the HIGH COURT OF south africa
FREE STATE PROVINCIAL DIVISION

       Reportable: YES/NO	

Case No: 1294/2019

In the matter between:
MALEFETSANE PAULUS RAMOHAPI			                             Plaintiff

and

THE MINISTER OF POLICE	                First Defendant

THE NATIONAL DIRECTOR: 
PUBLIC PROSECUTIONS                                                    	           Second Defendant

THE MINISTER:
JUSTICE AND CONSTITUTIONAL DEVELOPMENT           	               Third Defendant

Bench:	Opperman J 
Heard:   	11 June 2024 
Delivered: 	3 October 2024. This judgment was handed down in court and electronically by circulation to the parties’ legal representatives via email and release to SAFLII on 3 October 2024. The date and time of hand-down is deemed to be 15h00 on 3 October 2024
Summary: 	Civil procedure – Action against state – Special plea of prescription – 
Non-compliance with Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 condoned
ORDER

The following orders are made:
1.	The plaintiff’s claim of malicious prosecution against the first defendant has prescribed and is accordingly dismissed. The plaintiff is to pay the first defendant’s costs on scale C.
2.	The special plea of prescription raised by the second defendant is upheld and the plaintiff’s claim of malicious prosecution against the second defendant is accordingly dismissed. The plaintiff is to pay the second defendant’s costs and on scale C. 

JUDGMENT

Opperman J
[1]	The issue for adjudication is that of prescription after non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act). By agreement between the parties, it was ordered in terms of rule 33(4), that the matter of prescription be separated from the rest of the action. The only claim that is still relevant is that against the second defendant and of malicious prosecution. 

[2]	The predicament of the plaintiff is that the claim would have prescribed had he not served on the State Attorney on 22 March 2019. He served in time but that caused transgressions of ss 3 and 5(2) and brought s 5(3) of the Act into play. Section 5(2) specifically orders that no process for the institution of legal proceedings may be instituted before the expiry of 60 days after the notice in terms of s 3 was served. A notice in terms of s 3(2)(a) must be served within six months from the date on which the debt became due. Section 5(3) complicates the situation for the plaintiff in that:
‘If any process referred to in subsection (1) has been served as contemplated in that subsection before the expiry of the period referred to in subsection (2), such process must be regarded as having been served on the first day after the expiry of the said period.’ (Accentuation added)

[3]	The following dates are important regarding the claim of malicious prosecution against the second defendant:
-	The plaintiff was acquitted on appeal on 31 March 2016. The cause of action arose on 31 March 2016; the debt became due on this date.
-	The claim would have prescribed on 30 March 2019.
-	Service of the claim against the second defendant was effected on 22 March 2019 on the Office of the State Attorney.
-	The letter of demand (notice) was sent by registered mail on 18 February 2019 to the Director of Public Prosecutions. Notice should have been given on or before 30 September 2016. According to both the plaintiff and the second defendant the notice was only given on 18 March 2019. The sixty days before summons could have legislatively legally been served thus expired on or about 3 May 2019. 
-	Condonation for non-compliance with the Act of s 3 and s 5 was granted on 9 June 2022 (June 2022 – order). This is the order:
‘IT IS ORDERED THAT
1.	The Applicant’s failure to comply with the provisions of Section 3 of Act 40 of 2002 is condoned;
2.	The Applicant’s premature service of the summons upon the Respondents in the main proceedings under case 1294/2019 is condoned.’ 

[4]	Counsel for the second defendant correctly argued that notwithstanding the condonation granted, and in terms of the prevailing legislation, the service of the claim had only happened when the 60 days – period have expired, and not 22 March 2019. The court that dealt with the condonation did not make any declaration on prescription since it was not applied for it to do so. It only condoned the early service. The finding of the court that granted the condonation is correct because the claim had not prescribed at the time of the application. The claim became prescribed in terms of s 5(3) of the Act after the court granted the condonation for the premature service. The court did not make a ruling on the effect of s 5(3) of the Act on the order. Section 5(3) of the Act is mandatory. The June 2022 – order did not disturb the working of s 5(3) of the Act.  
 
