In the Mahikeng High Court, Bhungane Aphindile (“Aphindile”) brought an application against the Minister of Police (“Minister”), seeking condonation for the late filing of the notice of intended legal proceedings. This notice is required as per section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act, 2002 (“the Act”). He also sought an order that the Minister pay the costs of the application on an attorney and client scale if the application was opposed.
The condonation application arose after the Minister, in the main action, raised a special plea because Aphindile had failed to serve the required notice within the period prescribed by the Act, and therefore, Aphindile's claim had expired.
The main action was instituted as a result of Aphindile's arrest and detention under the charge of murder on 28 March 2017. Aphindile was later released on bail on 17 August 2017. Aphindile's matter was finally heard on 22 May 2018, and he was discharged in terms of section 174 of the Criminal Procedure Act, 1977 (“CPA”).
Later, on 28 February 2019, Aphindile delivered a notice in terms of section 3 of the Act, demanding payment for unlawful arrest, detention and loss of income. He then issued a formal legal action against the Minister on 14 April 2021.
In considering the special plea, the High Court considered section 3 of the Act, which states:
“No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-
….
(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 byexercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and
(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.(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.
Section 3(4)(b) of the Act empowers a court to grant condonation sought by an Applicant, provided the court 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.
The court, in considering whether Aphindile's claim had prescribed, considered section 3(3)(a) of the Act read with section 11(d) and section 12 of the Prescription Act, 1969. In terms of section 11(d), the Prescription Act provided that prescription shall be three years in respect of any other debt. Section 12 of the Prescription Act, on the other hand, deals with when prescription begins to run and reads as follows:
"Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due.
(1) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.
(2) 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."
In considering the facts before it, the High Court stated that it is empowered to grant the condonation sought provided that it is satisfied that (a) the debt has not been extinguished by prescription, (b) good cause existed for the failure by the creditor; and (c) the organ of state was not unreasonably prejudiced by the failure.
In considering the first requirement, the High Court stated that, in determining whether a debt has prescribed, two questions had to be asked, namely:
- Whether the creditor had knowledge or is deemed to have knowledge of the identity of the debtor; and
- Whether the creditor had knowledge or is deemed to have knowledge of the facts from which the debt arises?
The High Court stated that the identity of the debtor was known to the creditor. The High Court considered Aphindile's contention that the unlawful detention was continuous and that he could only be unlawfully arrested if found not guilty at trial, which would have been the day the prescription period started running.
The High Court rejected Aphindile's argument for the following reasons. According to the High Court, Aphindile's argument that he only became aware of the debt after his discharge was a conclusion of law and not one of fact as contemplated by section 12(3) of the Prescription Act. According to the High Court, Aphindile, at the time of his arrest, detention and subsequent malicious prosecution, was aware of the facts which gave rise to the debt arose. The High Court also rejected Aphindile's contention that the unlawful detention was continuous until his discharge.
Consequently, the High Court concluded that Aphindile could have acquired knowledge of the debt immediately after his arrest, detention or immediately when he was released from bail. Therefore, the High Court found that Aphindile's claim had prescribed as a result of his inaction. It was also of no consequence that Aphindile did not know his legal rights as the Prescription Act does not require the creditor to have knowledge of any rights due from the debtor.
The application for condonation was accordingly dismissed with costs.
The determination of when prescription begins to run is a factual question and not a legal one. The lack of knowledge in respect of one's right to claim for a debt will equally not prevent prescription from running.
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