THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
No t Reportable
Case n o: 162/2022
In the matter between:
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
OF THE REPUBLIC OF SOUTH AFRICA FIRST APPELLANT
MINISTER OF POLICE OF THE
REPUBLIC OF SOUTH AFRICA SECOND APPELLANT
MINISTER OF HOME AFFAIRS
OF THE REPUBLIC OF SOUTH AFRICA THIRD APPELLANT
and
FRANKLIN D PENNINGTON FIRST RESPONDENT
GAIL JACKSON PENNINGTON SECOND RESPONDENT
Neutral citation: Minister of Justice and Constitutional Development and Others v
Pennington and Another (162/2022) [2023] ZASCA 51 (14 April
2023)
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Coram: PONNAN ADP, MOCUMIE, WEINER and GOOSEN JJA and
KATHREE-SETILOANE AJA
Heard: 13 March 2023
Delivered: 14 April 2023
Summary: Civil procedure – special plea of prescription – Prescription Act 68 of
1969 – when respondents had sufficient facts at their disposal – whether claim
prescribed in terms of s 12(3).
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Nyathi J, sitting as
court of first instance):
1 The appeal is upheld with costs, including those of two counsel.
2 The order of the high court is set aside and replaced with the following:
‘The special plea of prescription is upheld with costs, including those of two
counsel where so employed.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Kathree-Setiloane AJA (Ponnan ADP and Mocumie, Weiner and Goosen JJA
concurring):
[1] Mr Franklin Pennington (first respondent) and his wife, Mrs Gail Pennington
(second respondent), instituted an action in the Gauteng Division of the High Court ,
Pretoria (the high court) for damages against the appellants. The first appellant is the
Minister of Justice and Constitutional Development of South Africa (Minister of
Justice), the second appellant is the Minister of Police of South Africa (Minister of
Police), and the third appellant is the Minister of Home Affairs of South Africa (Minister
of Home Affairs).
[2] In response, the appellants raised a special plea that the respondents’ claims
had prescribed. They also raised a plea of non -joinder contending that in relation to
their malicious prosecution claim, the respondents had failed to cite the National
Prosecuting Authority (NPA) or the National Director of Public Prosecutions (NDPP)
as a defendant to the action, and that in relation to that claim, they fell to be non-suited
on that account.
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Common cause facts
[3] The common cause facts , upon which the various claims are founded, are
these:1 The first and second respondents were arrested during 1991 on charges of
fraud, forgery, and uttering. They were acquitted of th ose charges in 1992. The first
respondent was thereafter arrested on 6 September 1994 on various charges once
again including fraud, forgery, and uttering. After his arrest, the first respondent was
released on bail. The criminal proceedings in the Regional Court, Johannesburg (the
regional court) began on 3 April 1995. The first respondent was convicted on 2 June
1997 and sentenced to a term of imprisonment on 17 November 1997. He noted an
appeal against his convictions and sentences. On 18 June 2015 , the high court set
aside the first respondent’s convictions and sentence s. The respondents issued
summons in respect of this matter on 15 June 2016.
Particulars of claim
[4] The respondents plead, in their particulars of claim, that they suffered ‘damages
for a series of wrongs committed by servants of the [appellants], in relation to a 1994
arrest of the [first respondent], criminal charges , the criminal trial , conviction and
sentence, and an inordinately long delay in having a hearing in his appeal which was
successful, and all the convictions and sentences being set aside’.
[5] In addition to the common cause facts referenced above, the respondents
plead, under the heading ‘The Criminal Trials’, inter alia, that:
(a) Simultaneously with his third arrest, the Minister of Home Affairs declared the
first respondent to be a prohibited person in terms of the Alien’s Control Act ,2 and
issued him with a s 41(1) permit.3 Although this permit allowed him to remain in South
Africa pending the conclusion of the trial, it prohibited him from taking up employment
or conducting business during this time; and
(b) The first respondent was released on bail but was precluded from leaving South
Africa pending finalization of the trial and appeal.
