Masuku and Another v Mdlalose and Others

• Jurisdiction: South Africa
• Judge: Smalberger JA, Nienaber JA, Olivier JA, Scott JA, Streicher AJA
• Judgment Date: 23 May 1997
• Docket Number: 436/95
• Hearing Date: 27 February 1997
• Counsel: A G Jeffreys for the appellants M A Mncwabe for the respondents
• Court: Supreme Court of Appeal

Smalberger J A:

The fundamental issue arising in this appeal is whether a policeman who acts F 'in the course and scope of his employment' as a servant of the State is invariably acting 'in pursuance of' the Police Act 7 of 1958 ('the Act'). Differently put, are the two concepts necessarily co-extensive.

The background to the present appeal is as follows. The three respondents (as plaintiffs) G instituted action against the two appellants (as defendants) on 13 August 1992 in the former Durban and Coast Local Division. For the sake of convenience I shall refer to the parties as in the Court below. The plaintiffs sued for funeral expenses, and loss of support in respect of H certain minor children, arising from the death of Sipho Ephraim Mdlalose ('the deceased'). In paras 6 and 7 of their particulars of claim the plaintiffs alleged:

'6.

On or about 14 February 1992, and at or near the Berea Road Railway Station, the first defendant wrongfully, unlawfully and without any justification shot and killed the deceased. I

7.

In acting as described in para 6 hereof, the first defendant acted in his capacity and within the course and scope of his authority as a servant of the State in the employ of the second defendant.'

After further setting out the grounds on which their claims were based, and the amount claimed by each of them, the plaintiffs proceeded to allege (in para 13): J

Smalberger JA

'The first, second and third plaintiffs have duly complied with the provisions of s 32 of the Police A Act 7 of 1958.'

In addition to pleading to the plaintiffs' allegations on the merits the defendants filed a special plea. It reads as follows:

'1.

It is alleged that the deceased was shot and killed by the first defendant acting in the course B and scope of his employment by the second defendant.

2.

The plaintiffs' cause of action therefore arose out of acts allegedly performed in pursuance of the provisions of the Police Act 1958.

3.

In the premises and by reason of the provisions of s 32 of the said Act, the plaintiffs were C obliged to commence action within six months after the cause of action arose and to give notice in writing of the civil action and the cause thereof, one month at least before the commencement of the action.

4.

The deceased was shot and killed on 14 February 1992 and the plaintiffs' cause of action accordingly arose on the said day.

5.

Notice was given by registered letter dated 13 July 1992 and received by the second defendant D on 21 July 1992.

6.

A copy of the letter is annexed hereto, marked A.

7.

Action was commenced by issue of summons on 13 August 1992.

8.

In the premises, the plaintiffs:

(a)

failed to give notice to the first defendant; E

(b)

failed to give notice one month at least before the commencement of the action.

9.

The plaintiffs' claims have therefore become prescribed and unenforceable.

Wherefore the defendants pray that the plaintiffs' claims be dismissed with costs.' F

The plaintiffs did not file a replication. By agreement the action proceeded to trial on the special plea only. In this regard paras 1, 2 and 3 of the pretrial minute read as follows:

'1.

It was agreed that the matter will proceed on the special plea alone at the trial set down for 19, G 20 and 21 April 1995. In the event of the special plea being dismissed, it was agreed that the matter will be postponed sine die with costs to be costs in the cause, the plaintiffs not being in a position to proceed with the issues of either liability or quantum. In the event of the special plea being upheld, the plaintiffs' representatives indicated that they would then H consider their position concerning the constitutionality of s 32 of Act 7 of 58.

2.

The plaintiffs' representatives exhibited:

(a)

A copy of a letter of demand addressed to the first defendant dated 13 July 1992;

(b)

certificates of the posting of registered articles on 13 July 1992 at Qualbert addressed to I the first and second defendants.

3.

The defendants' representatives made the admission that the respective letters dated 13 July 1992 addressed by the plaintiffs' erstwhile attorneys to the defendants were posted by registered mail on 13 July 1992 at Qualbert.' J

Smalberger JA

The matter came before Squires J and proceeded in respect of the special plea only. No A evidence was led. Squires J dismissed the special plea and, in terms of the agreement between the parties, ordered the costs to be costs in the cause.

