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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case no: 458/03
In the matter between:
JUANINE SHARON
TAYLOR Appellant
and
THE MINISTER FOR SAFETY AND
SECURITY First Respondent
HENDRIK JACOBUS STEPHANUS RAUTENBACH
Second
Respondent
_________________________________________________________________
Coram: Navsa,
Conradie et Van Heerden JJA
Date of hearing: 18 November
2004
Date of delivery: 30 November
2004
Summary: Special plea ─ notice of intention
institute action against the Minister and a member of the South African Police
Service
not in compliance with s 57(2) of the South African Police Service Act
68 of 1995 in that it was not served on the Provincial Commissioner
─
upheld in court below ─ held in this court that on the evidence the
Provincial Commissioner maintained two offices
and that service on either
sufficed ─ appeal
upheld.
________________________________________________________
JUDGMENT
________________________________________________________
NAVSA
JA:
[1] The question in this appeal is whether the Court below, the Port
Elizabeth High Court (Norman AJ), was correct in upholding the
special plea of
the two respondents to the effect that the provisions of s 57(2) of the
South African Police Service Act 68
of 1995 (the Act) were not complied with by
the appellant, Juanine Sharon Taylor, before she instituted an action against
them claiming,
inter alia, damages for unlawful arrest and detention.
[2] The court below dismissed the appellant’s application for
leave to appeal. The present appeal is with the leave of this
Court.
[3]
Section 57 of the Act, which has subsequently been repealed, provided as
follows:
‘(1) No legal proceedings shall be instituted against the
Service or any body or person in respect of any alleged act performed
under or
in terms of this Act or any other law, or an alleged failure to do anything
which should have been done in terms of this
Act or any other law, unless the
legal proceedings are instituted before the expiry of a period of 12 calendar
months after the
date upon which the claimant became aware of the alleged act
or omission, or after the date upon which the claimant might be reasonably
expected to have become aware of the alleged act or omission, whichever is the
earlier date.
(2) No legal proceedings contemplated in subsection (1) shall
be instituted before the expiry of at least one calendar month after
written
notification of the intention to institute such proceedings, has been served on
the defendant, wherein particulars of the
alleged act or omission are
contained.
(3) If any notice contemplated in subsection (2) is given to the
National Commissioner or to the Provincial Commissioner of the province
in
which the cause of action arose, it shall be deemed to be notification to the
defendant concerned.
(4) Any process by which any proceedings contemplated
in subsection (1) is instituted and in which the Minister is the defendant
or
respondent, may be served on the National or Provincial Commissioner referred
to in subsection (3).
(5) Subsections (1) and (2) shall not be construed as
precluding a court of law from dispensing with the requirements or prohibitions
contained in those subsections where the interests of justice so
require.’
[4] The question in this appeal is whether the
appellant’s notice of intention to institute action, served at the Mount
Road
police station in Port Elizabeth on 22 April 2002, was proper notice in
terms of s 57(2) of the Act. The adequacy of the contents
of the notice for the
purposes of s 57 is not in dispute. It is accepted that notice on 22 April 2002
is within the time limits contemplated
in s 57. The question for decision in
this appeal is thus confined to whether service on the Mount Road police station
was service
on the Eastern Cape Provincial Commissioner. The facts against which
this question has to be decided are set out hereafter.
[5] The
appellant is a businesswoman. The first respondent is the Minister for Safety
and Security, cited in his official capacity
as the Minister responsible for the
South African Police Service (SAPS). The second respondent is Captain Hendrik
Jacobus Stephanus
Rautenbach (Rautenbach), a member of the SAPS.
[6] It
is common cause that the appellant was arrested on 24 May 2001 at Johannesburg
International Airport by Rautenbach in terms
of a warrant of arrest, obtained at
his instance, on the basis of an alleged breach by the appellant of bail
conditions. The appellant
was subsequently detained and transported to Port
Elizabeth via Kroonstad, where she was detained in a police cell. The appellant
was released after her arrival in Port Elizabeth.
[7] In her particulars
of claim the appellant alleged that, in arresting and detaining her, the police
acted unlawfully and, in consequence,
she was injured in her good name, her
right to bodily integrity was infringed and she suffered mental anguish. She
alleged that,
as a result, she sustained damages in an amount of R250 000-00 for
which the two respondents are jointly and severally liable.