1 The parties agreed on a list of common cause facts.
2 Aliens Control Act 96 of 1991 (Aliens Control Act).
3 Section 41(1) of the Aliens Control Act provides that:
‘The Minister may issue to a prohibited person a temporary permit on the prescribed form to enter and
reside in the Republic for the purpose, and subject to other conditions mentioned therein.’
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[6] The respondents plead under the heading ‘APPEAL’, inter alia, that:
(a) The trial record and exhibits were still in the possession of the presiding
magistrate after the trial. He only handed over the trial record (without the exhibits) to
the clerk of the regional court a year later;
(b) During the following year, the first respondent repeatedly requested the appeal
clerk at the regional court to prepare the record for appeal;
(c) The first respondent was advised during December 1998 that the typed record
had been returned to the appeal clerk but not the exhibits;
(d) Since no later than 31 December 1998 the servants of the Minister of Justice
knew or should have known that the trial record was in such a poor state that it would
be impossible to provide a proper record suitable for the appeal. Despite that
knowledge, they pretended t hat they would be able to provide a proper record, and
opposed every attempt by the first respondent to have his conviction and sentence set
aside on the grounds that it was impossible to provide a proper record suitable for the
appeal;
(e) In October 2003, the first respondent was informed by Advocate P Nel (Mr Nel)
of the office of the Director of Public Prosecutions (DPP) that the appeal had been
enrolled for hearing on 18 November 2004;
(f) This was the first of approximately 70 instances of contact that the first
respondent had with Mr Nel alone, over the ensuing 13 years in relation to the
provision of the trial record and enrollment of the appeal for hearing;
(g) In the following ten years, the first respondent would make more than 130
requests to various government entities concerning the provision of the trial record
and the enrollment of the appeal for hearing, to no avail;
(h) On 1 December 2001, the first respondent made application to the high court
to compel the DPP to provide the trial record and enroll the appeal. This application
was dismissed based on an undertaking given by Mr Nel that the record would be
ready by 17 March 2004;
(i) After numerous requests to, inter alia, the office of the DPP to be provided with
the trial record, as per the undertaking above, the first respondent launched a further
application in the Western Cape Division of the High Court, Cape Town in 2011. It was
dismissed for lack of jurisdiction. The DPP responded by saying that it had not heard
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from the first respondent for seven years, and had been advised by his former attorney
that he had died;
(j) In April 2012, the first respondent made application to the high court for an order
setting aside his conviction and sentence due to the failure of the DPP to prosecute
the matter. This application was dismissed on 18 April 2013;
(k) The DPP set the appeal down for hearing on 13 August 2012. It was postponed
sine die to allow the DPP time to reconstruct, paginate, index, copy and distribute the
record;
(l) The first respondent was provided with a copy of the reconstructed record
during March 2013. This was 16 years after he first noted the appeal; and
(m) On 18 June 2015, the criminal appeal was disposed of, and the convictions and
sentences of the first respondent were set aside.
[7] The respondents plead that the appellants are liable for damages in the
amounts sought because:
(a) ‘the State’ failed, inter alia:
(i) in its duty to ensure that the first respondent’s trial was prosecuted without
unnecessary, unreasonable or undue delays;
(ii) in its duty by failing to ensure that the appeal was prosecuted without undue
delay despite all of the first respondent’s efforts to ensure that it was finalized;
(iii) to ensure that the record was prepared for the purposes of prosecuting the
appeal, and to prepare the record without any unnecessary, unreasonable,
unwarranted or undue delay;
(iv) in one or more ways, to enroll the appeal for hearing, due to the undue,
unnecessary, intentional, alternatively negligent, and consequently unlawful delay in
reconstructing the record, despite the respondents’ constant and concerted attempts
to prosecute the matter to finality.
(b) The third arrest and the laying of criminal charges and the criminal trial pursuant
thereto were wrongful, unlawful and in breach of the right s of the respondents or one
of them; and
(c) The third arrest of the first respondent directly led to the Minister of Home Affairs
issuing the permit, in terms of the Aliens Control Act, obliging him to remain in South
Africa pending the finalization of the criminal proceedings against him . This permit
prohibited the first respondent from taking up employment or conducting business
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pending finalization of the trial and appeal. In doing so, it unjustifiably violated the first
respondent’s constitutional rights to freedom of movement and residence , and to
freedom of trade, occupation, and profession.
