [2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC)
at para 118; Harrielall v University of KwaZulu -Natal [2017] ZACC 38; 2017 JDR 1716 (CC); 2018 (1) BCLR
12 (CC) at paras 9, 15 and 16; Mogaila v Coca Cola Fortune (Pty) Ltd [2017] ZACC 6; 2018 (1) SA 82 (CC);
2017 (7) BCLR 839 (CC) at paras 27-9; S v Schoombee [2016] ZACC 50; 2017 (2) SACR 1 (CC); 2017 (5) BCLR
572 (CC) at para 36; Pieterse N.O. v Lephalale Local Municipality [2016] ZACC 40; 2016 JDR 2069 (CC); 2017
(2) BCLR 233 (CC) at para 11; Tebeila Institute of Leadership, Education, Governance and Training v Limpopo
College of Nursing [2015] ZACC 4; 2015 (4) BCLR 396 (CC) at paras 9 -10; President of the Republic of South
Africa v South African Dental Association [2015] ZACC 2; 2015 JDR 0103 (CC) ; 2015 (4) BCLR 388 (CC) at
para 15; MC Denneboom Service Station CC v Phayane [2014] ZACC 29; 2015 (1) SA 54 (CC); 2014 (12) BCLR
1421 (CC) at para 17; Daniel v President of the Republic of South Africa [2013] ZACC 24; 2013 JDR 1439 (CC);
2013 (11) BCLR 1241 (CC) at paras 13 -4; Minister for Correctional Services v Van Vuren ; In re Van Vuren v
Minister for Correctional Services [2011] ZACC 9; 2011 (10) BCLR 1051 (CC) at para 9; City of Tshwane
Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZACC 34; 2010 (5) BCLR 445 (CC) at para 10; Strategic
Liquor Services v Mvumbi N .O. [2009] ZACC 17; 2010 (2) SA 92 (CC) ; 2009 (10) BCLR 1046 (CC) at para 2;
Helicopter & Marine Services (Pty) Ltd v V & A Waterfront Properties (Pty) Ltd [2005] ZACC 21; 2005 JDR
1400 (CC); 2006 (3) BCLR 351 (CC) at para s 7-8; S v van Vuuren [2005] ZACC 11; 2005 (2) SACR 1 (CC);
THERON J
46
same time, though the matter is straightforward and can be dealt with summarily, the
circumstances of the case may require a short judgment to explain the Court’s order.60
The rationale is obvious: scarce judicial resources should not be wasted on
hearing matters that can be resolved expeditiously, fairly and effectively without the
elongated process of setting them down for a hearing. In Mphahlele, this Court
explained (in the context of there being no absolute requirement that a Court of last
instance gives reasons when dismissing an application for leave to appeal):
“Courts of last instance in this and most democratic countries do furnish reasons.
However, in applications for leave to appeal to a court of last instance, other compelling
practical considerations apply. In particular, it is not in the public interest to clog the
rolls of such courts by allowing ‘unmeritorious and vexatious issues of procedure, law
or fact’ to be placed before them. The purpose of the procedure requiring leave to
appeal is to avoid the waste of judicial time.”61 (Footnotes omitted.)
The European Court of Human Rights, including its Grand Chamber, has
explained that, even in the context of criminal matters—
2005 (7) BCLR 639 (CC) at para 4; Radio Pretoria v Chairperson , Independent Communications Authority of
South Africa [2004] ZACC 24; 2005 (4) SA 319 (CC); 2005 (3) BCLR 231 (CC) at para 21; Xinwa v Volkswagen
of South Africa (Pty) Ltd [2003] ZACC 7; 2003 (4) SA 390 (CC) ; 2003 (6) BCLR 575 (CC) at para 11; Minister
of Home Affairs v Liebenberg [2001] ZACC 3; 2002 (1) SA 33 (CC); 2001 (11) BCLR 1168 (CC) at para 15; S v
Price [2001] ZACC 1; 2001 JDR 0761 (CC); 2001 (11) BCLR 1193 (CC) at para 2; Wallach v Selvan [2001]
ZACC 24; 2001 (11) BCLR 1195 (CC) at para 3; Levy v Glynos [2000] ZACC 20; [2001] JOL 7689 (CC) at para
1; Fraser v Naude [1998] ZACC 13; 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at paras 10 -1; S v Mello
[1998] ZACC 7; 1998 (3) SA 712 (CC); 1998 (7) BCLR 908 (CC) at para 10; Oranje Vrystaatse Vereniging vir
Staatsondersteunde Skole v Premier, Province of the Free State [1998] ZACC 4; 1998 (3) SA 692 (CC); 1998 (6)
BCLR 653 (CC) at para 4; S v Ntsele [1997] ZACC 14; 1997 (2) SACR 740 (CC); 1997 (11) BCLR 1543 (CC) at
para 3; S v Julies [1996] ZACC 14; 1996 (2) SACR 108 (CC); 1996 (7) BCLR 899 (CC) at para 3; Besserglik
above n 57 at para 5.
