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                                                                        REPORTABLE/NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)              

Case no: 675/2008

Date heard: 3 November 2014

                                                                                    Date delivered: 6 November 2014

In the matter between

PUMZA MALEFANE                                                                                                      Plaintiff

vs

BUFFALO CITY MUNICIPALITY                                                                      First Defendant

ANSWIN GREGORY ESBEN                                                                      Second Defendant

THE MINISTER OF SAFETY

AND SECURITY                                                                                              Third Defendant

JUDGMENT

PICKERING J:

[1] Plaintiff is Ms. Pumza Malefane, an adult female attorney.  First defendant is the Buffalo City Municipality.  Second defendant is Answin Esben, an adult male traffic officer in the employ of first defendant.  Third defendant is the Minister of Safety and Security. 

[2] It is common cause that on 25 March 2005, and at King William’s Town, plaintiff was arrested and detained until approximately 2 am on 26 March 2005.  Plaintiff alleges that her arrest and detention was effected by the second defendant together with certain policemen, all of whom were acting within the course and scope of their employment with first and third defendants respectively.  She alleges that her aforesaid arrest and detention were unlawful.  She accordingly issued summons against the three defendants on 25 March 2008, claiming damages arising out of the said arrest and detention.  The summons was served on the defendants on the same day. 

[3] No reference was made in the particulars of claim to any compliance by plaintiff with the provisions of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“the Act”) in respect of the giving of notice to the defendants. 

[4] Thereafter, on 17 June 2009, plaintiff filed a notice of intention to amend her particulars of claim by the inclusion of a second claim for damages, against first and second defendants only, based on her alleged wrongful and malicious prosecution by second defendant.  She alleged in this regard that subsequent to her arrest and detention the second defendant wrongfully and maliciously set the law in motion by laying false charges against her of driving a motor vehicle under the influence of intoxicating liquor, failing to comply with the instructions of a peace officer, assaulting a peace officer and refusing to allow a specimen of blood to be taken from her.  She avers that when laying a charge the second defendant had no reasonable or probable cause for so doing.  She avers that as a result of second defendant’s conduct she was prosecuted at the magistrate’s court, King William’s Town, until the charges were finally withdrawn “during or about April 2009.”

[5] Plaintiff further sought to amend the particulars of claim by the inclusion of an averment to the effect that she had duly complied with the notice provisions of the Act. 

[6] The proposed amendment was objected to by the defendants.  It is not necessary to detail the history of the application for an amendment.  It eventually came before me only on 24 November 2011 on which date I granted plaintiff leave to amend her particulars of claim in accordance with a redrafted particulars of claim in which the claim for malicious prosecution was included as claim 2 and the requisite averments concerning the notice provisions of the Act were made. 

[7] For reasons which are not necessary to detail here, the amendment to the particulars of claim was thereafter only effected on 1 August 2012. 

[8] First and second defendants duly filed a Special Plea to plaintiff’s amended particulars of claim.  In the first such special plea it is averred that plaintiff’s claim in respect of her unlawful arrest and detention on 25 March 2005 (claim 1) had prescribed in as much as her summons was only issued and served on first and second defendants on 25 March 2008. 

[9] It was further averred that claim 2, in respect of malicious prosecution, had also prescribed in that the original summons issued and served on first and second defendants on 25 March 2008 had not included a claim for malicious prosecution, this claim only being raised for the first time in the amended particulars of claim filed of record on 1 August 2012, more than three years after the cause of action had arisen. 

[10] The second special plea raised was to the effect that plaintiff had failed to comply with the provisions of the Act in that she had failed to give the requisite notice to the first defendant. 

[11] The third defendant also raised a special plea of prescription together with a special plea of non-compliance with the notice provisions of the Act. 

[12] It was agreed at a Rule 37 conference between the parties that the issues raised by the respective special pleas be adjudicated upon separately from the issues relating to the merits and quantum. 

[13] At the separated hearing of the special pleas certain evidence was led before me. 

[14] It will be convenient to commence with the evidence of the plaintiff relating specifically to claim 1, namely the claim against the three defendants arising out of plaintiff’s alleged wrongful arrest and detention. 

[15] Plaintiff is an attorney of this court, having commenced practice for her own account since her admission as such during 1998.  Her offices are situate at the ECDA Building in Mthatha. 

