The central issue before the Supreme Court of Appeal (“the SCA”) in Minister of Police v Miya was whether non-compliance with the provisions of section 2(2)(a) of the State Liability Act,1957 renders a summons a nullity.
The issue arose as a result of a failure to serve a summons on the Minister of Police in terms of section 2(2)(a), although the summons was served on the State Attorney representing the Minister. Consequently, the Minister raised a special plea of prescription due to non-service on the Minister, which special plea was dismissed by the Gauteng Division of the High Court. The High Court highlighted that the Minister was made aware of the summons and he in fact filed his defence and followed the necessary court processes. Therefore, non-compliance with section 2(2)(a) did not render the summons void, as the purpose of section 2(2)(a) was achieved.
Section 2(2) of the State Liability Act provides that:
“(2) The plaintiff or applicant, as the case may be, or his or her legal representative must –
(a) after any court process instituting proceedings and in which the executive authority of a department is cited as nominal defendant or respondent has been issued, serve a copy of that
process on the head of the department concerned at the head office of the department; and
(b) within five days after the service of the process contemplated in paragraph (a), serve a copy of that process on the office of the State Attorney operating within the area of jurisdiction of the court from which the process was issued.”
The Minister contended provisions of section 2(2) of the State liability Act are obligatory. Thus, a failure to serve the summons on the Minister is fatal and service on the State Attorney alone renders the summons a nullity. Alternatively, the Minister argued that the claim had been prescribed due to non-service on the debtor (the Minister) in terms of section 2(2)(a).
In the SCA the issue of prescription became the crux of the Minister's case.
SCA's findings
The SCA held that the issue of prescription simply does not arise in this case for the following reasons:
- The plea of prescription was pleaded in the alternative;
- Service on the State Attorney was within the relevant three years contemplated in the Prescription Act; ; and
- The Minister was timeously served with the statutory notice in terms of the Institution of Legal Proceeding Against Certain Organ of the State Act, 2002. It is trite that it is ‘a process' that serves to interrupt prescription.
When dealing with the issue of whether non-compliance with section 2(2) of the State Liability Act is fatal, the SCA relied on the findings of Minister of Police v Molokwane where similar arguments were raised. The court endorsed the purposive interpretative approach of section 2(2) adopted in Molokwane. The court further agreed that the question to be considered in interpreting this section is not about how the knowledge was obtained, but whether knowledge of the action was obtained.
In this matter, the statutory notice was served on the Minister. The Minister gave instructions to the State Attorney, an agent acting on his behalf, to defend the matter by filing a notice of intention to defend. The Minister participated in all the stages of proceedings until the trial. According to the SCA, all of this demonstrated that the Minister was fully aware of the proceedings instituted against him.
Consequently, the court concluded that the failure to serve the summons within the prescripts of section 2(2) of the State Liability Act, was, on the facts of this case, not fatal.
The court's decision in matters of this nature will be influenced by the facts of each case. Therefore, practitioners are still encouraged to comply with section 2(2) of the State Liability Act when serving court processes on the executive authority of a government department.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.