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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: 804/2013

DATE HEARD: 27/10/2014

DATE DELIVERED: 20/11/2014

In the matter between

LINDILE SOGA......................................................................................................PLAINTIFF

and

MINISTER OF POLICE.......................................................................FIRST DEFENDANT

SERGEANT CAGA...........................................................................SECOND DEFENDANT

JUDGMENT

ROBERSON J:-

[1] The plaintiff instituted action against the defendants for damages arising from his alleged wrongful arrest and detention, the damages consisting of general damages and the loss of a day’s earnings.  It was not in dispute that on 25 June 2012 the second defendant and other members of the South African Police Service (the SAPS), acting in the course and scope of their employment with the first defendant, arrested the plaintiff without a warrant.  He was taken to the magistrate’s court and released after eight hours. The first defendant delivered a special plea to the effect that the plaintiff had failed to comply with s 3 (2) (a) and s 4 (1) (a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act). The second defendant delivered a special plea to the effect that the plaintiff had failed to comply with s 3 (2) (a) read with s 1 (1) (g) and s 4 (1) (f) of the Act. It was agreed that the special pleas would be argued separately from the merits.

[2] The relevant provisions of s 3 of the Act are:

“ 3 Notice of intended legal proceedings to be given to organ of state

(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-

(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings-

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).

(2) A notice must-

(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4 (1); and

(b) briefly set out-

(i) the facts giving rise to the debt; and

(iii) (ii)such particulars of such debt as are within the knowledge of the creditor.

(3) For purposes of subsection (2) (a)-

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b)……………………….

S 4 of the Act prescribes the modes of service of the notice and the persons upon whom service should be effected.

[3] The first defendant’s complaint was two-fold:  the notice had not been served within six months of the debt becoming due and it had not been served on the correct person, namely the National Commissioner of Police.  The second defendant’s complaint was that no notice had been served at all.

[4] In his replication to the first defendant’s plea, the plaintiff pleaded that it was only after charges were withdrawn against him on 9 July 2012 and he had consulted with his attorney towards the end of August 2012 that he became aware that a debt was due to him as a result of the wrongful arrest.  He admitted that the notice was not served on the National Commissioner but pleaded that service on the Provincial Commissioner of the SAPS was permitted in terms of s 5 (1) (b) (ii) of the Act.  He pleaded further that following service of the notice the defendants advised his attorneys that the notice had been forwarded to the Mount Road Civil Litigation Centre for the purpose of investigation of the claim.  It was placed on record that the notice dated 1 February 2013 was received on 13 February 2013. 

[5] In his replication to the second defendant’s special plea, the plaintiff admitted that no notice had been sent but pleaded that no such notice was required because the second defendant was not an organ of state.

First defendant’s special plea

[6] The plaintiff appears to rely on s 3 (3) (a) of the Act in asserting that he only became aware that the debt was due towards the end of August 2012.  It was submitted therefore that the notice had been given within six months from the date on which the debt became due.

[7] In Thompson and Another v Minister of Police and Another 1971 (1) SA 371 (E) the plaintiffs were arrested on 10 April 1967.  At 375G Eksteen J (as he then was) said:

“The injury lies in the arrest without legal justification, and the cause of action arises as soon as that illegal arrest has been made.  In the present case, therefore, the cause of action in the main claims arose on 10^th April, 1967.”

[8] In Madinda v Minister of Safety and Security [2008] ZASCA 34; [2008] 3 All SA 143 (SCA) the appellant’s claim for damages arose from an unlawful arrest, detention and assault allegedly perpetrated on 11 September 2004. At para [5] Heher JA said:

“The period of six months afforded a plaintiff by section 3 (2) (a) of the Act would, in the absence of factors relevant by reason of section 3 (3) (a), probably have ended at midnight on 11 March 2005.”

[9] In Feza Mbodla v MEC for Health [2012] ZAECMHC 17 Griffiths J remarked on the similarity of the wording in s 3 (3) (a) of the Act and s 12 (3) of the Prescription Act 68 of 1969[1] and said at para [14]:

“Because of the similarity of the wording between these two subsections, in my view the cases which deal with section 12 (3) of the Prescription Act must be regarded as being highly persuasive when dealing with section 3 (3) of the Act.”

