SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE:  YES / NO
(2)    OF INTEREST TO OTHER JUDGES:  YES / NO
(3)    REVISED

_________________                 _____________________
DATE                                                     SIGNATURE	
				CASE NUMBER:  18229/2011
			DATE:   11 August 2021

MALESELA FRANS MOSUWE	Plaintiff
V

MINISTER OF POLICE			First Defendant

MINISTER OF CORRECTIONAL SERVICES		Second Defendant

JUDGMENT

MABUSE J
[1]	This application is for condonation for the applicant’s late service of the notice and for non-compliance with the provisions of Section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 and for leave to the applicant to pursue his claim against the defendants with pleadings already served and filed. The application is not opposed.
[2]	THE PARTIES
[2.1]	The applicant is an adult person who resides at [….], Polokwane, in the province of Limpopo.  He is the plaintiff in main action.  For purposes of convenience, I shall refer to him in this application as the plaintiff.
[2.2]	The First Respondent, the Minister of Police of 7th Floor, Wachthuis Building, 231 Pretorius Street, Pretoria, Gauteng Province, is cited in this application in his official capacity.  He is the First Defendant in the main action.  For purposes of convenience, he will be referred to as the First Defendant.
[2.3]	The Second Respondent, the Minister of Correctional Services, is cited in this application in his official capacity. According to the founding affidavit, his address is also situated at 7th Floor, Wachthuis Building, 231 Pretorius Street, Pretoria, in the Province of Gauteng. He will be referred to in this application as the Second Defendant, for purposes of convenience. 
	THE BACKGROUND
[3]	By combined summons issued by the Registrar of this Court on 22 March 2011 and subsequently amended by the Plaintiff on 17 January 2012, the plaintiff, Mr Malesela Frans Mosuwe, claims from the defendants, payment of money, interest, and costs of the suit.
[4]	The plaintiff's cause of action was based on wrongful and unlawful arrest and detention. According to the particulars of claim (“the poc”), the following circumstances led to the plaintiff’s claim. On or about July 2003 and at Polokwane, the plaintiff was wrongfully and unlawfully arrested by members of the South African Police Services (“the SAPS”), who at that material time were acting within their course and scope of employment with the First Defendant, for attempted robbery with aggravating circumstances and was, after his arrest, detained at Polokwane Police Station for four days.
[5] 	It is the plaintiff’s case furthermore that on 26 January 2004 he was wrongly convicted by the Regional Court at Polokwane and was, upon conviction, sentenced to seven (7) years imprisonment by members of the Minister of Correctional Services.  Thereafter, he was incarcerated by the members of the Second Defendant for a further period of 1107 days.   In that manner he was denied his constitutional rights to freedom of movement by members of the First Respondent who failed to investigate properly the case against him, so the allegations continue.  In his founding affidavit the Plaintiff states that he was detained further for one thousand one hundred and eighty (1185) five days.
[6] 	Of the seven years period of direct imprisonment to which he had been sentenced, he only served a period of three years and three months. During April 2007 he was released on parole. He continued to comply with the parole conditions after his release from custody.  He was required to do community service at Seshego Police Station where he was made a Master Chef for the detainees, from April 2007 to 6 October 2008.
[7] 	On a day that he could not remember he applied for leave to appeal.  He only received the results of the success of his appeal on 6 October 2008 when he was discharged from rendering any further parole services.
[8] 	He complains that he was detained for a period of three years and three months, a total of 1107 days, due to the gross negligence and failure of the members of the First Defendant to properly investigate the circumstances of the alleged offence and to conduct identity parade or to properly investigate the alleged robbery.

[9] 	As a consequence, the plaintiff has suffered damages for the loss of freedom, income, contumelia, trauma, discomfort and damages for his dignity and reputation in the amount of R34, 620, 000. 
[10] 	Against this background, on 29 June 2011 the defendants delivered their plea, which at contained only one special plea of prescription against the Plaintiff’s claims.  That special plea was raised as follows:
“Plaintiff’s claims against the Defendants are for:
1.1	an alleged unlawful arrest and detention during July 2003.
1.2	an alleged wrongful conviction on 1 January 2004
2.
The First Defendant pleads that any claim for unlawful arrest and detention has prescribed during July 2006 in terms of the Prescription Act 68 of 1969.
3.
Defendants pleads that any claim for wrongful conviction prescribed on 31 December 2006 in terms of the Prescription Act 68 of 1969.
4.
The Defendants plead that 1 January 2004 was a Public Holiday and the Courts did not sit.” 

