Kontsiwe v Minister of Police (73161/16) [2021] ZAGPPHC 82 (9 February 2021)

Kontsiwe v Minister of Police (73161/16) [2021] ZAGPPHC 82 (9 February 2021)

The court found that the plaintiff's claims for unlawful arrest and detention had prescribed because the summons was served after the three-year prescription period had expired, and prescription is interrupted only upon service, not issuance, of summons. Therefore, condonation for failure to serve the statutory notice in respect of these claims was precluded. Regarding malicious prosecution, the court determined that the cause of action only arose when the criminal proceedings were terminated in the plaintiff's favour, which was plausibly on 24 April 2018. The statutory notice served in 2015 did not constitute proper notice for malicious prosecution, as the debt was not yet due and the...

Citation
[2021] ZAGPPHC 82
Parties
Plaintiff: Kontsiwe Xolile; Defendant: Minister of Police
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 February 2021
Case Number
73161/16
Procedural Posture
Civil Application / Application for Condonation of Late Statutory Notice Under S3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act
Outcome
Condonation granted for failure to serve statutory notice in respect of malicious prosecution; condonation refused for claims of assault and unlawful arrest and detention.
Judges
SK Hassim
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Prescription, Malicious Prosecution, Unlawful Arrest, Condonation, Statutory Notice
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Act Prescription Malicious Prosecution Unlawful Arrest Condonation Statutory Notice

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Parties

Kontsiwe Xolile

Plaintiff

Minister of Police

Defendant

Procedural Posture

Civil Application / Application for Condonation of Late Statutory Notice Under S3(4) of the Institution of Legal Proceedings Against Certain Organs of State Act

Legal Issues

  1. 1 Has the plaintiff's claim for compensation for unlawful arrest and detention prescribed under the Prescription Act?
  2. 2 Did the plaintiff serve the statutory notice required by section 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act timeously for each claim?
  3. 3 Is the plaintiff entitled to condonation for failure to serve the statutory notice in respect of malicious prosecution?

Ratio Decidendi

The court found that the plaintiff's claims for unlawful arrest and detention had prescribed because the summons was served after the three-year prescription period had expired, and prescription is interrupted only upon service, not issuance, of summons. Therefore, condonation for failure to serve the statutory notice in respect of these claims was precluded. Regarding malicious prosecution, the court determined that the cause of action only arose when the criminal proceedings were terminated in the plaintiff's favour, which was plausibly on 24 April 2018. The statutory notice served in 2015 did not constitute proper notice for malicious prosecution, as the debt was not yet due and the...

Court Disposition

Condonation granted for failure to serve statutory notice in respect of malicious prosecution; condonation refused for claims of assault and unlawful arrest and detention.

Orders

  • The plaintiff's failure to serve the notice contemplated in section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act in respect of his claim for compensation for malicious prosecution is condoned.
  • The plaintiff must serve the notice contemplated in section 3(2)(a) of the Act in respect of his claim for compensation for malicious prosecution within fifteen (15) days of this order.