Section 32(1) of the Act provides:

'Any civil action against the State or any person in respect of anything done in pursuance of this B Act, shall be commenced within six months after the cause of action arose, and notice in writing of any civil action and of the cause thereof shall be given to the defendant one month at least before the commencement thereof.'

The section, insofar as it relates to A six-month period within which action must be commenced, C provides for an expiry period ('vervaltermyn'), and not A prescriptive period. A plaintiff who has failed to comply with its provisions is generally debarred from suing. Hitherto the only exception allowed is where compliance with the section was at the relevant time impossible (Minister of Safety and Security v Molutsi and Another 1996 (4) SA 72 (A) at 95F--H D ([1996] 4 B All SA 535 at 554f--h)). In principle the position must be the same where there has been a failure to give timeous notice. I shall accept for the purposes of the present appeal that had the plaintiffs in their particulars of claim alleged that the act complained of was performed in pursuance of the Act, it would have been incumbent upon them to allege and prove compliance with s 32(1) (compare Avex Air (Pty) Ltd v Borough of Vryheid (2) 1972 (4) SA 676 (N)). E

If notice in terms of s 32(1) of the Act was required, such notice had to be 'given' to the defendants on 13 July 1992 at the latest. The word 'given' implies actual receipt of the notice, irrespective of the means of delivery. This would have imposed upon the plaintiffs the duty to F ensure that the defendants actually received the requisite notices not later than 13 July 1992 (Haripersad v Minister of Police and Another 1979 (2) SA 1005 (N) at 1007G). The mere posting of the notices on that date was not per se sufficient. As there was no admission, or proof, relating to the date of actual receipt by the defendants, and as receipt of the notices on G 13 July 1992 cannot be inferred as a matter of probability, the plaintiffs, on whom the onus rested to establish compliance with the requirements of s 32(1), would have failed to discharge such onus. In the result they would have been barred from proceeding with their action, and the special plea would have had to be upheld. H

What needs to be decided, however, is whether, having regard to the issues raised, notice was a prerequisite to the plaintiffs' action. The essential allegations are contained in paras 6 and 7 of the particulars of claim. The wording of para 7 - 'in his capacity and within the course and scope of his authority' - in essence follows that of s 1 of the State Liability Act 20 of 1957. I That section, inter alia, renders the State vicariously liable for the delicts of its servants committed in the course and scope of their employment. The wording of para 7 is therefore appropriate to an action founded on the principles of vicarious liability. It should be read as an allegation that at the relevant time the first defendant acted in the course and scope of his employment as a servant of the State. The plaintiffs have chosen to limit themselves to such J an

Smalberger JA

allegation. Neither in para 6 nor 7, nor for that matter anywhere else in the particulars of claim, A is the allegation expressly made that the first defendant acted in pursuance of the Act. Nor do the relevant paragraphs necessarily incorporate a tacit admission to that effect.

The matter is somewhat complicated by the fact that the plaintiffs chose, in para 13 of their B particulars of claim, to make the unqualified allegation that they had complied with the provisions of s 32 of the Act. Taken on its own, this paragraph is open to the construction that the plaintiffs were alleging that the first defendant was acting in pursuance of the Act. However, the particulars of claim must be considered as a whole. So viewed, doubt arises as to whether C the plaintiffs intended to make the unqualified allegation that they did. What they should have pleaded was that 'To the extent that the provisions of s 32 of the Police Act 7 of 1958 are applicable, the plaintiffs have duly complied with them'. Mr Jeffrey, for the defendants, very fairly conceded that para 13 should be read subject to such qualification.

At best for the defendants the particulars of claim are equivocal in regard to whether the D plaintiffs were alleging that the conduct complained of constituted conduct in pursuance of the Act. It was open to the defendants, by appropriate means, to have sought greater clarity from the plaintiffs with regard to the precise nature of their allegations. I have in mind recourse by E them to the provisions of Rule of Court 23. They took no such steps before filing their special plea. It was this equivocal state of affairs that led Squires J to dismiss the special plea. (Squires J also found that s 17 of the South African Police Service Rationalisation Proclamation R 5 dated 27 January 1995 was applicable to the present matter. In view of the decision in F Minister of Safety and Security v Molutsi and Another (supra) he erred in doing so. Nothing further turns on this point.)

As I understood Mr Jeffrey, the defendants accept that, if there is a legitimate legal...