Minister of Justice, Police and Prisons, Ciskei, and Another v Ntliziwana

• Jurisdiction: South Africa
• Judge: Pickard CJ, Van Winsen JA and Galgut JA
• Judgment Date: 16 November 1988
• Citation: 1989 (2) SA 549 (CkA)
• Hearing Date: 18 August 1988
• Court: Ciskei Appellate Division

Pickard CJ:

The respondent in this appeal was the plaintiff in the Court I a quo. It was common cause that he was arrested by a member of the police force on 14 October 1985, and thereafter detained in custody until 23 October 1985. He alleges that the arrest and detention were unlawful and claims damages from the appellants in their respective capacities. The respondent also claimed damages for alleged assaults by the police.

I will refer to the parties as plaintiff and defendants. This appeal is not concerned with the merits of the two claims for J damages. Defendants filed

Pickard CJ

A a plea denying liability and also a special plea to the effect that plaintiffs had not complied with s 48(1) of the Police Act 32 of 1983 (Ck) and that his action should therefore be dismissed. The Court a quo acting in terms of Rule 33(4) of the Rules of Court dealt with the latter issue only.

Section 48(1) reads:

B 'Notwithstanding anything to the contrary in any other law contained, no civil proceedings of any nature arising

(a)

out of any contract...; or

(b)

out of any wrong committed by any member of the Force acting in his capacity and within the scope of his authority as such member,

shall be brought against the State or against any such member if a period of six calendar months has elapsed from the date on which C the cause of action arose and unless notice in writing of the intention to bring such proceedings and of the cause thereof and of the details and amount of the claim has been given the defendant at least one month before the commencement of the proceedings.'

Plaintiff had sent two notices, one in respect of the alleged assaults and one in respect of the alleged wrongful arrest and detention. It D is common cause that these notices were sent more than a month before the issue of the summons herein. For reasons which need not be set out, it is only necessary to discuss the notice which was sent in relation to the claim based on the arrest and detention.

The relevant paragraph in that notice reads:

E 'In and as a result of the aforesaid arrest and detention, which were wrongful, intentional and without reasonable or probable cause thereto, our clients were humiliated and deprived of their liberty. In consequence of the aforegoing our clients have suffered damages in the sum of R10 000 each.'

(I pause to say plaintiff was one of two persons arrested.)

F The particulars of claim in plaintiff's summons details the arrest and detention and it is then said:

'The aforesaid arrest and detention were wrongful, unlawful, malicious and without reasonable and probable cause therefor.'

Save for admitting the arrest, the detention and the timeous receipt of the notice, the plea filed was a denial of all the essential averments in the summons.

G The Court a quo dismissed the special plea with costs. The appeal is against that order. There are two issues before this Court. The first is the meaning to be attached to the word 'brought' in s 48(1). The second is the effect of the inclusion in the particulars of claim of H the additional description of the arrest and detention as malicious.

I turn now to the first issue.

Defendants contend that the learned Judge a quo erred in equating, in the interpretation of the aforementioned section, the expression 'brought' with the issue of summons and contend for an interpretation that it should be interpreted to mean service of the summons on I a defendant.

It was common cause that, if the six-month period referred to in the section is to be calculated with reference to issue of summons, the action was timeously brought, but if it is to be calculated with reference to service of the summons, the action was not timeously brought and that plaintiff accordingly would have no action.

J Defendants' argument in this regard may be summarised as follows:

Pickard CJ

A Prior to the enactment of s 48(1)(b) the Police Act 7 of 1958 (RSA) applied. Section 32(1) thereof contained a similar provision which read as follows:

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

This section has been the subject of consideration in numerous reported judgments. From these it is abundantly clear that the South African Courts considered that the action was 'commenced' on the issue of C the summons. Vide: Nxumalo v Minister of Justice and Others 1961 (3) SA 663 (W); Labuschagne v Labuschagne; Labuschagne v Minister van Justisie 1967 (2) SA 575 (A); Rooskrans v Minister van Polisie 1973 (1) SA 273 (T).

The Legislature, when enacting s 48(1), is presumed to have been aware and conscious of this interpretation of the word 'commenced' in s 32 of the Police Act 7 of 1958 (RSA). It deliberately changed the wording D of the enactment and, so the argument goes, having chosen to use another word (viz 'brought') it thereby indicated its intention to alter the meaning and to require something more than issue of summons, namely the next step in the...