[5]	The above finding is made with due awareness of the fact that the Act was introduced to harmonize periods of prescription of debts owed by organs of state, and to make provision for a uniform requirement for the giving of notice in connection with the institution of legal proceedings. The Act came after a decision in the Constitutional Court in Mohlomi v Minister of Defence (Mohlomi). The Act is meant not only to bring consistency to procedural requirements for litigating against organs of state but also, it is clear, to render them compliant with the Constitution. The way in which it seeks to achieve a procedure that is not arbitrary and that operates efficiently and fairly both for a plaintiff and an organ of state is to give a court the power to condone a plaintiff's non-compliance with procedural requirements in certain circumstances. Thus, access to courts is facilitated, while at the same time procedures against large governmental organizations that need to keep their affairs in order, are regulated.

[6]	The purpose of having special requirements in place for the institution of action against a state body was depicted by Didcott J in Mohlomi: 
‘Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.’

[7]	The history of the litigation in this case is of concern. The special plea of prescription was served on 25 November 2019 by the defendants. The plaintiff did not reply to it. Notwithstanding being dominis litis on the issue, it was not brought to court by the defendants. Four years later, an eventual pre-trial hearing was held on 3 April 2023 during which there was no appearance for the State Attorney representing the defendants and after due notice to them. The presiding judge ordered that:
‘No appearance for the State Attorney. Pl (sic) is ready to set the matter down for trial. State Attorney to ensure that there is a written explanation in the file expl (sic) non—appearance.’ 

The order did not come to the notice of the State Attorney and reasons were not filed. The court was forced to certify the matter ready to go on trial. The issue of the special pleas was not canvassed at the pre-trial hearing.

[8]	Important is that counsel for the plaintiff conceded during the hearing of the matter on 11 June 2024 that only the claim of malicious prosecution against the second defendant is still alive for adjudication. It became common cause that the claim against the third defendant was withdrawn and the claim against the first defendant prescribed. The court will make an order on the prescription of the claim of malicious prosecution against the first defendant for the sake of completeness.

[9]	As to costs; in Mashavha v Enaex Africa (Pty) Ltd the approach to setting a scale of costs under Rule 67A (3) involves first identifying the appropriate scale based on the importance, value, and complexity of the case, and then considering whether the scale should be reduced due to any inartful or unethical conduct as identified in Rule 67A (2).

[10]	Counsel for the second defendant was only available on 11 June 2024 to deal with the special plea but the case was set down for three days for trial by the plaintiff. The plaintiff was duly informed of this, the court not. It only came to the attention of the court that the matter would not proceed on trial when the heads of argument for the plaintiff was filed on 10 June 2024. The heads of argument for the second defendant were handed up to the court at the start of the hearing on 11 June 2024. The attorneys for the plaintiff refused to amend the date to be only for the hearing of the special plea and to accommodate counsel for the second defendant. To add fuel to fire, the case was also set down for 2, 3 and 5 July 2024 by the plaintiff. The notice of set down was served on 19 February 2024. This notice was not withdrawn. On 28 February 2024 a notice of set down was served for 11, 12 and 14 June 2024 by the plaintiff. This is unacceptable; much time was wasted, and confusion reigned. Ultimately, the only claim that is still on the table is against the second defendant and for malicious prosecution, but this is not clear from the papers presented by the plaintiff. The court had to do some organisation of the file and sift through the evidence to ascertain the status of the case. For the sake of the expeditious administration of justice, the court let the matter proceed. 

[11]	Costs will follow the cause. Due to the extensive experience of counsel for the second defendant and the complications in the case, scale C shall apply against the plaintiff. 

[12]	ORDER
In result the following orders are made:
1.	The plaintiff’s claim of malicious prosecution against the first defendant has prescribed and is accordingly dismissed. The plaintiff is to pay the first defendant’s costs on scale C.
2.	The special plea of prescription raised by the second defendant is upheld and the plaintiff’s claim of malicious prosecution against the second defendant is accordingly dismissed. The plaintiff is to pay the second defendant’s costs and on scale C. 

   ________________________
                  OPPERMAN J

APPEARANCES
On behalf of plaintiff					T SNYDERS
Johannesburg
Mlozana Attorneys Inc.                                                                                                                                    Bloemfontein

On behalf of the defendants                               G J M WRIGHT
Bloemfontein
Office of the State Attorneys
Bloemfontein