Nel and Another v Minister of Safety and Security and Others (1686/2006) [2008] ZAFSHC 88 (28 August 2008)

Nel and Another v Minister of Safety and Security and Others (1686/2006) [2008] ZAFSHC 88 (28 August 2008)

The court held that the plaintiffs' claims for malicious arrest and prosecution only became due on 1 April 2004, the date of their discharge from criminal proceedings. Notice in terms of section 3 of Act 40 of 2002 was given within six months of this date, and summons was issued within the three-year prescription period. Therefore, the claims are not prescribed. The court further found that the Minister of Justice and Constitutional Development does not have a direct and substantial interest in the outcome of the case, as the police defendants alone instigated the arrest and prosecution. Accordingly, the special pleas of prescription and non-joinder must fail.

Citation
[2008] ZAFSHC 88
Parties
Plaintiff: Ferdinand Wilhelmus Nel; Plaintiff: Etienne Britz; Defendant: Minister of Safety and Security; Defendant: Senior Superintendent L. S. Mofokeng; Defendant: Captain W. Boshoff; Defendant: Senior Superintendent M. L. Ngobeni; Defendant: Sergeant M. Ntshidi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 August 2008
Case Number
1686/2006
Procedural Posture
Civil Trial / Special Plea
Outcome
All special pleas are dismissed with costs.
Judges
M M MABESELE
Legal Topics
Prescription, Malicious Arrest, Malicious Prosecution, Non Joinder, Institution of Legal Proceedings Against State
Civil Procedure Delict Prescription Malicious Arrest Malicious Prosecution Non Joinder Institution of Legal Proceedings Against State

Case Brief

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Parties

Ferdinand Wilhelmus Nel

Plaintiff

Etienne Britz

Plaintiff

Minister of Safety and Security

Defendant

Senior Superintendent L. S. Mofokeng

Defendant

Captain W. Boshoff

Defendant

Senior Superintendent M. L. Ngobeni

Defendant

Sergeant M. Ntshidi

Defendant

Procedural Posture

Civil Trial / Special Plea

Legal Issues

  1. 1 Whether the plaintiffs' claims are barred by prescription under the Prescription Act.
  2. 2 Whether the plaintiffs failed to comply with the Institution of Legal Proceedings Against Certain Organs of State Act.
  3. 3 Whether the failure to join the Minister of Justice and Constitutional Development constitutes a material non-joinder.

Ratio Decidendi

The court held that the plaintiffs' claims for malicious arrest and prosecution only became due on 1 April 2004, the date of their discharge from criminal proceedings. Notice in terms of section 3 of Act 40 of 2002 was given within six months of this date, and summons was issued within the three-year prescription period. Therefore, the claims are not prescribed. The court further found that the Minister of Justice and Constitutional Development does not have a direct and substantial interest in the outcome of the case, as the police defendants alone instigated the arrest and prosecution. Accordingly, the special pleas of prescription and non-joinder must fail.

Court Disposition

All special pleas are dismissed with costs.

Orders

  • Each special plea is dismissed with costs.