Barnard NO and Others v Imperial Bank Ltd and Another (2008/12164) [2011] ZAGPJHC 106; 2012 (5) SA 542 (GSJ) (1 November 2011)

IN THE SOUTH GAUTENG HIGH COURT

JOHANNESBURG

REPORTABLE

(In the electronic reports only)

CASE NO : 2010/11460

DATE:07/09/2011

In the matter between:

SHAI DINTWENG HLATHI …..............................................................PLAINTIFF

and

CITY OF JOHANNESBURG METROPOLITAN COUNCIL....FIRST DEFENDANT

MINISTER OF SAFETY AND SECURITY …....................SECOND DEFENDANT

JERRY SKHOSANA...............................................................THIRD DEFENDANT

DIRECTOR OF PUBLIC PROSECUTIONS …..................FOURTH DEFENDANT

MATHENJWA M.R.. …...............................................................FIRTH DEFENDANT

LAMPRECHT A.J.. …................................................................SIXTH DEFENDANT

JUDGMENT

WILLIS J:

[1] On 31 August, 2011 Boruchowitz J made an order that the stated case on the first defendant’s second special plea as between the plaintiff and the first defendant should proceed forthwith and that the main action be postponed sine die. The matter has come before me as a special case in terms of Rule 33 of the Uniform Rules of Court for adjudication on a point of law.

[2] The following facts were agreed upon for purposes of the second special plea only:

The plaintiff was wrongfully and unlawfully assaulted by members of the Johannesburg Metro Police on 3 June 2006.

The plaintiff also was arrested on 3 June 2006 without a warrant and without reasonable and probable cause, therefore wrongfully and unlawfully, on charges of reckless and negligent driving and assault. He was detained and was released on 4 June 2006.

The plaintiff suffered damages in the form of medical treatment as well as pain suffering and contumelia in respect of the assault, being the first cause of action.

The plaintiff also suffered damages in the form of having had to pay legal fees as well as pain suffering and contumelia in respect of the assault, being the second cause of action.

This summons was issued on 26 March 2010 and served on the first defendant on 31 March 2010.

When the plaintiff was assaulted and arrested he was aware that he was assaulted and arrested by members of the Johannesburg Metro Police.

When he was assaulted and arrested he had knowledge that the members of the Johannesburg Metro Police acted in the course and scope of their duties with the first defendant, alternatively he could have acquired such knowledge within at most one week after the arrest by the exercise of reasonable care.

The plaintiff was discharged on all the charges he was arrested for on 10 June 2009, after evidence was lead on behalf of the state.

QUESTIONS OF LAW IN DISPUTE

Whether the plaintiff’s claims have become prescribed prior to service of summons.

THE FIRST DEFENDANT’S CONTENTIONS

The first defendant contends that the plaintiff had knowledge of the minimum facts to institute action against the first defendant for both claims on the 3rd or 4th of June 2006, or could have had such knowledge within at most one week thereafter.

Questions of unlawfulness and wrongfulness are questions of law and not fact.

Both an arrest and an assault is in any event prima facie unlawful and wrongful, or there at least exists a factual presumption to be rebutted by the first defendant that such assault was not wrongful and unlawful.

The plaintiff did not need to have ‘knowledge’ of the unlawfulness and wrongfulness of the assault and arrest before prescription started to run.

Prescription started to run on 3 and 4 June 2006 (or at best for the plaintiff from 11 June 2006).

The applicable prescription period is 3 years.

Therefore both claims/debts became prescribed in June 2009, before issue and service of the summons.

THE PLAINTIFF’S CONTENTIONS

Prescription of the plaintiff’s claim will start running from the day in which he was discharged in a Court of law, namely, the 10th of June 2009 and therefore the summons was issued before his claims became prescribed.

