Minister of Police v Mbonane and Another (A44/2019; A45/2019) [2022] ZAMPMHC 12 (22 September 2022)

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG LOCAL SEAT

CASE NO A44/2019

CASE NO A45/2019

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: YES

REVISED

In the matter between:

MINISTER OF POLICE

APPELLANT

And

THANDI MBONANE

FIRST RESPONDENT

LETTY NOMHLEKABO SIBIYA

SECOND RESPONDENT

JUDGEMENT

MTIMUNYE AJ:

Introduction:

[1] This was firstly an application for consolidation of the two matters for the appeal to be heard simultaneously. The reasons advanced for it was that the issues in both matters were similar and both matters arose out of the same cause of action. This court granted the consolidation of the two matters. Secondly, the matters were for an appeal against an order of the magistrate sitting in the Magistrate’s Court KwaMhlanga for the dismissal of the special plea of prescription by the appellant with costs. The appeal was opposed by the respondents. The appeal was argued virtually by the parties’ legal representatives.

Background facts:

[2] The two Respondents instituted two separate actions in the magistrate court KwaMhlanga against the Appellant. The salient facts for these matters were common cause: The Respondents allege to have suffered psychological injuries; in the form of emotional distress resulting to severe depression disorder and clinical anger. The cause of action is said to have resulted from the Respondents witnessing the assault on Mr. Jan Ntambo Mbonane (Mr. Mbonane) by members of the SAPS metered out on him on the 15th of November 2015. Mr. Mbonane instituted a civil against the Appellant at the High Court in Pretoria for arrest, assault and detention. During 2016, the honorable Justice Thobane (then acting) found the Appellant liable for Mr. Mbonane damages. The Respondents allege further in their particulars of claim that they became aware of their causes of action on the 17th April 2018; after consultation with a psychologist.

[3] In their defense the Appellant raised two special pleas; none compliance with Section 3 of Act 40 of 2002 and prescription. On the 2nd of August 2019 the learned magistrate granted judgments’ and orders dismissing both special pleas with cost. It was that ruling that prompted the Appellant to lodge the appeals before this court.

Grounds of appeal:

[4] At issue in this appeal was whether the court a quo erred and /or misdirected in finding that:

1. the Respondents’ cause of action for psychological injuries arose on the 17th of April 2018 when they consulted with a psychologist and not on 15th of November 2015 when the Respondents witnessed the assault on Mr. Mbonane;

2. the Respondents’ claim for psychological injury has not prescribed.

3. the failure to comply with Section 3 of Act 40 of 2002 was not pursued further in this appeal.

Arguments by the Parties:

[5] Advocate Rantho argued that the cause of action for both matters arose on the 15th of November 2015 and not on the 17th April 2018. She argued that the Respondents became aware of the conduct that caused the injuries on the 15/11/2015. They became aware of the debt and the cause of action arose on that date. The Respondents do not explain why they did not bring their action

together with the action of Mr. Mbonane. She argued that the prescription periods in the Prescription Act helps to maintain peace

in society by ensuring that disputes do not drag for indefinite periods[1]. She referred the court to the case of Mtokonya v Minister of Police (CCT200) (16) [2017] ZACC 33 2017 (11) BCLR 1443 (CC); 2018 (5) SA 22 (CC); where the Constitutional Court emphasized the importance of prescription and the vital role played by the time limits in bringing

certainty and stability to social and legal affairs. She argued that without the prescription periods, legal disputes have a potential to be drawn indefinitely and bringing uncertainty to the parties involved. She argued further that if this court allows the Respondents to bring actions at any time they wish then Appellant will be prejudiced and there will be no finality in matters. This was contrary to the provisions of Section 12(3) of the Prescription Act which refers specifically to the facts upon which the debt arises and

not the legal implications of such facts. She argued that the Respondents were at all times aware of the identity of the debtor and the facts from which the debt arises. They were traumatized on witnessing the assault and they were supposed to consult then. She argued that in the case of Mtokonya v Minister of Police (supra); the Constitutional Court held the knowledge of the legal conclusions or that the creditor has legal remedy is not required in section 12(3). Only the knowledge of the identity of the debtor and facts giving rise to the debt is required. She argued that the court a court’s findings were incorrect and should be interfered with by upholding the appeals with costs.

