Kruger V Director of Public Prosecutions; In re: Kruger V Director of Public Prosecutions (37681/2011) [2017] ZAGPPHC 376 (21 June 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 37681/2011

ARRIE

WILLEM

KRUGER APPLICANT

and

THE

DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENT

IN RE:

ARRIE

WILLEM KRUGER

PLAINTIFF

AND

THE

DIRECTOR OF PUBLIC

PROSECUTIONS DEFENDANT

JUDGMENT (APPLICATION FOR LEAVE TO APPEAL)

STRYDOMAJ:

INTRODUCTORY

REMARKS

[1] This is an Application for leave to appeal, to the full bench of this Division of the High Court, alternatively the Supreme Court of Appeal, against the whole of the Judgment and Cost Order which I delivered under the above case number on 29 April 2016.[1]

[2] The matter that came before me, against which the Application for Leave to Appeal is directed, was for adjudication of the Respondent's (Defendant in the action) First Special Plea of prescription against the Applicant's (Plaintiff in the action) claim for wrongful and malicious proceedings instigated against the Plaintiff by the prosecutors' action in the course and scope of their employment with the Defendant.

[3] I found in favour of the Respondent and dismissed the Applicant’s claim with cost.[2]

REQUIREMENTS

FOR LEAVE TO APPEAL

[4] The legal principals governing an Application for Leave to Appeal can be summarised as follows:

1. As a general rule, Leave to Appeal can only be granted if the Applicant has a reasonable prospect of success on appeal.[3] This means that a reasonable probability should exist that another court may come to a different conclusion from that arrived at by me.[4]

2. A mere possibility (in contradistinction to probability) that another Court will come to a different conclusion is not sufficient to justify the grant of Leave to Appeal.[5]

3. It is not the reasons against which the applications for leave stands, but against the court order. Thus, if the order was correct, the reasons for the judgment makes no difference at all.[6]

4. The importance of a matter for a party is only one factor amongst others to consider for granting Leave to Appeal.[7]

5. Where a Court is of the view that its judgment is correct it should not grant leave to appeal.[8]

6. Lastly, if there is reasonable prospect of success - the further test is - if leave to appeal is granted would it lead to a just and reasonably prompt resolution of the real issue between the parties.[9]

GROUNDS

FOR LEAVE TO APPEAL

[5] The Application for Leave to Appeal came before me on 26 September 2016, which application was opposed by the Respondent. The Applicant raised three grounds of appeal, and correctly in my view, abandoned the second ground of appeal at the hearing.

[6] The first ground of Appeal is that I erred in finding that the only facts which the Plaintiff had to have knowledge of, in order for him to be able to institute an action for malicious proceedings against the Defendant, was the fact that all charges against him were withdrawn on 13 October 2009.[10]

The third ground is that I erred in finding that the response of Mr Erasmus to a question I directed to him, being whether he could dispute that the defendant's attorney, Mr Olwage, shortly after he received a copy of the SAPS docket pertaining to the prosecution of the Plaintiff, made the same available to him; amounts to an admission that the Defendant did not wilfully prevent the Plaintiff from coming to know of the existence of the debt as envisaged by Section 12(2) of the Prescription Act, 1969 (Act no 68 of 1969). Ostensibly the argument is that Mr Olwage was not the Defendant but the Director of Public Prosecutions. There could have been merit in this argument if this was the Plaintiffs case on

the pleadings and/or the Plaintiff presented evidence in this regard. However on the Plaintiffs pleadings the Minister of Police (which was not before me) allegedly prevented the Plaintiff from coming to knowledge of the identity of the Defendant. The argument is, in any event, insufficient in itself to sustain a ground for appeal. The Plaintiff did not present any further evidence, other than that of Mr Kruger and Mr Erasmus, in support of the Plaintiff's claim in this regard. I have dealt with this evidence in my judgment. Neither of these witnesses were able to present any evidence that the Defendant prevented the Plaintiff from coming to know the identity of the Defendant. In fact, as I have indicated in my judgment, the Plaintiff had legal representation prior to the charges having been withdrawn against him on 13 October 2009 and accordingly adequate knowledge, to issue summons against the Minister of Police without the docket.[11]

FIRST

GROUND OF APPEAL

[7] It follows that the only ground to consider is the first ground of appeal. I have dealt comprehensively with this issue in my judgment with reference to the relevant authority I relied upon for my judgment. I am, and is still of view, that in accordance

with the said authority,[12] prescription began to run against the Plaintiff's claim form the time he had the minimum knowledge of the facts necessary to institute action against the Defendant. In paragraph [26] of my judgement I specifically rejected the submission by Mr Uys that the Plaintiff (or his legal team) only acquired knowledge of the facts from which the Plaintiffs claim arouse during the end of August 2012, after a copy of the SAPS docket pertaining to the arrest and detention of the Plaintiff, was received from the Defendant's attorneys of record; and that Prescription only began to run against the Plaintiff from the latter date.

