Mfikili v The Minister of Police for the Republic of South Africa and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BR Tokota J
• Judgment Date: 12 July 2022
• Docket Number: E.L 873/2019
• Hearing Date: 02 June 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 2035 (ECGEL)

Tokota J:

Introduction:

[1]

The applicant instituted an action for damages' claim arising from the alleged unlawful arrest and detention against the first respondent (claim 1), malicious

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prosecution against the first and second respondents (claim 2) and loss of income against the first and second respondents (claim 3). The respondents raised a special plea contending that the plaintiff is time-barred for failure to comply with section 3(2) of the Institution of Legal Proceedings Against Certain Organs of the State Act No. 40 of 2002 (the Act).The Act creates time-bar limits enjoining a person who wishes to sue the State to give six months' notice from the date on which the debt becomes due, with the provision for condonation of the late giving of such notice. In that notice the claimant must briefly set out the facts giving rise to such debt. The purported notice was issued outside the six-month period. This is an application for condonation forfailure to comply with the provisions of the Act. The application is resisted by the respondents.

Factual background:

[2]

On 12 July 2017, the applicant was arrested by the police without a warrant of arrest. He was detained until he appeared in court. The papers do not indicate the date of his appearance in court. Since this is not an issue it can be safely assumed that he appeared within the forty-eight-hour period required in terms of section 50(1) of the Criminal Procedure Act 51 of 1977 (the CPA). The respondents pleaded that the applicant was arrested on reasonable grounds of suspicion that he had committed murder and robbery which are offences referred to in schedule 1 of the CPA.

[3]

The applicant appeared in court on several occasions without his case being tried. The information given by the parties is so scanty that one does not know when exactly was he released on bail. On 19 July 2018, the charges against the applicant

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were withdrawn. The applicant alleges that the magistrate remarked that the reason for the withdrawal was that there was no case against him. According to the record it is recorded "case withdrawn by PP". The record does not reveal that the magistrate said there was no case against the applicant.

[4]

On 2 October 2018, a letter purporting to be a notice in terms of section 3(2) of the Act was sent by registered mail to the National Commissioner of Police. No such notice was sent or served on the second respondent. On 12 August2019, the summons was served on the first respondent and on 24 January 2020, the summons was served on the second respondent. On 19 June 2020, the summons was served on the Provincial Commissioner.

[5]

Generally speaking, as the applicant was arrested on 12 July 2017 and assuming that the arrest and detention were unlawful, the debt would have become due on that date and the six month-period would have expired in January 2018.

[6]

The applicant stated that sometime after he was released he got to know that he could institute a claim for damages for unlawful arrest and detention and malicious prosecution. He then started looking for a lawyer who could take his case on a contingency basis. He contacted an attorney who wrote a letter on 2 October 2018. Then on 12 August 2019 and 24 January 2020 summons was served on the respondents respectively.

[7]

The applicant does not tell the court when exactly after his release did he know that he had a claim against the respondents.

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Statutory Framework:

[8]

Section 3 of the Act provides:

"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).

3(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)

such particulars of such debt as are within the knowledge of the creditor."

3(3) For purposes of subsection (2) (a)-

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and..."

[9]

Section 3(4) of the Act provides:

"(4) (a) If an organ of state relies on a creditor's failure to serve a notice in terms of subsection (2) (a), the creditor may apply to a court having jurisdiction for condonation of such failure.

(b) The court may grant an application referred to in paragraph (a) if it is satisfied that-

(i)

the debt has not been extinguished by prescription;

(ii)

good cause exists for the failure by the creditor; and

(iii)

the organ of state was not unreasonably prejudiced by the failure".

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[10]

Section 12(3) of the Prescription Act 68 of 1969 is worded in a similar fashion as section 3(3)(a) of the Act where it provides:

"A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care."

[11]

Subject to the provisions of section 3(4) of the Act, if the creditor fails to serve the notice within six months from the date on which the debt became due he is precluded from instituting legal proceedings against an organ of State. The debt becomes due when the creditor gains knowledge of the facts giving rise to it and of the identity of the debtor, or from the date on which he must be regarded as having acquired knowledge thereof by reason of exercising reasonable care.

Discussion:

[12]

The question to be determined is whether the applicant's failure to serve notices on the respondents in terms of...