[8] In relation to the damages suffered, the respondents plead that:
‘The fact that the [first respondent] [was] arrested and subjected to the criminal trial, and that
[he] was precluded from taking up any employment or conduct ing business in South Africa
pending the outcome of the trial and the appeal , following the third arrest, caused the
dissipation of both [respondents’] assets, direct loss of income, pain and suffering, loss of
amenities of life and a decline in the [first respondent’s] mental and physical health as well as
consequential damages in that the [first respondent] was unable to provide for the [second
respondent] and his family.
This was exacerbated by the fact that the State, by virtue of the conditions of his re sidence,
imposed by the [third appellant], as a direct consequence of the [first respondent’s] third arrest,
by employees acting within their scope and duties as employees of the [second appellant],
precluded him from taking up employment or conducting business in South Africa, which
condition endured from 6 September 1994 to the conclusion of the appeal hearing on 18 June
2015, a period of almost twenty one (21) years. This condition still persists.
The inordinate delay, and/or refusal and/ or failure on the part of the [first appellant] to properly
prepare the record for the appeal to be prosecuted without undue delay, rendered the
permission granted by the [third appellant] to the [first respondent] to remain in South Africa
pending the conclusion of the criminal proceedings against him [by] prohibiting him from taking
up employment or conducting business, thereby denying him the means of supporting himself
or his family, unfair, unreasonable, irrational and therefore unlawful.’
[9] The respondents furthermore allege that they would not have suffered the
damages but for the (a) wrongful arrest; (b) criminal trial; (c) unjustifiable convictions
and sentence s; (d) wrongful, unreasonable delay and/or refusal and/or failure to
properly deal with the first respondent’s appeal, despite his efforts to compel the State
to do so; and (e) the fact that during the entire period that the first respondent was
awaiting the finalization of the appeal, he was precluded from generating any income.
The respondents accordingly plead that they suffered the damages as set out below:
First Respondent:
‘Loss of income: R 300 000 000.00
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lnjuria due to wrongful arrest and prosecution: R 20 000 000.00
Pain and suffering and loss of amenities of life: R 10 000 000.00
Contumelies R 10 000 000.00.’
Second Respondent:
‘Loss of maintenance and support: R 50 000 000.00
Pain and suffering: R 10 000 000.00.’
The respondents consequently claim that the first respondent is entitled to payment of
R340 000 000, and the second respondent to payment of R80 000 000, jointly and
severally, from the appellants, the one paying the others to be absolved.
Special plea of prescription
[10] The appellants’ special plea of prescription is directed at: (a) the third arrest of
the first respondent, which occurred on or before 6 September 1994 ; (b) the alleged
malicious prosecution of the first respondent, which commenced during September
1994 and was finalized prior to December 1998; and (c) the fact that, on the
respondents’ allegations, by 31 December 199 8, servants of the Minister of Justice
were aware that they could not compile a proper record for the prosecution of the
appeal. The appellants c onsequently contend that the respondents ’ claims, as
pleaded in the particulars of claim, have prescribed as the summons was only issued
in June 2016, which is more than three years after the alleged unlawful conduct relied
upon.
[11] The high court dismissed the special plea of prescription.4 Its reasoning is terse
and amounts to this:
‘From a conspectus of the particulars of claim, the causes of action relied upon are broad and
covered different alleged actions and omissions of various [appellants] who have been cited
in this matter.
…
What is definitive in determining this matter is the fact that the [respondents] are not relying
on a single self -standing claim based on unlawful arrest. What is clear is that there was a
4 The high court made an order, in terms of rule 33(4) of the Uniform Rules of Court, separating the
determination of the special plea and a legal point ( plea of non -joinder) from that of the merits and
quantum. The parties had entered into a prior agreement that the merits and quantum be separated .
