Skom v Minister of Police and Others (285 & 284/2014) [2014] ZAECBHC 6 (27 May 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

CASE NOS: 285 & 284/2014

DATE HEARD: 15/04/2014

DATE DELIVERED: 27/05/2014

In the matter between

LWANDISO NKEBENKEBE SKOM PLAINTIFF and THE MINISTER OF POLICE 1ST DEFENDANT THE NATIONAL DIRECTOR OF 2ND DEFENDANT PUBLIC PROSECUTIONS YONELA DIPLOMA SINGATHA PLAINTIFF and THE MINISTER OF POLICE 1ST DEFENDANT THE NATIONAL DIRECTOR OF 2ND DEFENDANT PUBLIC PROSECUTIONS

JUDGMENT

ROBERSON J:-

[1] The above two matters have been consolidated. Both plaintiffs claim damages from the first defendant for wrongful arrest, malicious prosecution and assault, and from both defendants for wrongful detention. It is common cause on the pleadings that the plaintiffs were arrested on 11 June 2009, appeared before a magistrate on 15 June 2009, and remained in custody until they were discharged in terms of s 174 of the Criminal Procedure Act 51 of 1977 on 05 December 2011, having spent 908 days in custody. The plaintiffs alleged that they were assaulted by members of the first defendant between 11 and 15 June 2009. Summons was served on the defendants on 29 June 2012.

[2] The defendants have taken two special pleas: (i) prescription and (ii) failure to comply with s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

Prescription

[3] This defence is raised only against the claims for wrongful arrest, assault, and detention for the period 11 June 2009 to 28 June 2009. It was pleaded that the claim for arrest fell due on 11 June 2009 and had prescribed, that the claim for assault fell due before 15 June 2009 and had prescribed, and insofar as each day of detention gave rise to a separate cause of action, the claim for detention which fell due from 11 to 28 June 2009 had prescribed.

[4] In resisting the plea of prescription, the plaintiffs relied on s 13 (1) (a) of the Prescription Act 68 of 1969 (the Act). S 13 (1) of the Act provides:

“Completion of prescription delayed in certain circumstances

(1) If-

(a) the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription as contemplated in section 15 (1); or

(b) the debtor is outside the Republic; or

[Para.(b) substituted by s. 11 (a) of Act 139 of 1992.]

(c) the creditor and debtor are married to each other; or

(d) the creditor and debtor are partners and the debt is a debt which arose out of the partnership relationship; or

(e) the creditor is a juristic person and the debtor is a member of the governing body of such juristic person; or

(f) the debt is the object of a dispute subjected to arbitration; or

(g) the debt is the object of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of the debtor or against a company in liquidation or against an applicant under the Agricultural Credit Act, 1966; or

[Para.(g)substituted by s. 11 (b) of Act 139 of 1992.]

(h) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed; and

(i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist, the period of prescription shall not be completed before a year has elapsed after the day referred to in paragraph (i).”

[5] The specific circumstance relied upon by the plaintiffs was prevention by superior force, such superior force being their incarceration from 11 June 2009 until 05 December 2011. It was placed on record by agreement that the plaintiffs were legally represented from the start to the finish of their criminal trials.

[6] In ABP 4 x 4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924 (SCA) Marais JA said the following at para [11]:

“Next to be observed is that the use of the word ‘impediment’ in ss (1) (i) is not to be taken too literally and interpreted as meaning an absolute bar to the institution of legal proceedings. While some of the circumstances set forth in ss (1) (a) to (h) may give rise to an absolute bar, others do not. An example of the former is ss (h); an example of the latter is ss (e). The word ‘impediment’ therefore covers a wide spectrum of situations ranging from those in which it would not be possible in law for the creditor to sue to those in which it might be difficult or awkward, but not impossible, to sue. In short, the impediments range from the absolute to the relative.”

[7] With that dictum in mind, the question is whether or not the plaintiffs’ incarceration prevented them from interrupting the running of prescription. I am of the view that their mere incarceration did not prevent them from giving instructions to an attorney to institute proceedings on their behalf. They were not detained in terms of legislation which prevented them from having access to an attorney or vice versa. (See for example Magubane v Minister of Police 1982 (3) SA 542 (NPD) and Montsisi v Minister of Police 1984 (1) SA 619 (AD) dealing with detention in terms of s 6 of the Terrorism Act 83 of 1967.) They were legally represented during their criminal trials, and presumably elected to have such representation. They did not plead that their detention made it “difficult or awkward” to instruct an attorney to institute proceedings and to suggest that it did so is to speculate.

[8] Both counsel relied on the decision in Lombo v African National Congress 2002 (6) SA 668 (SCA) in which, inter alia, the provisions of s 13 (1) (a) of the Act were considered. At para [25] Smalberger ADP said the following:

“The physical detention of the appellant outside the Republic of South Africa in circumstances in which he was prevented from pursuing

personally any action arising from the alleged assaults and maltreatment inflicted upon him, and totally denied access to anyone

who could do so on his behalf, amounted to his being prevented by a superior force from interrupting the running of prescription as contemplated by s 13 (1) (a). Consequently, he had one year from the time this impediment ceased to exist (his release from detention and return to this country) within which to institute action in respect of all causes of action arising from the alleged assaults and maltreatment to which he was subjected during his detention, and his property that was allegedly expropriated.”

[9] In my view, and as was submitted on behalf of the defendants, the circumstances of the present case are distinguishable from those in Lombo. The plaintiffs were not detained outside South Africa and the circumstances of their incarceration did not prevent them from personally pursuing an action.

