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[2013] ZAWCHC 73
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Patterson v Minister of Safety and Security and Another (4673/2005) [2013] ZAWCHC 73 (8 May 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: 4673/2005
In the matter between:
CHRISTOPHER PATTERSON
............................................................................
Plaintiff
v
THE MINISTER OF SAFETY
AND SECURITY
..........................................
1
st
Defendant
THE MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
......................................................
2
nd
Defendant
Court
:
Judge J I Cloete
Heard
:6
May 2013
Delivered
:8 May 2013
JUDGMENT
CLOETE J:
The only issue to be
determined at this stage is whether the plaintiff’s claims
arising from his alleged unlawful arrest
and detention during the
periods 2 October 1998 until 5 October 1998 and 27 August
2001 until 3 September
2001 have prescribed in terms of
s 11(d)
of the
Prescription Act 68 of 1969
, given that the defendants allege
that a period of more than three years elapsed from the date upon
which the plaintiff’s
cause of action arose prior to service
of summons upon them.
The salient facts may
briefly be summarised as follows. On 10 September 2004 the
plaintiff served a summons under case no:
7595/2004 on the first and
second defendants in which he sought payment of damages arising from
the aforementioned incidents
(the defendants do not dispute that the
plaintiff’s claim for alleged malicious prosecution arising
out of his discharge
in terms of
s 174
of the
Criminal
Procedure Act 51 of 1977
on 12 September 2003 has not
prescribed).
On 29 November 2004
the defendants delivered both a special plea and a plea. The
relevant defences raised in the special
plea were that: (a) the
claims arising from the incidents of 1998 and 2001 had prescribed;
and (b) the plaintiff had failed to
comply with
s 3
of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 in that he had not served the requisite
statutory notice
on the defendants setting out his intention to institute legal
proceedings against them within 6 months from
the date upon which
the debt became due.
On 25 April 2005
the plaintiff launched a substantive application in which he sought
condonation for his non-compliance with
s 3 aforesaid. Along
with the prayer for condonationthe plaintiff also sought an order
that he be granted leave to proceed
with the action already
instituted;
alternatively
leave to institute a fresh action
against the defendants; on such terms and conditions regarding
notice as the court might deem
appropriate. Costs were only sought
against the defendants in the event of their opposition to the
relief claimed.
In the plaintiff’s
affidavit filed in support of the application for condonation he set
out in detail the events leading
up to service of the summons on 10
September 2004. Annexed to his affidavit were copies of the
aforementioned summons as well
as the special plea and plea
delivered by the defendants. In addition the plaintiff dealt
comprehensively with the defences raised
in the special plea
including the defence of prescription. He also set out the reasons
for his failure to comply with s 3
and the grounds upon which
he contended that the defendants would not be unreasonably
prejudiced by such failure. The condonation
application was also
accompanied by a confirmatory affidavit from the plaintiff’s
attorney of record.
On 12 May 2005 the
defendants filed a notice of intention to abide the decision of the
court in the condonation application
provided that no costs were
sought against them.
On 17 May 2005
Traverso DJP made the following order:
‘
Having
heard Counsel for the Applicant, and having perused Respondent’s
[sic]
Notice
to Abide, it is ordered that:
Non-compliance with Sections
3(2)(a), 3(2)(b)(i), 3(2)(b)(ii) of Act No 40 of 2002 is condoned in
terms of Section 3(4)(a)
and 3(4)(b)
of Act No 40 of 2002;
Leave be granted to Applicant to
withdraw the Summons issued in the abovementioned matter.
Leave be granted in terms of
Section 3(4)(c) to institute fresh legal proceedings against First
and Second Respondents in the
abovementioned matter.’
[emphasis supplied]
The plaintiff thereafter
withdrew his action in accordance with paragraph 2 of the
aforementioned order and tendered the wasted
costs incurred.
On 8 June 2005 the
plaintiff served summons in this action on the defendants. It is
common cause that the particulars of
claim are identical to those
annexed to the previous summons (now withdrawn) save that the
plaintiff also pleaded the necessary
allegations pertaining to his
application for condonation and the order granted by Traverso DJP.
On 30 August 2005
the defendants delivered a plea to the merits of the plaintiff’s
claim only. All of the allegations
made by the plaintiff relating to
the application for condonation; the defendants’
non-opposition and notice to abide,
the terms of the order granted
by Traverso DJP; and the plaintiff’s allegation that ‘
all
the requirements as set out in Act 40 of 2002 have been complied
with by Plaintiff’
were admitted.
Just overseven years
later, on 27 September 2012, the defendants delivered a notice of
intention to amend their plea in which
they sought to again
introduce a plea of prescription in substantially the same terms as
that raised in their special plea in
the initial litigation. The
plaintiff objected to the notice of amendment and the defendants
brought a formal application for
leave to amend. For reasons that
are not apparent from the record the plaintiff then withdrew his
objection and tendered the
wasted costs occasioned by the
application for leave to amend.