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chain of events that followed the initial arrest, and which culminated in the appeal being
upheld. This accords with the adequate cause test espoused by Neetling et al.
I consequently find that there is a sufficiently close and continuous connection between the
alleged conduct of the [first appellant] through to that of the [third appellant] and the
consequences complained of, which only terminated on 18 June 2015. Prescription in my
view, only started running after that.’ (Footnotes omitted.)
[12] The question raised by the plea of non-joinder was whether any of the
appellants could be held liable for the alleged malicious prosecution of the first
respondent, instead of the NPA or the NDPP, which had not been joined as parties to
the action. In supplementary reasons, the high court held that it is ‘not persuaded that
the complaint of non-joinder is based on legal substance ’ because s 179 of the
Constitution:5
‘[C]ould not be any clearer in so far as the functionary who bears responsibility for the actions
of the prosecuting authority. At any rate what is pleaded is that the clerk of the court (“the
appeals clerk at the Johannesburg Regional Court”) was unable to compil e a record for
purposes of prosecuting the intended appeal by the [respondents]. The clerk of the court also
resorts under the Minister of Justice.’ (Footnote omitted.)
[13] The high court dismissed both the special plea of prescription and the plea of
non-joinder and reserved the costs. The appellants appeal against both these orders.
They do so with the leave of the high court.
Analysis
[14] The claims of the respondents are premised on the unlawful arrest and
detention of the first respondent ; his malicious prosecution; and the inordinate delay
in the finalization of the appeal noted by him against his conviction and sentence. The
respondents contend, to the contrary, that this construction of the particulars of claim
ignores the allegation that their claim is based on a series of wrongs committed during
the period from 1994 to June 2015 , and that during that period, the first respondent
5 Section 179(6) of the Constitution provides:
‘The Cabinet member responsible for the administration of justice must exercise final responsibility over the
prosecuting authority.’
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was prohibited from earning money. However, during argument in the appeal, counsel
for the respondents conceded that, despite the formulation of their pleaded claims:
(a) the third arrest of the first respondent in 1994, the criminal charges against him,
and the subsequent criminal trial were neither unlawful nor malicious;
(b) the bail conditions precluding the first respondent from leaving South Africa ,
pending the finalization of the trial and the appeal, were not unlawful.
(c) the decision of the Minister of Home Affairs to issue the first respondent with
the s 41(1) permit prohibit ing him from taking up employment, or conducting a
business in South Africa pending the conclusion of the criminal trial was not unlawful.
[15] It was accordingly conceded that the respondents’ claim against the Minister of
Police could not be sustained . Counsel for the respondents also accepted that the
particulars of claim do es not contain a damages claim against the Minister of Home
Affairs, despite the allegation that the inordinate delay in preparing the appeal record
rendered the prohibition, by the Minister of Home Affairs, against the first respondent
being employed or conducting a business pending the conclusion of the criminal
proceedings, unlawful. It was also accepted, during argument in the appeal, that the
respondents have not laid any basis, in their particulars of claim , for the following
heads of damages: injuria due to wrongful arrest and prosecution; pain and suffering,
loss of amenities of life and contumelia in respect of the first respondent; and loss of
maintenance and support and pain and suffering in respect of the second respondent.
[16] Consequently, the respondents’ only remaining claim is one for loss of income
against the Minister of Justice because of the purported ‘wrongful, unreasonable delay
and/or refusal and/or fa ilure to properly deal with the first [respondent’s] appeal,
despite the first [respondent’s] efforts to compel the state to do so ’. And ‘that during
the entire period that the first [respondent] was awaiting the finalization of the appeal
he was precluded from generating an income’. Thus, as things stand, the only question
for determination in the appeal is whether this claim has prescribed.
[17] However, before commencing with that determination, I make the following
observations arising from the concessions made on behalf of the respondents during
argument in the appeal. The respondents’ claim has been described as a broad catch-
all one directed at the three appellants and their servants, ranging from members of
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the police and the prosecutorial services, who were involved in the decision to proceed
with the arrest and criminal charges , to the presiding magistrate and the clerk of the
regional court (all acting in the course and scope of their employment). The particulars
of claim are difficult to comprehend even though it is prefaced by a ‘summary
overview’. This summary has not made it any easier to identify, in each instance, the
respondents’ cause of action.
