Toloane v National Director of Public Prosecutions (2146/2020) [2020] ZAFSHC 193 (29 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

In the matters between:

Case number 2146/2020

TSHIDISO

PAUL TOLOANE Plaintiff and

THE

NATIONAL DIRECTOR OF PUBLIC PROSECUTION Defendant

CORAM:

DAFFUE J

HEARD ON: 01 OCTOBER 2020

DELIVERED ON: 29 OCTOBER 2020

[1] Mr Tshidiso Paul Toloane, an adult male taxi driver of Selosesha, Thaba ‘Nchu instituted action against the National Director of Public Prosecution on 25 June 2020 under case number 2146/2020. His claim is based on damages suffered following the institution of malicious proceedings insofar as employees of the defendant set the law in motion, initiated prosecution against him animo iniuriandi causing him to be deprived of his liberty for about 2 months. The criminal case against the plaintiff was withdrawn on 13 September 2018 and the prosecution was accordingly aborted. Plaintiff claims compensation in the amount of R1 055 600.00.

[2] On 26 June 2020 the combined summons and particulars of claim were served on Me Olga Barends, an administrative assistant and ostensibly a responsible employee in the office of the Director of Public Prosecution, Free State at Waterfall Centre, Aliwal Street,

Bloemfontein. The matter is, unlike as could be expected, not defended.

[3] The matter was enrolled on the unopposed motion court roll to be heard by me on 1 October 2020 during the recess. Plaintiff, armed with an affidavit, sought judgment by default. It was previously set down for hearing on 10 September 2020 before Naidoo J, but removed from the roll for a reason unknown to me.

[4] Plaintiff is seeking judgment by default in terms of rule 31(2)(a) of the Uniform Rules of Court. As mentioned, the notice of set down was accompanied by an affidavit in support of the claim. It is alleged that a prosecutor in the employ of the defendant maliciously and wrongfully set the wheels of justice in motion against plaintiff on 11 July 2018, that the case was postponed

several times and notwithstanding a formal opposed bail application, bail was not granted. After spending a period 63 days in custody, the matter was withdrawn against him on 13 September 2018.

[5] The amount of R1 055 600.00 is claimed as compensation for infringement of plaintiff’s dignity, deprivation of liberty, discomfort and suffering as well as contumelia arising from the alleged unlawful conduct.

[6] I was not prepared to hear argument in the unopposed motion court, bearing in mind the enormity of the case load before me and the fact that I was prima facie not satisfied that a proper case has been made out. Consequently, I requested heads of argument to be filed and reserved

judgment. I received heads of argument upon my return from Circuit Court.

[7] Plaintiff relies on several judgments, but in particular the latest judgment of the Constitutional Court in De Klerk v Minister of Police.[1] Based on the amount of R300 000.00 granted by the Constitutional Court in respect of compensation for a detention period of 8 (eight) days, plaintiff’s legal representative calculated that if R37 500.00 was to be allocated to one day’s detention, his client’s claim would be in excess of R2 325 000.00. Therefore it is submitted that the quantum of the claim is reasonable.

[8] Plaintiff’s claim arose on 13 September 2018, the day when the criminal case against him was withdrawn and he released from detention. He should have given notice of his intended legal proceedings for the recovery of damages within 6 (six) months from this date, to wit on/or before 12 March 2019. This was not done.

[9] The only notice relied upon by plaintiff and pleaded in paragraph 11 of the particulars of claim is a letter dated 26 February 2020 attached to the particulars of claim as annexure “B.” This letter is not addressed to any addressee in particular

although the following is noted pertaining to the inscription above the heading, as well as the heading itself and I quote:

“ATTENTION:

MINISTER OF POLICE

RE: PAUL TSHIDISO TOLOANE // MINISTER OF POLICE AND OTHERS”

Paragraphs 3 and 4 of the letter read as follows:

“3. It is our instructions that on or about 10 July 2018 our client was unlawfully accused, arrested and detained under Cas No: 35/07/2018 by Investigating Officer Constable Thabang Mokone of Selosesha Police Station, at Thaba Nchu, Free State Province.