[6] Advocate Bothelele argued that the issue for decision by this court was when did prescription started to run in the matter. The First Respondent only experienced headaches after the incident and only bought aspirins. It was only after she was not healed that she sought for medical assistance. It was only on the 17/4/2018 when she was informed of the source of her headaches. That is the date she became aware of the cause of her headaches and prescription started to run on that date. The claim was a psychological claim and there was no way she could have known that the headaches were caused by witnessing the assault. This is a matter of evidence and the matter has not prescribed.

[7] Advocate Mpe for the second Respondent argued that the Appellant raised prescription and had to put facts. There were no sufficient

facts presented by the Appellant to prove when prescription started to run[2]. He argued that the Respondents put background facts to the summons for the Appellant to understand how their case is based. He argued that the Respondents’ cause of action began to run after consultation with the psychologist. He referred the court to the case of McKenzie v Farmers ‘Co- Operative Meat Industries Ltd 1922 AD 16 at 23 where the court held that the cause of action was defined for the purposes of prescription to mean “every fact which it would be necessary for the parties to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved.” He argued that the case of Mtokonya was distinguishable from this case as that person was assaulted by the police. He also argued that prescription started to run on the 18/4/2018 when the psychologist told the Respondents that they are suffering from headaches because of the incident that occurred. He prayed that the appeal be dismissed with costs

The Particulars of Claim:

[8] In the matter of Thandi Mbonane that was filed in the court record; the particulars of claim were as follows:

CLAIM A:

7.1. On or about the 15th of November 2015 at the gate of the house of the Plaintiff at Buhlebuzile, KwaMhlanga, the members of the SAPS, some of them being Sergeant Mnguni and Ntuli, assaulted the husband of the Plaintiff by the name of Jan Mbonane with open hands, fists, kicking him and pressing him on the ground.

7.2. As a result of witnessing the assault on her husband, Plaintiff suffered psychological injury amongst others in the form of the emotional distress resulting to severe depression disorder and clinical anger.

7.3. Plaintiff started experiencing severe headaches and upon being examined by the psychologist it was found that she had sustained psychological injury as stated above.

7.4. Plaintiff consulted with the psychologist on about 17th April 2018 and that is the day she became of the psychological injury she sustained as a result of witnessing the assault of her husband.

7.5. As a result of the psychological injury the Plaintiff suffered damages in the amount of R100 000. 00 special damages and general damages in the amount of R100 000.00.

......

Wherefore the plaintiff prays for judgement in the amount mentioned above or part thereof.

Defendant’s Special Plea:

[9] The following are the relevant paragraphs in the defendant’s (Appellant) special plea:

1.3 On 04 December 2018 at the above Honorable Court the Plaintiff issued Summons against the Defendant in which she claimed damages allegedly suffered as a result of witnessing her husbands’ assault by the members of the South African Police Service. The summons was served on the Defendant of 10 December 2018.

1.4. The Defendant specifically pleads that the Plaintiffs’ claim has been extinguished by prescription on 20 November 2018 and in terms of Section 11(d) of the Prescription Act 68 of 1969.

..........

Wherefore, the Defendant prays for the dismissal of the Plaintiff’s claim with costs.