The Supreme Court of Appeal adopts the same approach. See S v Zulu [2016] ZASCA 207. The Supreme Court
of Appeal does so in terms of section 19(a) of the Superior Courts Act 10 of 2013, which reads:
“The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to
any power as may specifically be provided for in any other law—
(a) dispose of an appeal without the hearing of oral argument.”
60 Wallach v High Court of South Africa, Witwatersrand Local Division [2003] ZACC 6; 2003 (5) SA 273 (CC);
[2003] JOL 10847 (CC) at para 3; Beyers v Elf Regters van die Grondwetlike Hof [2002] ZACC 19; 2002 (6) SA
630 (CC); 2002 (10) BCLR 1001 (CC) at para 2; Fraser id at para 11.
61 Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR
253 (CC) at para 13. The Court was quoting from S v Rens [1995] ZACC 15; 1996 (1) SA 1218 (CC); 1996 (2)
BCLR 155 (CC) at paras 24-5. See further Beyers id at para 8.
THERON J
47
“provided that there has been a public hearing at fir st instance, the absence of public
hearings at second or third instance may be justified by the special features of the
proceedings at issue. Thus, proceedings for leave to appeal or proceedings involving
only questions of law, as opposed to questions of fact, may comply with the
requirements of Article 6 [of the European Convention on Human Rights] even where
the appellant was not given an opportunity of being heard in person by the appeal or
cassation court.”62
The European Court of Human Rights has repeatedly emphasised that fairness is
the lodestar in determining whether an oral hearing is warranted when an appeal is
considered by an appellate court. Fairness is determined on the facts of each case by
considering whether the grounds of appeal are factual or legal, the matter is criminal or
civil, the parties were represented on appeal, the nature of the issues to be decided by
the court of appeal, and whether the appellate court had all the information before it to
decide the matter without a hearing. 63 The approach advocated under Article 6 of the
European Convention on Human Rights , for determining a fair appeal procedure
(without an oral hearing), would equally satisfy the access to justice and fair trial rights
requirements of sections 34 and 35 of t he Constitution respectively.64 Fairness and its
associated considerations, should also dictate the circumstances when a short judgment,
without a hearing, is in the interests of justice as envisaged in section 173 of the
Constitution.
62 Meftah v France [GC], nos 32911/96, 35237/97 and 34595/97, § 41, ECHR 2002. Article 6(1) of the European
Convention on Human Rights provides in relevant part that “[i] n the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law”.
63 See for examples Moreira Ferreira v Portugal (No. 2) [GC], no 19867/12, § 22 (Joint Dissenting Opinion o f
Judges Raimondi, Nußberger, De Gaetano, Keller, Mahon ey, Kjølbro and O’L eary), ECHR 2017; Zahirović v
Croatia, no 58590/11, § 54-7, ECHR 2013; Sibgatullin v Russia, no 32165/02, § 34-7, ECHR 2009; Hermi v Italy
[GC], no 18114/02, § 60-1, ECHR 2006; Levages Prestations Services v France, no 21920/93, § 49, ECHR 1996;
Helmers v Sweden, no 11826/85, § 4-6 (Dissenting Opinion of Judge Morenilla), ECHR 1991; Ekbatani v Sweden,
no 10563/83, § 27 -33, ECHR 1988; Monnell and Morris v United Kingdom , nos 9562/81 and 9818/82, § 65,
ECHR 1987.
64 It is trite that international law must be considered when interpreting the Bill of Rights, including (albeit with
less weight) non-binding international law. See section 39(1)(b) of the Constitution; S v Mlungwana [2018] ZACC
45; 2019 (1) BCLR 88 (CC) at para 48 fn 70; Glenister v President of the Republic of South Africa [2011] ZACC
6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) at para 178 fn 28; Government of the Republic of South Africa
v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para 26; and S v Makwanyane
[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paras 34-5.