4. It is our instructions further that our client was detained in custody for over two months and eventually released on 13 September 2018 when his case was withdrawn by the National Prosecutor.”

Clearly the debt and/or cause of action complained of is the arrest and detention of plaintiff and the only person blamed for this is the aforesaid Investigating Officer, a member of the South African Police Service. Not a word is said about the role of any prosecutor or other employee in the employ of defendant. I accept that in paragraph 6.4 of the letter reference is made to malicious prosecution, being one of the heads of damages for which R500 000.00 was claimed.

[10] This letter was apparently sent by registered mail to the National and Provincial Commissioners of Police, as well as the Director of Public Prosecution in Bloemfontein. Section 3 of the Institution of Legal Proceedings against Certain Organs of State Act, 40 of 2002 is peremptory. Anyone intending to claim for the recovery of a debt against an organ of state must give notice of the intended legal proceedings. Sub-sections 3(1) and (2) reads as follows:

“3.(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-

(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal

proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).

(2) A notice must-

(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4( 1); and

(b) briefly set out

(i) the facts giving rise to the debt; and

(ii) the particulars of such debt as are within the knowledge of the creditor.” (emphasis added)

Contrary to the facts and cause of action contained in the letter of demand which was sent for the intention of the Minister of Police and nobody else, the plaintiff relies on a totally different cause of action in his particulars of claim. Instead of citing the Minister of Police as he intended to do, the National Director of Public Prosecution is cited as the only defendant.

[11] Contrary to the fact that nothing was claimed from the National Director of Public Prosecution in the letter of demand, an amount in excess of R1 000 000 is now claimed from her in her official capacity.

[12] Section 17(1) of the Prescription Act, 68 of 1969 stipulates that a court shall not of its own motion take notice of prescription. Therefore, if the matter is not raised in the relevant documents filed of record in the proceedings, the matter should be considered by the presiding officer on the merits of the dispute.

[13] The Institution of Legal Proceedings against Certain Organs of State Act is clear.[2] A plaintiff’s cause of action is not complete unless proper notice of the intended legal proceedings has been given, unless the organ of state has consented in writing to absence of notice or an irregular notice which has to be pleaded as well. In the event of non-compliance with the notice requirement and failure by the organ of state to condone non-compliance, a plaintiff is forced to launch an application for condonation. If such application is dismissed, it is the end of the matter, unless the judgment is taken on appeal. As a result of the failure to comply with s 3 of the aforesaid Act, the plaintiff’s claim on the merits cannot succeed.

[14] In any event, I would not be prepared to make any order in respect of the quantum of the claim based on the affidavit, especially with reference to the lack of information pertaining to aspects such as the circumstances

under which the plaintiff was detained and his standing in life. Plaintiff’s attorney followed a wrong approach to calculate damages with reference to the De Klerk matter and then to submit that his client claims less than 50% of the amount that would have been awarded to De Klerk if he was

incarcerated for 63 days as well. Such a mathematical approach is not called for. Each case must be decided on its own peculiar facts and circumstances. Although it is helpful to consider awards issued in related matters, compensation is not capable of being determined by empirical measure as Nugent JA held in Tsedu and others v Lekota and another.[3]

[15] The following orders are issued:

1. Absolution from the instance is granted.

2. There shall be no order as to costs.

_______

J

P DAFFUE J

On behalf of Plaintiff: Adv T Mogwera

Instructed by: Mokhomo Attorneys

Bloemfontein

[1] (CCT 95/18) [2019] ZACC 32

[2] Mabaso v National Commissioner of Police and another 2010 (2) SA 375 (SCA) at par 1

[3] 2009 (4) SA 372 (SCA) par 25