[8] In
their plea on the merits the respondents denied that the arrest was unlawful.
Indeed, they denied any unlawful behaviour on
the part of the police. It is
common cause that, in arresting the appellant and transporting her to Port
Elizabeth, Rautenbach and
other members of the SAPS were acting within the
course and scope of their employment.
[9] As stated earlier, the arrest
and detention took place on 24 May 2001. In terms of s 57(1) of the Act the
appellant was required
to institute action within 12 months after that date and
to give notice of the intended action to the respondents at least one month
before the institution of the action. The summons in this case was issued on
23 May 2002 and served on the respondents on the
same day. Proceedings were
therefore instituted within the prescribed time. In their special plea the
respondents contended that
notice of intention to institute action as
contemplated by s 57(2) of the Act was not given. At the pre-trial conference
the respondents
informed the appellant that their case in respect of the special
plea was that neither the Provincial nor the National Commissioner
were given
proper notice in terms of s 57(2) of the Act.
[10] At the
commencement of proceedings in the Court below it was agreed that only the
special plea would be dealt with and that evidence
would be led in this regard.
[11] The only witness to testify was Captain Jacobus Gerrit Paxton
(Paxton). The present appeal is to be determined on the basis of
his evidence.
It is therefore necessary to discuss in some detail, in the paragraphs that
follow, the relevant parts of his evidence.
[12] Paxton is the Acting
Commander, Loss Management, in the office of the Eastern Cape Provincial
Commissioner of Police. He testified
that his office was a section within the
Provincial Commissioner’s office. He was stationed at the Mount Road
police station
in Port Elizabeth. He was also so stationed and so designated at
the time that the appellant’s notice of intention to institute
action
against the respondents was delivered there on 22 April 2002.
[13] Paxton explained that, when a notice of intention to institute
action against the first respondent or a member of the SAPS is
served on the
Provincial Commissioner’s office, it is sent to him and he then considers
whether there has been compliance with
s 57 of the Act.
[14] The
official letterhead used by Paxton, in correspondence with potential litigants
or others, describes his office as Office of the Provincial Commissioner,
Loss Management. The postal address stated is a private bag address in Port
Elizabeth.
[15] It is common cause that the appellant’s
notice of intention to institute action in respect of the unlawful arrest and
related
incidents was addressed to the first respondent, care of the legal
division of the Commissioner of Police at the Regional Head Office,
Mount Road,
Port Elizabeth.
[16] When the notice was delivered at the Mount Road
police station on 22 April 2004 it was duly stamped with an official stamp,
recording
receipt in the name of an Assistant Police Commissioner,
PZ Nomvuka. It was also stamped with an official stamp of the South
African
Police Service’s Provincial Head of Detective Services, Eastern Cape,
bearing the date 22 April 2002. It appears that
the notice was stamped in this
manner because the abovementioned Assistant Commissioner, who during April 2002
was still stationed
at Mount Road in the same building as Paxton, was the
Provincial Head of Detective Services.
[17] On 23 April 2002 the
appellant’s notice, as per the usual procedure, was placed on
Paxton’s desk at his office at
the Mount Road police station.
Paxton’s official stamp bearing the words ‘Legal Services Eastern
Cape Port Elizabeth’
and ‘South African Police Service’ and
the date ‘2002-04-23’ was placed on the appellant’s notice.
On the same day Paxton himself signed the notice.
[18] According to
Paxton the process of relocating the Commissioner’s office from the Mount
Road police station in Port Elizabeth
to Zwelitsha commenced on 7 January 2002.
The Commissioner himself and members of his senior management staff had moved to
Zwelitsha.
At the time that the notice was delivered, Assistant-Commissioner
Nomvuka had not yet relocated to Zwelitsha. He remained behind
in the same
building that housed Paxton’s office. During the course of the year other
members of the Commissioner’s staff,
including some
Assistant-Commissioners, followed the Commissioner and moved to
Zwelitsha.
[19] Paxton’s evidence concerning the relocation of the
office of the Commissioner of Police requires careful scrutiny. Paxton
gave
evidence in the court below on 23 April 2003. At that time, according to Paxton,
the Commissioner’s office had only partially
relocated to Zwelitsha.