Legal Framework and Analysis:

[10] It was not in dispute that the prescription of a debt is governed by the Prescription Act 68 of 1969 (the Prescription Act). Section 12 of the Prescription Act provides as follows:

“When prescription begins to run-

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

(2) If the debtor willfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt which does not arise from a contract shall not be deemed to be due until the creditor becomes 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.” (my own underlying)

[11] It was clear in this matter that the “debt” (psychological trauma) was a debt not arising from a contract. The

question therefore was when prescription began to run in this matter. In Minster of Finance v Gore NO[3] the Supreme Court of Appeal reiterated that:

‘This Court has, in a series of decisions, emphasized that time begins to run against the creditor when it has the minimum facts that are necessary to institute action. The running of prescription is not postponed until a creditor becomes aware of the full extent of its legal rights, nor until the creditor has evidence that would enable it to prove its case “comfortably”.’

[12] Prescription will in any event begin to run if that plaintiff (Respondents in this case) could have acquired knowledge of the facts by exercising reasonable care.[4] The plaintiff is deemed to have the requisite knowledge if a reasonable person in his position could deduce, from the facts of

which he is aware or should be aware were he to exercise reasonable care, the identity of the debtor and the facts from which the debt arises.[5] A plaintiff exercises reasonable care when he is diligent in the ascertainment of the facts underlying the debt and diligent in the evaluation of those facts. This is supported by the proviso in Section 12 (3).

[13] The facts in this matter are that both Respondents witness the assault of Mr. Mbonane by the police and they started to suffer from headaches. When those headaches did not stop they then consulted a psychologist. On the facts it is clear that prescription began to run when the Respondents witnessed the assault; that is on the 15th of November 2015. I say this because they started to suffer from headaches after witnessing the assault. They did nothing about it. Prescription began to run when the initial loss occurs, in respect of that loss and all future potential loss.[6] (my emphasis).

[14] The fact that the damage suffered by the plaintiff is only completed later and is thus only quantified at a later date does not mean that prescription does not run in the interim.[7]. This is supported by the fact that both Respondents were able to connect the assault as the cause of their psychological trauma. If that was not so, they would not be able to pinpoint this event as a cause of their trauma. I find therefore that it is not correct to say that prescription began to run after they consulted the psychologist. They did so after their headache problems persisted. The headaches were there after they witness the assault and they did not take any reasonable action to find out what caused the headaches.

[15] To find that they only became aware of the facts upon which the debt arose on 17 April 2018 will be to stretch the matter unnecessarily and contrary to the decision of the Constitutional Court in Mtokonya (supra). Moreover, in this matter Mr. Mbonane instituted proceedings against the Appellant. All the facts of the debt were clearly easily ascertainable by the Respondents and they chose not to act to their detriment. The Respondents had the minimal facts required to institute proceedings by the 15th of November 2015. The psychologists’ report was therefore only necessary to support their claims during trial.

[16] I therefore find that the decision by the court a quo was clearly incorrect and justifies interference by this court. The Appellant in this matter did put sufficient facts before the court a quo to prove that the matter has prescribed.

[17] In the result, I make the following order:

The appeal is hereby upheld with costs.

J. Mtimunye

Acting Judge of the High Court

Mpumalanga Division, Middelburg local Seat

I Agree,

B. Langa

Judge of the High Court

For the appellant: Advocate M Rantho

Instructed by: Office of State Attorney

C/O Vicky Janse van Noordwyk Attorney

For the First Respondent: Advocate Bothetele

Instructed by: JM Masombuka Attorneys

For the Second Respondent: Advocate Mpe and Mr Moifo

Date of hearing: 10/6/2022

Date of judgement: 22/09/2022

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 22 September 2022 at 14h00.

[1] . Mohlomi v Minister of Defence 1997 (1) SACC 1565 and Engelbrecht v Road Accident Fund (2007) (6) SA 96 (CC)

[2] . Gericke v Sack 1978 (1) SA 821 (A) at 827

[3] 2007 (1) SA 111 (A) para 17

[4] Gericke v Sack 1978 (1) SA 821 A

[5] Benson v Walters 1984 (1) SA 73 (A) at 82E

[6] Loubser Extinctive Prescription 84, referring to Kantor v Welldone Upholsterers 1944 CPD 388

[7] Harker v Fussell supra; See also Burger v Gouws 1980 (4) SA 583 (W) 587B