[18] The particulars of claim also does not comply with rule 18 of the Uniform Rules
of Court. Instead of pleading a concise statement of facts with sufficient particularity
to enable the appellants to answer thereto, the particulars of claim are impermissibly
interspersed with chunks of evidence. The damages claimed are also un clear and
imprecise. Given these deficiencies in the particulars of claim, it is difficult to see how
the respective appellants are supposed to understand the basis of the action, and the
damages sought in each instance against each of them. It is, therefore, unsurprising
that counsel for the respondents readily conceded, during argument in the appeal, that
‘the particulars of claim are not a model of clarity’.
[19] In view of the respondents’ concessions referenced above, the cause of action
ultimately reduced itself to (and on which the special plea falls to be determined) ‘the
unlawful conduct of the employees of the Minister of Justice in failing to deal with the
appeal without delay’.
[20] In terms of s 11(d) of the Prescription Act 68 of 1969 (the Act), the debts that
form the subject-matter of the respondents’ claim s prescribe within three years from
the date that prescription commences to run. Section 12(1) of the Act provides that
prescription commences to run as soon as the debt in question is due, ie when it is
owing and payable. Section 12(3) of the Act provides that ‘[a] debt shall not be due
until the creditor has knowledge of the identity of the debtor and the facts from which
the debt arises: Provided that a creditor shall be deemed to have such knowledge if
he could have acquired it by exercising reasonable care’. In other words, a debt
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becomes due when the creditor or claimant acquires a complete cause of action for
its recovery. This is the entire set of facts which a plaintiff must prove to succeed.6
[21] On the argument advanced by the appellants, prescription in relation to the
unlawful conduct of the servants of the Minister of Justice commenced running on 31
December 1998, as, on the pleadings, the respondents were aware by that stage of
the fact that the servants of the Minister of Justice knew that ‘it was impossible to
provide a proper record suitable for the appeal’. There is thus much to be said for the
contention that prescription commenced to run on that date.
[22] However, there may well be a further (and perhaps narrower) basis upon which
the special plea can be decided. The respondents plead in the particulars of claim that,
in April 2012, the first respondent made application to the Gauteng Division of the High
Court, Johannesburg, for an order sett ing aside his conviction and sentence due to
the failure of the DPP to prosecute the appeal. This application was dismissed on 18
April 2013.
[23] In support of that application, it would have been necessary for the first
respondent to have made out a case that the DPP (and the servants of the Minister of
Justice) acted unlawfully and in breach of their legal duty to ensure that the appeal
was prosecuted without undue delay. This signifies that by the date of the launch of
this application in April 2012, the first respondent had all the necessary facts at his
disposal, sufficient to found a cause of action. Prescription in respect of this claim
would, therefore, have commenced to run at the latest on the day after this application
was launched in April 2012 . And, it would have prescribed three years later, in May
2015. Accordingly, on the most generous construction for the respondents, by the time
the respondents issued summons in respect of this matter on 17 June 2016, the
respondents’ claim had prescribed, more than a year earlier.
[24] For these reasons, the appeal against the dismissal of the special plea must be
upheld.
6 Cape Town Municipality and Another v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) at 321; Santam
v Ethwar [1998] ZASCA 102; 1999 (2) SA 244 (SCA).
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[25] In the result, the following order is made:
1 The appeal is upheld with costs, including those of two counsel.
2 The order of the high court is set aside and replaced with the following:
‘The special plea of prescription is upheld with costs, including those of two counsel
where so employed.’
________________________
F KATHREE-SETILOANE
ACTING JUDGE OF APPEAL
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Appearances
For the appellant: M M W van Zyl SC with C G V O Sevenster
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein
For the respondent: T Möller
Instructed by: Lombard & Kriek Inc, Tygervalley
Honey Attorneys, Bloemfontein