Paxton explained that some of the sections, such as his own, were still located
at the Mount Road police
station.
[20] Paxton testified that even though
the Commissioner himself had moved to Zwelitsha, the Legal Services Department
under which
his office fell decided to continue accepting notices of intention
to institute action at the Mount Road police station. This was
done for a period
of several weeks after 7 January 2002. Later a decision was made that no future
notices received at the Mount Road
police station would be regarded as proper
notices in terms of s 57 of the Act. Paxton could not recall the date of this
decision,
but testified that, at the time that the appellant’s notice was
served, the decision had already been made.
[21] According to Paxton,
when a notice was served on the Commissioner’s office in Zwelitsha, it
was, nevertheless, redirected
to his office at the Mount Road police station to
be dealt with.
[22] Paxton testified that notices were never, in either
instance (Mount Road or Zwelitsha), served on or received by the Commissioner
personally. Such a notice was received by a member of the Commissioner’s
staff and directed to Paxton for attention and reply.
[23] It is common
cause that members of the public were not notified by way of any communication
from the Commissioner’s office
that he had partially relocated to
Zwelitsha. Representative bodies of the legal profession did not receive notice
of the relocation
either.
[24] Against this background, where the
Commissioner in fact maintained two offices at the relevant time, service on any
one of the
offices would in my view suffice as proper notice in terms of s 57(2)
of the Act. The arbitrary decision by the Legal Services Department
not to
continue to accept notices at the Mount Road police station did not change the
fact that the Commissioner continued to maintain
an office
there.
[25] This is not a case like Groepe v Minister of Police and
Others 1979 (4) SA 182 (E), where the notice was not served on the
Commissioner at his office, but rather at a police station where the acts
complained of had been committed. It was held that the notice was not proper
notice as contemplated in the then applicable statute.
[26] Likewise, in
Minister of Police v Mamazela 1977 (1) SA 113 (T), the notice was
addressed to a Divisional Commander of the South African Police at a police
station and to a
station commander at another police station, neither police
station being an office of the relevant Commissioner. It was held that
notice to
those officers was not notice to the Commissioner.
[27] In the Groepe
case the purpose of the notice contemplated in a section like s 57 was
stated as follows (at 184H):
‘The purpose for which this notice is
required to be given is of importance. That purpose is to ensure that the State,
or the
person to be sued, receives warning of the contemplated action and is
given sufficient information so as to enable it or him to ascertain
the facts
and consider them. The section is enacted for the benefit of the recipient of
the notice, and that purpose must be served.’
[28] This purpose was
achieved in the present case. The Commissioner maintained two offices
simultaneously. Service of the notice
was effected on an Assistant-Commissioner
who was based at the Commissioner’s Mount Road police station office. The
stamp indicating
his designation as Head of Detective Services was incidental.
The notice was after receipt thereof despatched to Paxton, the very
person
charged with the responsibility of dealing with such notices on behalf of the
Provincial Commissioner. The court below erred
in concluding that the notice was
received by the Provincial Head of Detective Services and not by the office of
the Commissioner
and that s 57(2) had therefore not been complied
with.
[29] In her judgment, Norman AJ stated that if one were to permit
service on any employee who is a member of the SAPS, other than
the
Commissioner, there would be chaos and the provisions of the Act would thereby
be disregarded. The learned judge stated further
that it would be untenable to
contend that, when notice to the Commissioner is enjoined, notice to any of his
inferior officers will
be sufficient. She relied on the Mamazela case for
these propositions. As stated above the Mamazela case is clearly
distinguishable. The statements by Norman AJ are in general not contentious, but
the learned judge erred in construing
the facts. Each case must, of course, be
decided on its own facts.
[30] It is difficult to understand why, in the
circumstances referred to above, the respondents adopted the attitude evidenced
in
the litigation that ensued.
[31] I record that before us the
appellant appeared in person. In the light of the conclusions reached by me I
make the following
order:
1. The appeal is upheld with costs.
2. The
order of the court below is set aside and in its place is substituted the
following:
‘The special plea is dismissed with
costs.’
_________________
MS NAVSA
JUDGE OF APPEAL
CONCUR:
CONRADIE JA
VAN HEERDEN JA
SAFLII:
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.RTF of original document