[16] Plaintiff stated that the incident giving rise to the action occurred on 25 March 2005 in King William’s Town.  She was on her way to Port Elizabeth when she was stopped by second defendant, a traffic officer, and, eventually, arrested and detained until the early hours of 26 March 2005.  She stated that she was psychologically and emotionally shattered by her treatment at the hands of second defendant and certain policemen.  Because of the stress and trauma occasioned thereby she fell ill and was only able to return to Mthatha some days later. 

[17] On her return to Mthatha she was still extremely upset and angry.  She stated that, as an experienced attorney, she was well aware of the notice provisions of the Act.  Accordingly, one of the first things she did on her return to her office was to draft, together with her professional assistant, a Ms. Nyobole, the requisite notices in terms of the Act, one addressed to the Municipal Manager of first defendant and the other to the Minister of Safety and Security in Pretoria.  At that stage her claim in respect of malicious prosecution had not yet arisen and the two letters therefore had reference only to claim 1. 

[18] She stated that the letters were taken to the post office by Ms. Nyobole for posting by registered mail.  In due course Ms. Nyobole returned with the proof of posting receipts which were stapled onto the file cover.

[19] Although plaintiff could no longer remember the precise date of posting she stated that it was before 6 April 2005 because, on that day, she received a telephone call informing her that the building in which her office and other businesses were housed had burned down.  She stated that on arrival at the scene she discovered that her offices had been gutted by the fire.  Whatever files and equipment had not been destroyed in the fire had been irreparably damaged by the water used by the firemen to extinguish the blaze.  Her file containing the stapled proof of posting receipts was amongst those files which were destroyed. 

[20] Asked by Mr. Wood, who appeared for all three defendants, why she had not immediately taken steps to obtain duplicate copies of the receipts, she stated that she had never anticipated that the defendants would deny having received the letters.  Furthermore, the letters had never been returned to her by the post office, which would have been the case had they not reached their destinations.  It was therefore only during or about June 2008, when the special pleas were filed by the defendants, that she approached the post office in an attempt to obtain duplicate copies of the receipts.  She was advised by the relevant officials that the Mthatha post office was extremely busy and that it would be impossible to trace the receipts in their records after the lapse of such a long time. 

[21] With regard to the summons which had been issued and served on 25 March 2008, she stated that the particulars of claim had been drafted by counsel, Mr. Mbenenge, although she herself had signed them.  The summons had to be filed on the very day on which she received the draft particulars.  Because of the extreme urgency she had not noticed, in rushing to Grahamstown to file the documents, the omission of any averment of compliance with the provisions of the Act.

[22] Ms. Nyobole testified that during 2005 she was in the employ of plaintiff as a professional assistant.  She has since been admitted and is practising as an advocate.  She stated that she had heard of plaintiff’s arrest and detention over the Easter weekend.  When plaintiff thereafter returned to the office she was extremely angry and said that she was going to sue the defendants.  Plaintiff told her that letters of demand had to be sent to the Municipal Manager of first defendant and to the Minister of Police.  Plaintiff then dictated to her the requisite letters of demand.  After they had been drafted and typed Ms. Nyobole took them herself to the Sutherland Street post office in Mthatha because, at that time, plaintiff had no messenger in her employ. 

[23] According to Ms. Nyobole she duly posted the two letters by registered post.  On her return she stapled the proof of posting receipts to the inside of the front cover of the file.  She could not remember the precise date of posting but thought it was approximately a week before the fire on 6 April.  She did not know what had happened to the file in consequence of the fire. 

[24] Ms. Mxunyelwa testified on behalf the first and second defendants.  She stated that she has been employed by first defendant as Records Manager since December 2009.  As such she has oversight of all records of the first defendant including records of incoming and outgoing mail.  She stated that strict control was exercised over the handling of mail.  She explained that one employee was tasked with collecting the mail from the post office.  This mail was placed by the post office into a mail bag which was sealed with a padlock.  The mail bag was brought by the employee to first defendant’s offices where the bag was opened in the presence of the employee by the supervisor who was in possession of the key to the padlock.  The bag was then emptied and all items in the bag were recorded in an “incoming mail register” by the supervisor.  This register is a so-called counter book.  One copy of each item was kept on file and the items themselves were then sent to the relevant directorates.  Ms. Mxunyelwa stated that the supervisor during 2005 was a certain Pam Knickelbein.