[11] 	By notice of amendment dated 27 July 2015 and in terms of Rule 28 of the Uniform Rules of Court the Defendants raised two more special pleas against the plaintiff’s claims. This was done after the plaintiff had been given an opportunity to object to the intended amendment but had failed do so. The second special plea was that the plaintiff had failed, before commencing his legal proceedings against the defendants on 11 March 2011, to serve the Defendants, both organs of state in terms of the Act, with a notice in terms of section 3(1) of the Act, within six months from the date on which the debt became due, notifying them of his intention to institute such legal proceedings. On this basis the defendants sought the dismissal, with costs, of the plaintiff’s claim against the defendants.
[12] 	The third special plea that State Attorney introduced was a plea of non-joinder, in which he pointed out that the plaintiff was convicted by a Regional Court Magistrate who at that material time was acting under the authority of the then Department of Justice and Constitutional Development an organ of State.  The State Attorney held the view that the Minister of Justice and Constitutional Development was therefore a necessary party and should, for that reason, have been joined in the proceedings as a party. The Minister of Justice has not been joined in the proceedings in which he was an interested party. For that reason, the Defendants prayed for the dismissal with costs of the plaintiff’s action based on non-joinder.

THE LAW
[13] 	Section 3(1)(a) of the Act requires a creditor to give the debtor notice in writing of his or her or its intention to institute legal proceedings against the creditor.  In terms of s 3(2)(a) of the Act the creditor must give the debtor such a notice within six months from the date on which the debt became due. The said notice must precede the institution of any legal proceedings against the debtor. The purpose of doing so is to give the debtor an opportunity to investigate the matter or the origin of the debt, if given enough information, and to try and settle the debt before the commencement of any litigation so that the debtor may save the costs of litigation. It prevents the commencement of any litigation against the debtor which was not preceded by such a notice. Now s 3(1) provides as follows: 
“3(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-
(a)	a creditor has given the organ of state in question notice in writing of his or her or its intention to institute legal proceedings in question; or
(b)	the organ of state in question has consented in writing to the institution of that legal proceedings;
(i)	without such notice; 
       		(ii)  upon receipt of a notice which does not comply with all the requirements set out in       
                subsection (2).	
(2) A notice must -
(a) within six months from the date on which the debt became do, be served on the organs   of state in accordance with section 4(1); and
(b) briefly set out-
  		(i)  the facts giving rise to the debt; 
    		(ii) such particulars of such debt as are within the knowledge of the creditor.”
S 1 of the Act defines a “debt” as meaning any debt arising from any cause of action-
(a)	which arises from delictual, contractual or any other liability, including a cause of action which relates to or arises from any-
(i)	any act performed under or in terms of any law; or 
(ii)	omission to do anything which should have been done under or in terms of any law; and
(b)	for which an organ of state is liable for payment of damages, whether such debt became due before or after the fixed date;”

