Seleka and Others v Minister of Police and Others

• Jurisdiction: South Africa
• Citation: 2015 (4) SA 376 (LP)

Seleka and Others v Minister of Police and Others
2015 (4) SA 376 (LP)

2015 (4) SA p376

Citation	2015 (4) SA 376 (LP)
Case No	288/2013
Court	Limpopo Division, Polokwane
Judge	Makgoba J
Heard	November 3, 2014
Judgment	November 8, 2014
Counsel	VH Mugwambane for the plaintiffs.; RPA Ramawela for the defendants.

Flynote : Sleutelwoorde G

Prescription — Extinctive prescription — Interruption — By service of process — Letter of demand or notice of intention to sue state — Neither constituting service of 'process' affecting running of prescription — Prescription Act 68 of 1969, H s 15(1); Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3.

Headnote : Kopnota

The defendants raised a special plea of prescription against actions for damages instituted by the plaintiffs (for their alleged unlawful arrest, detention and assault by members of SAPS) on the basis that said actions were instituted I and summons served more than three years after their respective causes of action had arisen. The plaintiffs contended that the running of prescription was interrupted as contemplated in s 15(1) of the Prescription Act 68 of

2015 (4) SA p377

1969 by the service of their respective letters of demand and/or notices in A terms of s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. In issue was whether the letters of demand and/or notices constituted 'processes' in terms of the aforementioned provision of the Prescription Act and consequently affected the running of prescription. The court held that they did not and the claims had accordingly prescribed. (Paragraphs [16] – [17] at 380G – 381B.) B

Cases Considered

Annotations

Case law

First Consolidated Leasing v Service SA and Another 1981 (4) SA 380 (W): considered C

Mias de Klerk Boerdery (Edms) Bpk v Cole 1986 (2) SA 284 (N): referred to

Naidoo and Another v Lane and Another 1997 (2) SA 913 (D): dictum at 919A – B applied

Park Finance Corporation (Pty) Ltd v Van Niekerk 1956 (1) SA 669 (T): considered

Santam Insurance Co Ltd v Vilakasi 1967 (1) SA 246 (A) at 253H: considered. D

Statutes Considered

Statutes

The Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3: see Juta's Statutes of South Africa 2013/14 vol 1 at 2-822

The Prescription Act 68 of 1969, s 15(1): see Juta's Statutes of South Africa 2013/14 vol 1 at 2-945. E

Case Information

VH Mugwambane for the plaintiffs

RPA Ramawela for the defendants.

Special plea of prescription. F

Order

The defendants' special plea of prescription is upheld and the plaintiffs' actions are dismissed with costs.

Judgment

Makgoba J: G

[1] The plaintiffs instituted actions for damages against the defendants arising out of the alleged unlawful arrest, detention and assault by members of the South African Police Service, namely the second and third defendants who at all material times were acting within the course and scope of their employment with the first defendant. H

[2] The defendants raised a special plea of prescription on the basis that the plaintiffs' actions were instituted and summons was served three years after their respective causes of action had already arisen.

[3] The parties agreed to submit a stated case to the court in terms of rules 33(1) and (2) of the Uniform Rules of Court for the court to I adjudicate on the issue of prescription.

[4] The following facts are agreed upon between the parties for the purpose of the adjudication of the special case:

[4.1]

The cause of action for the claim of wrongful arrest and detention instituted by Phillemon Seleka (herein referred to as J

2015 (4) SA p378

Makgoba J

A the first plaintiff) against the defendants arose on 3 February 2010. The cause of action for the claim of assault instituted by the first plaintiff against the defendants arose, however, on 8 February 2010.

[4.2]

The cause of action for the claim of wrongful arrest and B detention instituted by Diamond Nginenda (herein referred to as the second plaintiff) against the defendants arose on 3 February 2010. The cause of action for the claim of assault instituted by the second plaintiff against the defendants arose, however, on 8 February 2010.

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