Thompson and Another v Minister of Police and Another

• Jurisdiction: South Africa
• Judge: Eksteen J
• Judgment Date: 19 November 1970
• Citation: 1971 (1) SA 371 (E)
• Hearing Date: 02 October 1970
• Court: Eastern Cape Division

Eksteen, J.:

The plaintiffs in the two actions before me have F both instituted actions against the Minister of Police and against Warrant Officer Richard Hansen in which they claim damages in respect of an alleged wrongful arrest; and in the alternative they ask for an award of damages against Hansen alone in respect of an alleged malicious arrest, malicious G detention and malicious prosecution. The pleadings in both actions have been closed, and the parties, acting in terms of Rule 33 (1) of the Rules of Court, have submitted a written statement of facts in the form of a special case in which I am asked to adjudicate on the special plea of prescription raised by the defendants in each case.

From the papers it appears that at all relevant times the second defendant - i.e. Hansen - was an adjutant officer H in the South African Police duly appointed as such under the provisions of the Police Act, Act 7 of 1958, and that he acted at all relevant times within the course and scope of his duties as a servant of the first defendant - i.e. the Minister of Police.

On 10th April, 1967 Hansen, acting in terms of a warrant of arrest issued by the magistrate of Somerset East, arrested the two plaintiffs on a charge of attempting to defeat the ends of justice. Pursuant to

Eksteen J

this arrest the plaintiffs were detained in custody for approximately half an hour, before being released. On 8th and 9th June, 1967 the plaintiffs were duly tried before the magistrate of Somerset East on a charge of attempting to defeat A the ends of justice. They were both convicted and sentenced. They both noted an appeal against their convictions and sentences, and on 29th April, 1968 the Court gave a judgment in which the appeal was allowed and the convictions and sentences were set aside. (Cf. S. v. Thompson and Another, 1968 (3) SA 425 (E)).

The plaintiffs thereupon decided to institute the present B actions, and, acting in terms of sec. 32 of Act 7 of 1958, they gave notice, through their attorneys, to the first and second defendants, of their intention on 20th September, 1968. The summons in each case was issued on 25th October, 1968 and served on the defendants on 31st October, 1968.

In addition to pleading over on the merits the defendants have, in both actions, filed a special plea in which they contend, in C respect of the plaintiffs' main claim based on wrongful and unlawful arrest, that the plaintiffs are debarred from bringing their action inasmuch as they have failed to commence their action within six months after their cause of action had arisen, as required by sec. 32 of Act 7 of 1958. In respect of the plaintiffs' alternative claims against second defendant D based on his alleged malicious arrest and detention the second defendant has pleaded that he was acting in pursuance of the Police Act, 7 of 1958, at the time; that compliance with the provisions of sec. 32 of the Act is a pre-requisite to the commencement of the actions; and that plaintiffs have failed to comply with the provisions of that section and are therefore debarred from claiming damages under that head.

E It will be noted that this special plea is only directed to the plaintiffs' claims for damages in respect of the second defendant's alleged malicious arrest and detention, and not in respect of their claims based on the malicious prosecution.

I am now asked in the stated case to adjudicate on the following, viz:

"(a)

On the assumption that the second defendant in effecting F the said arrests was acting in pursuance of the Police Act, 7 of 1958, but that plaintiffs' arrest was wrongful and unlawful, did plaintiffs fail to commence action within six months after their cause of action arose, and are they therefore debarred by sec. 32 of Act 7 of 1958 from bringing their action against defendants?

"(b)

On the assumption that plaintiffs were maliciously arrested and detained by second defendant:

(i)

Was second defendant acting in pursuance of the Police Act. 7 of 1958;

(ii)

G Is compliance with the provisions of sec. 32 of Act 7 of 1958 a pre-requisite for the commencement of plaintiffs' action for damages against second defendant; and

(iii)

Have plaintiffs failed to comply with the provisions of that section by failing to commence action within six months of their cause of action arising, and are they therefore debarred from bringing action against second defendant?"

H I am also asked to make such order as to costs as is deemed meet.

Sec. 32 of Act 7 of 1958 reads as follows:

"Limitation of actions. Any civil action against the State or any person in respect of anything done in pursuance of this Act, shall be commenced...