[14] 	There is no doubt, in casu, that the plaintiff issued summons to claim payment of a debt without first having given the defendants, within six months from the date on which the debt became due, the necessary notice in writing of his intention to institute the current legal proceedings.
[15] 	The plaintiff contends that his erstwhile attorneys, Munyai Attorneys, addressed the relevant notice in terms of Act 40 of 2002 to the Defendants on 2 December 2009.  A copy of the said notice is attached to the plaintiff’s founding affidavit as annexure “MFM3”.  The said notice states, inter alia, that:
“We further confirm that during July 2003 at Polokwane our client was wrongfully arrested by members of the South African Police Service for a charge of attempted robbery with aggravating circumstances.” 
This notice is dated 2 December 2009. In respect of the incident that took place during July 2003, it was sent more than six months, contrary to the provisions of s 3(2)(a) of the Act and more six years, contrary to the provisions of s 12(d) of the Prescription Act, after the debt became due. I say more than six years because the in respect of the alleged a wrongful arrest and detention became due during July 2003. “Debt” in sections 10 and 15(1) of the Prescription Act 68 of 969 means an obligation or obligations flowing from a particular right.” See Evins v Shield Insurance Co. Limited 1979 (3) SA 1136 (WLD), at 1141G.  The plaintiff’s cause of action in respect of a claim for unlawful arrest and detention arose on or during July 2003. “A cause of action accrues when all the facts have happened which are material to be proved to entitle with the plaintiff to succeed.  See Evins v Shield Insurance Co Limited at page 1141G-H.  In the instant application, the Plaintiff had knowledge of the identity of the people who arrested him; he knew they were Police officers and members of the South African Police Services under the Minister of Police. He knew the circumstances of his arrest. Furthermore, he knew that his arrest was unlawful because he said that he told the Police at the time of his arrest that he had not committed the offence the Police arrested him for. So, he knew all the facts from which the debt arose.  In this instant matter, the unlawful act plus damage took place at the arrest and detention. At this stage all the damage flowing from the unlawful act could be recovered.
[16] 	In terms of section 11 of the Prescription Act, the period of prescription of a debt arising from unlawful arrest and detention is three years.
[17] 	The said letter continued and stated that:
“On the 01 general 2004 our client was convicted by the Regional Court in Polokwane and was sentenced to seven years direct imprisonment and served 3 years and 3 months.”
This cannot be a cause of action. Once a court has convicted a person of an offence there cannot be a complain that he was convicted unlawfully. At any rate there is no complaint in this letter that the plaintiff was convicted unlawfully.  If the plaintiff contemplated turning this incident into a cause of action, part of it has become extinguished by prescription at the time the notice in terms of s 3(1)(a) was given in their letter dated 2 December 2009.
“The matter went on appeal on the 6th of October 2008 before the Transvaal Provincial Division under case number A545/2005 and the said appeal was successful. Our client was therefore released.” This is how the letter continued. This letter was inconsequential because even if the said appeal succeeded the plaintiff had served his sentence. It appears that the Court that heard the appeal was never informed that the plaintiff had already served his sentence. There was a duty on the plaintiff, his attorneys and counsel to inform the Appeal Tribunal that the plaintiff had already served his sentence when the appeal was heard. The appeal court dealt was unaware of all the facts that should have been placed before it. If all the facts were disclosed to it, it would have, from a procedural point of view, refused to hear the appeal. At that stage the matter the appeal had become moot and there was no reason, in my view, for the court of appeal court to continue to hear it. In hearing the said appeal, the appeal Tribunal concerned itself with a case that no longer affected the interest of the parties concerned. The doctrine of mootness is relevant to cases in which the issues underlying the dispute have been resolved. Furthermore, it was, in my view, not in the public interest to hear the appeal. So, the fact that the plaintiff succeeded on appeal does not help the Plaintiff in any way.
[18] 	In the founding affidavit to plaintiff states that he has been advised that the Defendants pleaded prescription and non-compliance with the provisions of s 31 Act 40 of 2002; that it is not practical and is contrary to the spirit of the Constitution of South Arica and more specifically the right to freedom and security of presence, movement read with freedom of arrested persons, detained, and accused persons as enshrined in the constitution of South Africa. He states furthermore that he only became aware of the debt and or alternatively of the names of the debtor on the date of the acquittal, being 6 October 2008.
 
HE DID NOT KNOW THAT HE COULD SUE THE DEFENDANTS
[19] 	He states that good cause exists for the failure to serve the notice in terms of s 3(2)(a) of the Act within 6 months of having acquired knowledge of the debt and or the cause of action having arisen. Then he gives several reasons to justify his failure to comply with s 3 (2)(a) of the Act. Among these reasons I only to deal with the reasons given in paragraphs 8.1.6 and 8.1.7, where he states that:
“8.1.6 I did know that not Irish looking institute legal proceedings against the respondents for a lawful arrest, detention and feather detention; And 
8.1.7 I did not know that I can institute legal action against the respondents and that only came to light subsequent to the consultation with my attorney when my constitutional rights were fully explained and the said notice was served on First Respondent and I do not have any trace that same was served on the second respondent hence a request that such non-compliance be condoned.”
[20]	The law that deals with these two reasons has been comprehensively and decisively dealt with by the Constitutional Court in the judgment of Mtokonya v Minister of Police 2018 (5) SA 22 CC at par [36].  The Constitutional Court had the following to say: “Section 12(3) does not require the creditor to have knowledge of any right to sue the debtor nor does it require him or her to have any knowledge of legal conclusions that may be drawn from the facts from which the debt arises. Case law is to the effect that the facts from which a debt arises are the facts from which a creditor would need to prove in order to establish liability of the debtor.”  Ignorance of the creditor’s rights to sue the debtor for a delict or violation of a contractual obligation committed by the debtor is therefore no valid reason to fail to comply with the provisions of s 3(2)(a) of the Act. In principle, no one can rely on his ignorance of his rights to act against those who have committed a wrong against him. There is no merit, in my view, in the other reasons advanced by the plaintiff why the notice in terms of section 3 of the Act was not sent at all or in time.