[25] She stated further that the date and reference number of all registered slips which were in the mail bag were also recorded in the register.  The slips would then be taken back to the post office for collection of the registered items and, on return, these items would be checked against the slips recorded in the register. 

[26] She stated that prior to testifying she had checked the incoming mail registers from March 2005 and that there was no record contained therein of any registered slips or items having been received from plaintiff.  She stated accordingly that she could discount any possibility that plaintiff’s letter had been received.  In this regard she said that, in her view, the system in place was perfect and that there was no chance whatsoever of any item not being recorded in the register if in fact it had been received from the post office.  She conceded, however, that a number of first defendant’s employees were involved from time to time in the collection and recording of mail but reiterated that if everything had been functioning properly, as she was sure had been the case then the receipt of plaintiff’s letter would have been recorded.  The aforesaid Pam Knicklebein, who had been the supervisor at the relevant time, was not called as a witness and I was not informed whether she had been available to testify or not. 

[27] Both plaintiff and Ms. Nyobole are officers of the court.  They both testified under oath that the requisite letters had been sent.  Both were good witnesses who impressed me as being honest.  Moreover, their evidence that the letters had been dispatched by registered post prior to 6 April 2005 is, in my view, entirely in accordance with the probabilities.

[28] Plaintiff is an attorney.  Her evidence that she was well aware of the notice provisions of the Act was not challenged.  She arrived back in Mthatha still feeling extremely angry and upset at her treatment at the hands of second defendant.  In these circumstances it is, in my view, probable that she would have immediately set about dispatching the requisite letters to the defendants.  Furthermore, Ms. Nyobole’s evidence that she had been involved in the drafting of the letters and that she herself had posted the letters by registered mail at the Sutherland Street post office was unshaken. 

[29] Plaintiff’s evidence that her office, along with others, was gutted in a fire on 6 April 2005 was not disputed.  Mr. Wood, however, criticised the fact that plaintiff had not, immediately after the fire, obtained copies of the registered receipts from the post office at a time when it would still have been possible to do so, had the letters in fact been sent.  I do not believe that this criticism is in any way justified.  Plaintiff stated in this regard that she had no reason to anticipate that it would be alleged in due course that the letters had not been received by the defendants.  Most importantly, she testified that the letters had never been returned to her by the post office as being undelivered.

[30] I am satisfied in all the circumstances that plaintiff has proved that the requisite notices were duly posted by registered mail to the defendants.  That, however, is obviously not the end of the matter.  The next issue to be determined is whether the notices were in fact received by the defendants.

[31] Section 4 of the Act requires that a notice must be served on an organ of state by, inter alia, sending it by hand or by sending it by certified mail. 

Section 7 of the Interpretation Act 33 of 1957 provides as follows:

“Where any law authorizes or requires any document to be served by post, whether the expression ‘serve’, or ‘give’, or ‘send, or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

[32] In view of my finding that the notices were duly posted by registered post by plaintiff, service of the notices is deemed to have been effected and the onus rests on the defendants to prove that the notices were, in fact, never received.  Compare Vengatsamy v Scheepers 1946 NPD 84.

[33] Mr. Wood submitted that the evidence of Ms. Mxunyelwa was decisive of the matter with regard to the first and second defendants.  He submitted that her evidence established that the system was as foolproof as was possible and that the possibility that the notices were not received by the defendants could safely be discounted. 

[34] For his part, Mr. Hobbs, for the plaintiff, submitted that it was clear from Ms. Mxunyelwa’s evidence that a number of persons were tasked at any given time with the fetching and recording of received mail at first defendant’s offices.  He submitted that it was therefore quite possible, as happens in any large bureaucratic organisation, that mistakes were made from time to time.  I agree.  Experience teaches one that no administrative system is in fact perfect and that mistakes do happen from time to time because of human fallibility.  In this regard it is also important to bear in mind that Ms. Mxunyelwa was not the Records Manager during 2005 and was therefore not the employee best placed to testify as to the proper functioning of the mail system at that time.  Whilst Ms. Mxunyelwa may have put in place a failsafe system she was not in a position to testify as to the security of the system in place during 2005.  All that her evidence really amounts to is an averment that the mail register does not contain any entry reflecting the receipt of plaintiff’s notice during 2005. 

[35] It is in this context that plaintiff’s undisputed evidence that the letters were never returned to her by the post office is most material.

[36] In all the circumstances, I am satisfied that first and second defendants have failed to discharge the onus upon them and that, on a balance of probabilities, the said notice was received by the first defendant.