[10] In Drennan Maud & Partners v Pennington Town Board [1998] ZASCA 29; 1998 (3) SA 200 (SCA) at 209F-G, Olivier JA said:

“Section 12 (3) of the [Prescription] Act provides that a creditor shall be deemed to have the required knowledge ‘if he could have acquired it by exercising reasonable care’.  In my view, the requirement ‘exercising reasonable care’ requires diligence not only in the ascertainment of the facts underlying the debt, but also in relation to the evaluation and significance of those facts.  This means that the creditor is deemed to have the requisite knowledge if a reasonable person in his position would have deduced the identity of the debtor and the facts from which the debt arises.”

[11] In my view, in the present matter a reasonable person in the position of the plaintiff would have had knowledge of the identity of the debtor at the time of the arrest.  In his replication to the plea on the merits, the plaintiff pleaded that he had been telephonically called by the second defendant to come to see him at the police station and the arrest took place at Humewood police station.  He therefore knew, at the time of his arrest, the identity of the second defendant and that the second defendant was a member and employee of the SAPS, the relevant organ of state.  He would not have learned the identity of the debtors from his attorney.

[12] As to the facts giving rise to the debt, the plaintiff would have been aware at the time of his arrest and detention that he had been arrested and detained, and that, once he was released, he had lost a day’s income. These were not facts he would have learned from his attorney.

[13] In Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) at para [16] to [18] Van Heerden JA said the following (footnotes omitted):

“16] I am of the view that the High Court erred in this finding. For the purposes of the [Prescription] 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 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.

[17] In a delictual claim, the requirements of fault and unlawfulness do not constitute factual ingredients of the cause of action, but are legal conclusions to be drawn from the facts:

'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.

(Emphasis added.)

[18] In the words of this Court in Van Staden v Fourie:

'Artikel 12(3) van die Verjaringswet stel egter nie die aanvang van verjaring uit totdat die skuldeiser die volle omvang van sy regte uitgevind het nie. Die toegewing wat die Verjaringswet in hierdie verband maak, is beperk tot kennis van "die feite waaruit die skuld ontstaan".' “

[14] In my view there is nothing in the plaintiff’s replication to the first defendant’s special plea which indicates that at the time of his arrest he did not have knowledge of the identity of the debtors or the facts giving rise to the debt.  There was nothing in his plea which indicated that he learned the identity of the debtors and the facts giving rise to the debt from his attorney.  He did not plead that he was wilfully prevented by the defendants from acquiring such knowledge.  His averment that he only learned after consulting his attorney that a debt was due was therefore not substantiated in the replication.

[15] In the result I find that the s 3 (1) (a) notice was not served within six months from the date on which the debt became due.  It is therefore not necessary for me to consider the issue of service of the notice on the National Commissioner.  The first special plea must succeed.

Second defendant’s special plea

[16] In terms of S 1 (1) of the Act an ‘organ of state’ means –

(a)  any national or provincial department;

(b)  ……………………………

(c)  ……………………………

(d)  ……………………………

(e)  ……………………………

(f)   …………………………..

(g)  any person for whose debt an organ of state contemplated in paragraphs (a) to (f) is liable;

[17] The first defendant is the political head of a national department.  In my view the second defendant is a person contemplated in s 1 (1) (g).  The debt due to the plaintiff by the second defendant is alleged to have arisen from an act performed by the second defendant in the course and scope of his employment, rendering the first defendant vicariously liable.  It follows that a s 3 (1) notice should have been served on the second defendant.  The second defendant’s special plea must also succeed.

[18] The following order will issue:

The first and second defendants’ special pleas are upheld with costs.

______________

J M ROBERSON

JUDGE OF THE HIGH COURT 

Appearances:

For the Plaintiff: Adv SG Poswa, instructed by Lexicon Attorneys, Port Elizabeth

For the Defendant: Adv I Bands, instructed the State Attorney, Port Elizabeth

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