[10] In the result I am of the view that the plaintiffs’ reliance on s 13 (1) (a) of the Act is misplaced and the first special plea should succeed.

Non-compliance with s 3 of Act 40 of 2002

[11] The defendants pleaded that the plaintiffs had failed to comply with the provisions of s 3 (1) and (2) of Act 40 of 2002 in respect of all their claims, and specifically stated that the service of summons was not preceded by a notice “in accordance with s 3 of Act 40 of 2002”. The plaintiffs’ replication to this plea was an allegation that notices dated 20 March 2012 and 3 April 2012 were sent by registered post to the first and second defendants respectively. The notices were attached to the replication. The replication was later withdrawn.

[12] On 26 March 2014 a “Case Management Order” was issued by Stretch J, which provided inter alia that:

“6. The Defendants are directed to address the following issues:

6.1 to admit or deny that the letters of demand annexed to the Plaintiffs’ erstwhile Replication were dispatched to the First and Second Defendants; and

6.2 to admit or deny that the letters of demand were dispatched by registered post during March and April 2012, as per the annexure to the Replication.”

The parties were further ordered to file an additional Rule 37 minute dealing with those issues.

[13] In the minute of a pre-trial conference held on 31 March 2014 it was recorded that the defendants denied that the letters were dispatched and that they were dispatched by registered post. The plaintiffs undertook to furnish the defendants with the letters and proof of their dispatch.

[14] On 2 April 2014 the plaintiffs filed the two notices together with proof of registered postage of both notices, and an acknowledgment of receipt of the notice by the second defendant. Their filing notice stated that the documents were filed “pursuant to the pre-trial meeting held on the 31st March 2014 by and between the legal representatives of the parties (held by virtue of the Case Management Order dated 24 March 2014”. On 10 April 2014 a post office track and trace report in respect of the notice to the first defendant was filed. At the hearing of the special pleas proof that the person collecting the notice was employed by the South African Police Service was handed in.

[15] The notices, proof of registered postage and receipt of the notice were therefore before the court.

[16] It was submitted on behalf of the defendants that Stretch J was not entitled to make the order which she did and that case flow management is facilitative and does not usurp the law. Alternatively, if it was accepted that the notices were given, then they were not given within six months from the date on which the debts became due, in accordance with s 3 (2) of Act 40 of 2002. In response to this latter submission it was submitted on behalf of the plaintiffs that the focus of the special plea was that no notices had been sent at all and that the defendants could not now fall back on the six month requirement.

[17] I am of the view that I cannot simply ignore Stretch J’s order and it remains in force. Further, on 28 February 2014 the Chief Justice, in accordance with s 165 (6) of the Constitution read with s 8 of the Superior Courts Act 10 of 2013, by way of Government Gazette 37390, issued norms and standards for the exercise of judicial functions of all courts.

[18] The objectives of the norms and standards are stated as follows:

“These norms and standards seek to achieve the enhancement of access to quality justice for all; to affirm the dignity of all users of the court system and to ensure the effective, efficient and expeditious adjudication and resolution of all disputes through the courts, where applicable. These objectives can only be attained through the commitment and co-operation of all Judicial Officers in keeping with their oath or solemn affirmation to uphold and protect the Constitution and the human rights entrenched in it and to deliver justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law.”

[19] Amongst the core values stated in the document as underpinning the norms and standards are equality and fairness, and judicial officers are enjoined to act at all times in accordance with the core values. Under the heading “Judicial Case Flow Management” it is stated that case flow management shall be directed at enhancing service delivery and access to quality justice through the speedy finalisation of matters.

[20] In my view, the procedure in terms of which the notices were before the court was conducted in accordance with the spirit of the norms and standards document, and in accordance with justice. One wonders why the defendants persisted with their stance that the notices had not been sent. By the time the special pleas were heard the defendants had seen the notices, knew that the notices had been sent by registered post, had seen the track and trace report, and knew that the second defendant had acknowledged receipt. Proof of the employment of the person collecting the notices to the first defendant from the post office was handed in during argument. This manner of conducting litigation is, in my view, unacceptable and disappointing. A court should not be hampered in this way from adjudicating the crucial disputes between parties and reaching a just decision.

[21] Once it is accepted that the notices were sent, in view of my decision on the plea of prescription, the six month argument falls away. However I agree with the submission that the focus of the second special plea was firmly based on the contention that no notices were sent at all and not on any other non-compliance with s 3 of Act 40 of 2002, and this argument would not have availed the defendants.

[22] The second special plea cannot succeed.

Costs

[23] The parties have had more or less equal success in the hearing of the special pleas, which were argued at the same hearing, and to make two separate costs orders would be impractical. In my view an appropriate costs order would be that the parties should bear their own costs of the entire hearing. The request by the defendants for the costs of two Counsel and the request by the plaintiffs for attorney and client costs on the second special plea therefore fall away. I would not in any event have awarded such costs as I believe they were not warranted.

[24] The following order will issue:

[24.1] The first special plea is upheld: the plaintiffs’ claims for assault, wrongful arrest, and detention from 11 June 2009 to 28 June 2009 are dismissed.

[24.2] The second special plea is dismissed.

[24.3] The parties are to bear their own costs.

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: Adv S Cole, Instructed by Magqabi Seth Zitha Attorneys, East London For the Defendant: Adv Mbenenge with Adv A M da Silva, Instructed by the State Attorney, East London