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Similarly, the United Nations Human Rights Committee explains, in relation to
article 14 thereof, 65 that the International Covenant on Civil and Political Rights
(ICCPR)—
“does not require a full retrial or a ‘hearing’ [in criminal appeals or reviews], as long
as the tribunal carrying out the review can look at the factual dimensions of the case.
Thus, for instance, where a higher instance court looks at the allegations against a
convicted person in great detail, considers the evidence submitted at the trial and
referred to in the appeal, and finds that there was sufficient incriminating evidence to
justify a finding of guilt in the specific case, the [ICCPR] is not violated.”66
In Van Wyk,67 this Court expanded on the factors to be considered when a matter
is decided without a hearing (albeit in a different context):68
“It is apparent from the provisions of rule 11(4) that the Court has a discretion on how
to dispose of an application before the Court. It is equally clear from these provisions
that the fact that the Court has called for written argument does not necessarily mean
that the Court will set the matter down for the hearing of oral argument. It may, in an
appropriate case, dispose of the matter on the basis of written argument only. How an
application shall be dealt with depends on the complexity of the issues involved and
what the Court considers necessary to enable it to deal with a matter . When the
allegations made in the affidavit require amplification by written argument, the Court
65 Article 14 in relevant part provides that “[a] ll persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ”.
66 United Nations Human Rights Committee General Comment 32: Article 14: Right to Equality before Courts
and Tribunals and to Fair Trial , 23 August 2007, UN Doc CCPR/C/GC/32 at para 48. The Committee cites
Communication No 1110/2002, Rolando v Philippines at para 4.5; Communication No 984/2001, Juma v
Australia at para 7.5; Communication No. 536/1993, Perera v Australia at para 6.4.
67 Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC).
68 The Court made these comments in the context of an application referred to the Chief Justice under rule 11(3)(c)
as envisaged in rule 11(4) of this Court’s Rules. These two rules provide collectively that if an application for
directions from this Court is not opposed, then it must be referred to the Chief Jus tice. The Chief Justice shall
then “give directions as to how the application shall be dealt with and, in particular, as to whether it shall be set
down for hearing or whether it shall be dealt with on the basis of written argument or summarily on the bas is of
the information contained in the affidavits”. This rule, as the Court held in Van Wyk id at para 15, is substantially
similar to rule 19(6)(b) . The comments the Court made in the rule 11 context thus apply with equal force to
rule 19(6)(b).
THERON J
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will call for written argument. And if written argument raises debatable issues the
Court will set down the matter for hearing of oral argument.”69 (Emphasis added.)
Further guidance on whether a matter is “debatable” can be gleaned from this
Court’s jurisprudence on what makes a point of law “arguable” as envisaged in section
167(3)(b)(ii) of the Constitution. In Paulsen, Madlanga J emphasised that a factor in
deciding whether a matter is “arguab le” is disagreement among Judges in the lower
court.70 If disagreement among Judges in the High Court or the Supreme Court of
Appeal speaks to a point of law being “arguable”, then, in my view, disagreement
among Judges of this Court renders the point “debatable”, warranting a hearing.
This is not an “open and shut” matter. As envisaged in Van Wyk, the written
arguments this Court received raise debatable issues on complex matters. The first
judgment essentially makes two findings:
(a) If a creditor had no reason to believe or did not know that a prosecution
was malicious or without reasonable basis, then prescription in respect of
that claim should not begin to run until he does; and
69 Id at para 16.
70 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC) at para 23, which reads:
“Without derogating from the breadth of what I have just said, some factors may be of assistance
on this question. Needless to say, these factors are no more than indicators and are by no means
decisive. In any given case this Court has to make a value judgment on whether the poin t of
law is indeed “arguable”. The examples I itemise here do not purport to be exhaustive. They
are just that – examples:
(a) The Supreme Court of Appeal may have expressed itself on the matter by a narrow
majority;
(b) A minority view in the Supreme Court of Appeal may be quite forceful;
(c) Different divisions of the High Court may have expressed divergent views on the point,
with no pronouncement on it by the Supreme Court of Appeal;
(d) There may be no authoritative pronouncement on an issue; with available, cogent
academic or expert views on it being divergent;
(e) The matter may raise a new and difficult question of law; or
(f) The answer to the question in issue may not be readily discernible. ” (Footnotes
omitted.)