[37] No evidence was led on behalf of the third defendant with regard to the non-receipt of the notice addressed to the Minister of Safety and Security.  In these circumstances I am also satisfied, having regard to the evidence of plaintiff and Ms. Nyobole, that the notice was received by the third defendant.

[38] It is also clear, having regard to the provisions of s 4 of the Interpretation Act 33 of 1957, which provides that when any particular number of days is prescribed for whatever purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, that the summons which was filed and served on the defendants on 25 March 2008 interrupted the running of prescription and that claim 1 has therefore not prescribed.  Mr. Wood was constrained to concede as much. 

[39] The special pleas filed on behalf of all three defendants in respect of claim 1 therefore fall to be dismissed. 

[40] I turn then to consider the special plea raised with regard to claim 2, namely, that the said claim had prescribed at the time of issue of summons.

[41] A great deal of evidence was led concerning the date on which plaintiff’s cause of action arose.  In the view that I take of the matter it is not necessary to deal with this evidence in any detail.  I accept that, at best for plaintiff, she only became aware of the fact of the withdrawal of the charges against her when she was advised thereof by the Control Prosecutor in King William’s Town, Mr. Majibana, on 6 April 2009, and that her cause of action accordingly arose on that date. 

[42] Plaintiff delivered the requisite notice in terms of the Act to the Municipal Manager on 13 May 2009 and it is not disputed that such notice was duly received. 

[43] As stated above, plaintiff was granted leave on 24 November 2011 to file an amended particulars of claim introducing a new claim for damages arising out of her alleged malicious prosecution by second defendant.  For some reason, however, which it is not necessary to deal with, the amendment to the particulars of claim was eventually only effected on 1 August 2012, more than three years after plaintiff’s cause of action had arisen on 6 August 2009.  On the face of it, therefore, plaintiff’s claim 2 had already prescribed when the amendment was effected. 

[44] Mr. Hobbs submitted, however, if I understood him correctly, that the running of prescription had been interrupted by the service on the defendants of plaintiff’s notice of intention to amend her particulars of claim or, at the very least, by the granting to plaintiff of leave to amend her particulars of claim on 24 November 2011, both of which occurred within a period of 3 years from the date on which her cause of action arose.  He referred in this regard to the provisions of section 15(6) of the Prescription Act 68 of 1969 which provide as follows:

“For the purposes of this section ‘process’ includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.”

[45] He submitted that the notice of intention to amend constituted a “process” for purposes of section 15 of the Prescription Act.  He very properly referred me, however, to the matter of Peter Taylor and Associates v Bell Estates (Pty) Ltd and Another 2014 (2) SA 312 (SCA).  In that matter it was held that a notice of joinder did not constitute a “process whereby the creditor claims payment of the debt” for purposes of s 15(1) of the Prescription Act. 

[46] It seems to me, on a parity of reasoning, that a mere notice of intention to amend or an order granting a plaintiff leave to amend in order to introduce a new cause of action can never be said to constitute a “process” as aforesaid.  It would, in my view, only be once the proposed amendment was actually effected that the running of prescription would be interrupted.  A notice of intention to amend can, in my view, no more interrupt prescription than would a notice of intention to institute legal proceedings delivered in terms of s 4 of Act 40 of 2002.

[47] Because the amendment to the particulars of claim was only effected on 1 August 2012, more than 3 years after the cause of action had arisen, the plaintiff’s claim in respect of her alleged malicious prosecution has prescribed.  The special plea must therefore succeed.

[48] I have given considerable thought as to the issue of costs in view of the outcome of the special pleas.  It seems to me, in the exercise of my discretion, that the fairest and most appropriate order would be to order that costs follow the result.

Accordingly the following order will issue:

1.    The special pleas in respect of claim 1 are dismissed with costs.

2.    The special plea in respect of claim 2 is upheld with costs and plaintiff’s action against first and second defendants in respect of claim 2 is dismissed with costs.

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J.D. PICKERING

JUDGE OF THE HIGH COURT  

 

Appearing on behalf of Plaintiff:      Adv. Hobbs

Instructed by: Neville Borman & Botha: Ms. Carinus

 

Appearing on behalf of Defendants:     Adv. Wood

Instructed by: 1^st and 2^nd: Whitesides Mr. Nunn

                        3^rd Netteltons, Mr. Marabini

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