PRESCRIPTION
[21] 	In the particulars of claim, the plaintiff pleaded that he was arrested wrongfully and unlawfully on or about July 2003. The cause of action based on this incident arose on or about July 2003. Therefore, the plaintiff’s debt arising from this incident became due on or about July 2003. In terms of section 3(1) of the Act, the plaintiff was obliged to give the Defendants notice of the intended legal proceedings within six months of July 2003. It is neither the plaintiff's case that the two Defendants have consented in writing to the institution of legal proceedings without notice nor upon receipt of a notice which did not comply with the requirements set out in subsection (2). If the plaintiff had not complied with the provisions of ss 3(1) and (2)(a) of the Act, the defendants were therefore entitled to raise an objection by way of a special plea against such a failure.  It must be understood that raising an objection against failure by the plaintiff to comply with the provisions ss 3 (1) and (2) of the Act has nothing to do with the constitution. In fact, it is the defendants’ constitutional rights to raise the special plea as an objection against the plaintiff’s failure to send a notice of contemplated action to commence litigation against the Defendants, to the Defendants.
[22] 	Having failed to comply with the provisions of s 3(2)(a) of the Act, if the plaintiff was keen to proceed with the litigation, he was obliged to bring an application in terms of s 3 (4) of the Act. That section states as follows:
“3(4)(a) If an organ of state relies on the creditor's failure to serve a notice in terms of subsection (2) 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;
(iii)	and the organ of state was not unreasonably produced by the failure.”
Now in terms of s 12(1) of the Prescription Act, subject to the provisions of subsections (2), (3) and (4) prescription shall commence to run as soon as the debt is due. The debt in respect of a claim based on the incident that took place during July 2003 became due on or about July 2003. Therefore, the debt in respect of that incident became due during July 2003.  Prescription commenced to run in or about July 2003 until a period of three years had passed. In terms of S 12(1) of the Prescription Act, the Plaintiff’s claim or debt against the Defendants became due in July 2003. It was valid, in terms of s 11(d) of the Prescription Act, for a period of three (3) years from the said July 2003. In July 2006 it and was extinguished by prescription in terms of s 11(d) of the Prescription Act.  This Court may not grant the plaintiff the condonation relief that he seeks because the debt has, to its satisfaction, been extinguished by prescription. The Prescription Act renders a right to claim unenforceable after the lapse of a certain period, in this case after the lapse of a period of three years after the debt became due. 
[23] 	During argument, Advocate McGregor Kufa, counsel who appeared for the plaintiff in this application for condonation, argued that the plaintiff's cause of action did not arise in July 2003 but in October 2008 when he received the Court order in which he was notified about the success of his appeal. Counsel's attention was thereupon drawn to the fact that the plaintiff had not in his amended combined summons pleaded the date of October 2008.  This claim is inconsistent with the particulars of claim.  In paragraph 7.3 of founding affidavit, he stated that: “I became aware of the debt and or alternatively the names of the debtor on the date of acquittal, being 6 October 2008.” This was never pleaded in his particulars of claim. The Plaintiff is therefore not entitled to rely on it.

NON-JOINDER
[24]	A question of a joinder, whether it be a misjoinder or non-joinder, may be raised in terms of Rule 30 of the Uniform Rules of Court, by way of an application to set the summons aside or a plea in abatement to a combined summons.  The defence of non-joinder or misjoinder, is merely dilatory. It must be taken in initio litis before the issue is joined, for it cannot be raised for the first time at trial.  Where a plea in abatement is taken on the ground that a person who should have been made a party has not been joined, the onus is on the defendants to prove their plea and plea in abatement. Procedurally, the plea in abatement must be dealt with first before the Court gets into the merits of the action.  Where such a plea is upheld, the Court will not dismiss the action but will instead stay it until the proper party, in casu, the Minister of Justice and Constitutional Development has been joined. See Peacock v Marley 1934 AD. 1.
In my view, based on the first two special pleas the plaintiff has not made out a good case for relief that he seeks. The application cannot succeed. I therefore make the following order:
The application for condonation is refused.

________________
						PM MABUSE
			JUDGE OF THE HIGH COURT

Appearances:
Counsel for the Applicant:					Adv McGregor Kufa
Instructed by:					Makhafola & Verster Incorporated

Counsel for the Respondents:
Instructed by:					The State Attorney
						
Date on the opposed roll before Mabuse J:		12 & 14 July 2021
Date of Judgment:		     		      	 11 August 2021