After delivery of the
defendants’ amended plea the plaintiff delivered a
replication. In essence he pleaded that the first
and second
incidents of 1998 and 2001 formed part and parcel of one continuous
event, commencing on 2 October 1998 and terminating
on
12 September 2003, the latter date ‘
being the date
upon which the criminal case was concluded in favour of the
plaintiff, presenting the plaintiff with the facts
from which the
cause of action arose and the debt became due’.
In the
alternative the plaintiff pleaded that the order of Traverso DJP of
17 May 2005 ‘
was not granted to place the Plaintiff in
prescription or have the claim of the Plaintiff upon the institution
of timeous “fresh”
proceedings prescribe, as a
consequence of the order’.
Although inelegantly drafted it
is clear that what the plaintiff intended to convey was that it
could never have been a consequence
of the aforementioned order that
his claim would nonetheless, and at any later date, be found to have
prescribed. In effect this
amounts to a plea of
res judicata
.
The requisites for a
sustainable plea of
res judicata
because of an earlier
judgment
in personam
are that: (a) there has already been a
prior judgment; (b) in which the parties were the same; and (c) the
same point was in
issue: see
Jacobson v Havinga t/a Havingas
2001 (2) SA 177
(TPD) at 179E-F; Erasmus:
Superior Court Practice
at B1-144A-B. The prior judgment must have been final or constitute
a decision which has a final effect between the parties based
on the
merits of the point in issue: see
Rail Commuters’ Action
Group and Others v Transnet Ltd and Others
2006 (6) SA 68
(CPD)
at 74F-H. No issuecan be raised whether the prior judgment was
correct or not. Every judgment is presumed correct and can
only be
challenged on appeal: see
African Farms and Townships Ltd v Cape
Town Municipality
1963 (2) SA 555
(AD) at 564C-E.
Paragraph 3 of the
order of Traverso DJP stipulated that leave was granted to the
plaintiff in terms of
s 3(4)(c)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
to
institute fresh legal proceedings against the defendants.
S 3(4)
of the
aforementioned Act provides as follows:
‘
(4) (
a
)
If
an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2)(a), the creditor may apply
to a
court having jurisdiction for condonation of such failure.
(
b
)The court may grant an
application referred to in paragraph (
a
)
if it is
satisfied that
---
(i)
the debt has not been
extinguished by prescription
;
(ii) good cause exists for the
failure by the creditor; and
(iii) the organ of state was not
unreasonably prejudiced by the failure.
(
c
)
If an
application is granted in terms of paragraph (
b
)
,
the court may grant leave to institute the legal proceedings in
question, on such conditions regarding notice to the organ of
state
as the court may deem appropriate.’
[emphasis supplied]
Accordingly one of the
jurisdictional prerequisites to success in an application of that
nature is that the court must be satisfied
that the debt has not
been extinguished by prescription: see also
Minister of
Agriculture and Land Affairs v C J Rance (Pty) Ltd
2010 (4) SA
109
(SCA) at paragraphs [11] and [33]. Traverso DJP was clearly
satisfied that the debt had not prescribed and that the other
requirements
referred to had been met or she would not have granted
the order. In addition the plaintiff did not, of his own accord,
institute
new proceedings against the defendants three weeks
thereafter; he did so pursuant to leave granted by Traverso DJP
after having
considered and having satisfied herself that the
requirements set out in s 3(4)(b) had been met. Not only did
the defendants
choose not to oppose but to abide the decision of the
court in the condonation application; they also took no steps after
the
order was granted to prosecute an appeal (I express no view as
to whether or not in the particular circumstances it would have
been
open for them to do so, but that is not the point).I disagree with
the submission made by the defendants’ counsel
that Traverso
DJP “did not hand down a judgment on prescription”; by
clear implication that is precisely what she
did. And the
defendant’s reliance on
s 17(1)
of the
Prescription Act,
namely
that a court cannot
mero motu
raise the question of
prescription, is misplaced, since at no stage did this occur.
The order made by
Traverso DJP is clearly a judgment between the same parties and it
also relates to the same point in issue.
Prescription was
pertinently raised by the defendants in their earlier special plea;
that defence was raised and dealt with by
the plaintiff in his
application for condonation; and at the risk of repetition
condonation could not have been granted unless
Traverso DJP was
satisfied that the plaintiff’s claims had not prescribed.
During argument the
defendants’ counsel submitted that the defendants were
perfectly entitled to again raise prescription
as a defence in the
current proceedings. However that does not mean that it would be
successful; and for the reasons set out
above it is my conclusion
that this defence must fail.
In the result I make
the following order:
‘
The
defendants’ pleas of prescription in terms of
Section 11
of the
Prescription Act 68 of 1969
as contained in their amended plea filed
on 20 November 2012 are dismissed with costs.’
_______________
J I CLOETE