[8] Counsel for the Applicant submitted that the Constitutional Court matter of Links v MEG of Health, Northern Cape,[13] substantially altered the legal position in respect of prescription. I am obviously bound by that matter in the event that it did indeed alter the legal position, as submitted by Mr Uys. I accordingly reserved judgment in order to study the

Constitutional Court matter and the relevance thereof to the matter I delivered judgment in. Mr Uys was of view that in the event I find that the Links matter do not influence my judgment, then the Plaintiffs Application for Leave to Appeal should not succeed.

[9] In the Links matter the appeal was against an order of a Judge from the Northern Cape Provincial Division of the High Court,[14]

"which related to the applicant's claim for damages against the respondent. The applicant's claim was held by the High Court to have prescribed. For that reason, the High Court dismissed the applicant's clam for condonation of his failure to comply with the requirements of section 3 of the Institution of Legal Proceedings Against certain Organs of State Act (Legal Proceedings Act).

[10] Although the High Court in the Links matter primarily dealt with condonation application, the relevance of the matter lies in the fact that the said Court was required to consider the prospects of success of the applicant on trial when it determined the application for condonation. Hence the consideration of the plea of prescription against his claim, by the aforesaid Court.

[11] I am of view that the Links matter is distinguishable, in at least the following respects, from the matter that came before me:

1. In the Links matter the Plaintiff's claim was based on professional negligence by the medical personal that treated him for an injury to the thumb of left hand. The matter that served before me dealt with unlawful and malicious prosecution.

2. In the Links matter the minimum information which the applicant required in order to institute an action was supplied and dependant on the evidence of an expert witness. The Honourable Constitutional Court formulated this as follows:

[42] However, in cases of this type, involving professional negligence, the party relying on prescription must at least show that the plaintiff was in possession of sufficient facts to cause them on reasonable grounds to think that the injuries were due to the fault of the medical staff. Until there are reasonable grounds for suspecting fault so as to cause the plaintiff to seek further advice, the claimant cannot be said to have knowledge of the facts from which the debt arises. [15]

[43] It is now appropriate to return to section 12(3) of the Prescription Act. That provision says that a debt shall not be deemed to be due and, therefor, prescription shall not commence to run "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.[16]

[45] In a claim for delictual liability based on the Aquinian action, negligence and causation are essential element of the cause of action. Negligence and, as this Court has held, causation have both factual and legal elements. Until the applicant hand knowledge of the facts that would have led him to think that the possibly there had been negligence and that this had caused his disability, he lacked knowledge of the necessary fact contemplated in section 12(3).[17]

[47] ....Without advice from a professional or expert in the medical profession, the applicant could not have known what had caused his condition.”[18]

In the matter that came before me, no expert witnesses was required before the plaintiff had the required minimum facts in order to institute action. In fact, the Applicant was at the time of withdrawal of the criminal charges against him, and at all relevant

times thereafter, represented by a legal team.

[12] In my view, the Constitutional Court in the Links matter did not alter the legal principals pertaining to prescription of a delictual claim. The Honourable Court merely indicated that in the circumstances, as was present in the Links matter, expert advice may be an essential element of the minimum facts that needs to be present before a party will have sufficient evidence in order to institute action and accordingly for prescription to commence.

[13] Accordingly, I am of view there are no prospects of success that another court will come to a different conclusion than the one I had come to.

ORDER

In view of the above facts and considerations I make the following order:

1. The Application for Leave to Appeal is dismissed;

2. The Applicant is ordered to pay the costs of the Respondent.

______

J.S.

STRYDOM ACTING

JUDGE

OF THE HIGH COURT

Appearances:

Counsel for the Applicant: Adv. PL Uys.

Instructed by:

Gildenhuys Malatji.

Counsel for the respondents: Adv. LA Pretorius.

Instructed by:

The State Attorneys: Pretoria.

[1] See: Application for leave to appeal.

[2] See : Judgment, page 20.

[3] Comp. LAWSA Vol 3 - par 360; Van Heerden v Cronwright 1985 2 SA 342 (T); Botes v Nedbank Ltd 1983 3 SA 27 (A).

[4] See: S v Skosana 1980 (4) SA 559 AD at 561F

[5] See: S v Caesar 1977 (2) SA 348 (A) at 350.

[6] Comp. Lipschitz NO v Saambou-Nasionale Bouvereniging1979 I SA 527 (T).

[7] Comp. Janit v Van den Heever NO [2000] 4 All SA 520 (W).

[8] Comp. S v Kgafela 2003 (5) SA 339 (SCA) at 340I-341C; Farlam et al: "Superior Court Practice" Al-50A.

[9] See : Zweni v Minister of Law and order 1993 (I) SA 523 (A) at 531.

[10] See: Notice of Appeal, par 1.1, page 2. The said Notice refers to 2016, which I presume is a typing error since my Judgment refers to 13 October 2009.

[11] I note that my Judgment incorrectly refers to the Minister of Defence, in paragraph 30.2, while it should have read the Minister

of Police. I do not deem it necessary to correct this because it is clearly a typing error and in the context clear reference to the Minister of Police was made.

[12] Compare paragraphs [6] to [8] of my judgment.

[13] Links v MEC of Health, Northern Cape [2016] ZACC 10

[14] Ibid, Par [l].

[15] Ibid, Par. [42]

[16] Ibid, Par. [43].

[17] Ibid, Par. [45].

[18] Ibid, Par. [47]