THERON J
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(b) Mr Kruger had no reason to believe or did not know that his prosecu tion
was malicious or without reasonable basis so prescription should not
begin to run until he did (that is, when he got the docket).
The first finding is common cause between the various judgments in this matter.
In my view, the second finding raises t wo issues that should be ventilated at a
hearing: namely, jurisdiction and the facts within Mr Kruger’s knowledge. The fact
that three Judges of this Court have written and disagree on these issues underscores the
point I am making: the matter is at the least, debatable and on the reasoning in Van Wyk
should be set down for a hearing. The practice of this Court reflects this approach: it
has written about 150 judgments in matters where there was no hearing and of these,
only four have not been unanimous.71 These four, moreover, were handed down in the
last three years.
Regarding jurisdiction, is the question whether Mr Kruger had reason to believe
that he had a cause of action a factual or a legal enquiry? Does this distinguish this
matter from the vario us authorities concerning jurisdiction relied on by the first
judgment?
Just because this Court had jurisdiction in Links, it does not follow, without
more, that it has jurisdiction in this case too. 72 I agree that if this matter concerned the
interpretation of the Prescription Act, then that would be a constitutional matter vesting
us with jurisdiction. However, unlike Links, we are not called upon to interpret the
Prescription Act. We agree that if a creditor had no reason to believe or did not know
that a prosecution was malicious or without reasonable basis, then prescription in
respect of that claim should not begin to run until she does. What we disagree on is
71 AfriForum above n 62; S v Phakane [2017] ZACC 44; 2018 (1) SACR 300 (CC); 2018 (4) BCLR 438 (CC) ;
Swart v Star buck [2017] ZACC 23; 2017 (5) SA 370 (CC); 2017 (10) BCLR 1325 (CC); Snyders v De Jager
(Interim Relief) [2016] ZACC 52; 2017 (5) BCLR 585 (CC) (this judgment related to an interim order).
72 Links above n 5.
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whether, on the facts, this rule is satisfied. This appears to be a factual enquiry or , at
best, an application of settled law.
Determining the parameters of this Court’s jurisdiction is complicated,
contentious and an evolving area of law. This is evident from this Court ’s recent
judgments in Shane Jacobs.73 The finding of jurisdiction made by the first and third
judgments have the potential of expanding this Court’s jurisdiction in respect of
prescription. Indeed, my Brother Jafta J suggests that because prescription implicates
access to courts, the “application” of settled rules of prescription raises a constitutional
matter.74 The papers and submissions we received in this matter do not address the
issue of jurisdiction in any depth. I therefore would have preferred to have heard
argument on this.
Even if we do have jurisdiction in this matter, I do not believe that we can
properly decide whether Mr Kruger had sufficient knowledge to found a claim of
malicious prosecution without the full record. The first and third judgments lean
heavily on the police docket to argue that without it Mr Kruger could not have known
that he may have had a claim for malicious prosecution. The third judgment gives a
detailed factual analysis of what was known to Mr Kruger at all relevant stages based
on the evidence before the High Court. The second judgment invokes how Mr Kruger
knew that: (a) the dispute between him and his neighbour was civil in nature; (b) the
charges had been withdrawn for no apparent reason; and (c) he was not granted bail,
also for no apparent reason. These factual claims may be imprudent when regard is had
to the fact that this evidence, like the police docket, the charge sheet and the transcript
from Mr Kruger’s hearings, are not before us.
Mr Kruger applied for leave to appeal to this Court on 18 December 2017, some
15 months ago. The delay in finalising this application, though regrettable, should not
73 S v Jacobs [2019] ZACC 4.
74 Third judgment at [104].
THERON J
52
deter us from ensuring that justice is done and seen to be done to Mr Kruger and the
respondent. To summarily deal with this matter only so that it can be more speedily
disposed of than if it were set down for a hearing at this stage, could result in far greater
prejudice to Mr Kruger or the respondent than if the matter was further delayed to afford
him an oral hearing. Moreover, the purpose of w riting a short judgment in this matter
– to dispose of it expeditiously – can in any event not be achieved.
For these reasons, and on the papers as they stand, I am forced to dismiss the
application. This is because an applicant bears the onus of proving their case. Where
there is doubt about the order pursued, this Court cannot grant the relief sought.
For the Applicant:
For the Respondent:
P L Uys instructed by Gildenhuys
Malatji Incorporated
A C Ferreira SC and L A Pretorius
instructed by the State Attorney,
Pretoria