The plaintiff knew of the unlawfulness and wrongfulness of the action of members of the Johannesburg Metro Police at the time of the alleged incident, the plaintiff wanted the criminal proceedings brought against him to conclude first before instituting the action against them, the said case was concluded in his favour on the 10th June 2009 and therefore prescription will start to run on the said date when the Court cleared him of the allegations brought against

him.

AD PARAGRAPHS 10 TO 16 THEREOF:

The content of these paragraphs are denied by the plaintiff.

The plaintiff contends that:

The plaintiff was arrested and detained for reckless and negligent driving, the said arrest and subsequent detention being executed at the plaintiff's home.

The plaintiff was assaulted on the scene of the motor vehicle accident as well as at home after he left the scene of the motor vehicle accident due to his dissatisfaction with members of the Metro Police Services conduct at the scene of the accident.

The plaintiff’s arrest and detention was contended by all the evidence in the police docket to be lawful and no evidence suggested otherwise. The plaintiff's assault was also contended in the docket to not be assault but reasonable force incurred to affect the arrest of the plaintiff who allegedly left the scene of a crime without permission to do so and no evidence suggested otherwise.

Evidence contrary to the allegations against the plaintiff during the criminal trial and subsequent discharge as a result thereof was a material fact which was necessary to support the plaintiff’s causes of action as these causes of action only became sustainable after evidence in support thereof was elicited during the criminal trial.

It is contended that the mere suspicion not amounting to conviction or belief by the plaintiff of unlawful arrest and assault, although justifiably inferred from attendant circumstances, does not amount to knowledge as the plaintiff's belief as such belief without apparent warrant cannot be construed as knowledge of unlawfulness.

The plaintiff had not been dilatory in instituting proceedings as he only obtained the knowledge and the facts necessary to support his cause of action by first pursuing the conclusion of criminal proceedings against him. Prescription therefore only started on 10 June 2009 when plaintiff was discharged on all charges.

Summons was served on 31 March 2010 and as such the plaintiffs claim has not prescribed.

[3] The relevant provisions of the Prescription Act No. 68 of 1969 (sections 12(1) and 12(3)) read as follows:

12 When prescription begins to run

Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due.

…

A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.

[4] Counsel for the parties referred me to various cases as ‘aids to interpretation’: Minister of Finance and Others v Gore N.O.;1 Nedcor Bank Beperk v Regering van die Republiek van Suid-Afrika;2 Minister of Law and Order and Others v Hurley and Another3and Brand v Minister of Justice and Another.4 Interesting though these cases may be, there are other cases directly in point which facilitate the determination of the matter.

[5] In Thompson and Another v Minister of Police and Another5 Eksteen J distinguished between a malicious arrest and a wrongful arrest (in which motive or want of reasonable and probable cause are legally irrelevant).6 He held that in the case of a wrongful arrest (arrest without legal justification) the cause of action arises as soon as the unlawful

arrest has been made.7 This decision was approved in this division by Margo J in the case of Newman v Prinsloo and Another8 and by Nestadt J (as he then was) in the case of Mgube v Minister of Police.9 Both cases also approved the distinction between a malicious arrest and a wrongful arrest (arrest without legal justification).10

[6] It appears from the stated case that the plaintiff relies on wrongful arrest (arrest without legal justification) rather than a malicious arrest. Mr Swanepoel, who appeared for the plaintiff, accepted that this was indeed the case. The plaintiff also relies on an alleged assault.

[7] In Xaba v Ekurhuleni Metropolitan Municipality11the plaintiff instituted an action having facts remarkably similar to those in casu. My brother, Moshidi found that the claim had

prescribed.

