Mthembu v Minister of Police (45040/2018) [2021] ZAGPJHC 878 (22 December 2021)

Mthembu v Minister of Police (45040/2018) [2021] ZAGPJHC 878 (22 December 2021)

The court held that the plaintiff's claim had prescribed under the Prescription Act, as the summons was issued more than three years after the cause of action arose. The plaintiff failed to comply with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act by not bringing a formal condonation application for late notice. Mere attachment of notices to the summons and requests for indulgence do not satisfy the statutory and procedural requirements. The court found no prejudice to the defendants from non-compliance with section 2(2) of the State Liability Act, as service was effected and representation was ensured. Consequently, the special pleas on...

Citation
[2021] ZAGPJHC 878
Parties
Plaintiff: Mthembu Sydney Xolani; Defendant: Minister of Police; Defendant: National Director of Public Prosecutions
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 December 2021
Case Number
45040/2018
Procedural Posture
Civil Trial / Special Pleas Separated and Determined Prior to Merits
Outcome
Special pleas on prescription and non-compliance with section 3 of the ILPACOS Act upheld with costs; special plea on section 2 of the State Liability Act dismissed with costs.
Judges
Senyatsi ML
Legal Topics
Prescription Act, Wrongful Arrest, Malicious Prosecution, Institution of Legal Proceedings Against State, State Liability Act
Civil Procedure Delict Prescription Act Wrongful Arrest Malicious Prosecution Institution of Legal Proceedings Against State State Liability Act

Case Brief

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Parties

Mthembu Sydney Xolani

Plaintiff

Minister of Police

Defendant

National Director of Public Prosecutions

Defendant

Procedural Posture

Civil Trial / Special Pleas Separated and Determined Prior to Merits

Legal Issues

  1. 1 Has the plaintiff's claim prescribed under the Prescription Act.
  2. 2 Is non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act fatal without a formal condonation application.
  3. 3 Does non-compliance with section 2(2) of the State Liability Act prejudice the defendants.

Ratio Decidendi

The court held that the plaintiff's claim had prescribed under the Prescription Act, as the summons was issued more than three years after the cause of action arose. The plaintiff failed to comply with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act by not bringing a formal condonation application for late notice. Mere attachment of notices to the summons and requests for indulgence do not satisfy the statutory and procedural requirements. The court found no prejudice to the defendants from non-compliance with section 2(2) of the State Liability Act, as service was effected and representation was ensured. Consequently, the special pleas on...

Court Disposition

Special pleas on prescription and non-compliance with section 3 of the ILPACOS Act upheld with costs; special plea on section 2 of the State Liability Act dismissed with costs.

Orders

  • The special pleas on prescription and non-compliance with section 3 of the ILPACOS Act are upheld with costs.
  • The special plea on failure to comply with section 2 of the State Liability Act is dismissed with costs.