[8] In Rex v Faithfull & Gray12 Solomon J (as he then was) with whom Wessels J (as he then was) concurred said:

Of course, in ordinary circumstances the court will abide its decisions; stare decisis is a good rule to follow. But where a court is satisfied that its previous decision was wrong, and more particularly where the point was not argued, then I think it is not only competent for the court, but it is its duty in such a case not to abide by its previous decision, but to overrule it.13

This dictum was expressly approved in Harris & Others v Minister of Interior & Another.14. The Harris case was deeply concerned with the question of precedent.15 It is also instructive to read the case of Fellner v Minister of Interior,16 another case which was much concerned with the question of precedent. Coetzee J (as he then was) seems to have enjoyed giving an overview of the topic, while being astute to not ‘re-inventing the wheel’ in Trade Fairs and Promotions (Pty) Ltd v Thomson and Another.17 In that judgment Coetzee J refers to Professor Ellison Kahn’s “fascination” with the subject and the ‘vast mass of judicial material’ which he contributed to the subject in the South African Law Journal and elsewhere.18 A single-judge court must follow a decision of a two-judge (or more) court in its own division or in a division having co-ordinate

jurisdiction.19

[9] The rule of stare decisis requires that the first defendant’s special plea of prescription must succeed in respect of the claim for wrongful arrest (arrest without legal justification). In any event, I am far from convinced that the Thompson and Another v Minister of Police, Newman v Prinsloo, Mgube v Minister of Police and Xaba v Ekurhuleni Metropolitan Municipality cases were wrongly decided.

[10] When it comes to the plaintiff’s claim for unlawful assault, the first defendant’s case is even stronger. Everyone knows that the police are not allowed to assault persons, except, of course when they are acting in self-defence or where they use such force as may be reasonably necessary to effect a lawful arrest. In such cases the element of unlawfulness is absent in the conduct of the police. From the very beginning of the alleged unlawful acts of the police officers, the plaintiff could have been in no doubt as to the facts upon which his claim for unlawful assault would have been based. Similar views were expressed by Moshidi J in the Xaba v Ekurhuleni Metropolitan Municipality case. In respect of the special plea of prescription relating to the claim for assault the first defendant must succeed as well.

[11] Judgment is given in favour of the first defendant against the plaintiff. The following is the order of the court:

(i) The first defendant’s second special plea of prescription in respect of both claims of the plaintiff is upheld;

(ii) The plaintiff’s claims (Claim1 and Claim2) against the first defendant are dismissed;

(iii) The plaintiff is to pay the first defendant’s costs in the action.

DATED AT JOHANNESBURG THIS 7TH DAY of SEPTEMBER, 2011

________________________

N.P. WILLIS

JUDGE OF THE HIGH COURT

Counsel for the plaintiff: Adv. A.J. Swanepoel

Counsel for the first defendant: Adv. J.L.Engelbrecht

Attorneys for the plaintiff: H.C. Makhubele

Attorneys for the first defendant: Webber Wentzel

Date of hearing: 31 August 2011

Date of judgment: 7 September 2011

1 2007 (1) SA 111 (SCA)

2 [2000] ZASCA 154; 2001 (1) SA 987 (SCA)

3 1986 (3) SA 568 (A)

4 1959 (4) SA 712 (A)

5 1971 (1) SA 371 (E)

6 See 372B – 376B

7 At 375G

8 1973 (1) SA 125 at 127C – D

9 1978 (4) SA 959 (W) at 960H – 961A

10 In the Newman case at 127G – 128A and in the Mgube case at 960H – 961A

11 2011 JDR 0349 (GSJ)

12 1907 TS 1079; Smith J agreed with Solomon and Wessels JJ but delivered a separate judgment.

13 At 1081

14 1952 (2) SA 452 (A) at 453

15 See 452B-454C

16 1954 (4) SA 523 (A)

17 1984 (4) 149 (T) at 183I-187H

18 See at 184G-185D

19 See South African Farmers’ Representatives v Bonthuys 1930 CPD 132 at 135; Ex parte Hamer 1946 OPD 163 at 169; Hughes v Savvas and Hira 1931 TPD 396 at 241 and Hahlo, H.R and Kahn, E. 1960. The Union of South Africa, the Development of its Laws and Constitution. Cape Town: Juta & Company at p30.