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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case no: 1082/17

In the matter between:

MINISTER OF POLICE
APPLICANT

and

MFANUKA JACOB MASINA

RESPONDENT

Neutral citation:
Minister of Police v Masina (1082/17) [2019] ZASCA 24 (28 March
2019)

Coram:
Tshiqi, Wallis, Zondi and Van der Merwe JJA and Matojane AJA

Heard:
27 February 2019

Delivered:
28 March 2019

Summary:  Extinctive prescription – Commencement – Debt due when the creditor
has knowledge of the identity of the debtor and of the facts from which the debt arises
– knowledge of legal procedures and remedies not required.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Raulinga J sitting as
court of first instance):

1 The application for leave to appeal is granted with costs.
2 The appeal is upheld with costs.
3 The order of the high court is set aside and replaced by the following order:
‘The application is dismissed with costs.’

JUDGMENT

Matojane AJA (Tshiqi, Wallis, Zondi and Van der Merwe JJA concurring):

[1] During May 2012 the respondent, Mr Mfanuka Jacob Masina, then 34 years
old, was allegedly shot in the right ankle by a member or members of the South African
Police Service (SAPS), while he attending a community protest meeting. He instituted
an action against the Minister of Police (Minister) to recover damages in the aggregate
amount of R660 000.

[2] The Minister defended the action and delivered two special pleas to the
particulars of claim. The first special plea related to the failure to timeously comply with
s 3(1) and (2) of the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002  (the Act) and the second plea was a special plea of prescription as
contemplated by s 11(d) of the Prescription Act 68 of 1969  (the Prescription Act).

[3] On 19 February 2016 Mr Masina’s attorneys brought an application in terms of
s 3(4)(b) of the Act for condonation of the respondent’s non-compliance with the notice
provisions, and also sought costs in the event of opposition. The court below (Raulinga
J) sitting in the Gauteng Division of the High Court, Pretoria), upheld the application

and ordered the Minister to pay the costs of the application on the scale as between
attorney and client.

[4] The court a quo refused the Minister’s application for leave to appeal. The
Minister petitioned this court in terms of s 17(2)(b) of the Superior Courts Act 10 of
2013. The application for leave to appeal was referred for oral argument in terms of s
17(2)(d) of the Superior Courts Act 10 of 2013. The parties were directed, to address
the court on the merits if called upon to do so.

[5] In terms of s 3(4)(b) of the Act, the court may grant an application for
condonation if satisfied that:
(a) The debt has not been extinguished by prescription;
(b) Good cause exists for the failure by the creditor;
(c) The organ of the state was not unreasonably prejudiced by the failure.

[6] It is for the applicant for relief under this section to produce evidence to satisfy
the court hearing the application that the requirements of the section have been met.
In the high court, the argument revolved around the question of whether Mr Masina’s
claim had prescribed.

[7] In the affidavit in support of the condonation application Mr Masina stated that
he had been shot on 16 May 2012 while participating in the protest action. His claim
for damages against the police arose and became due then. Accordingly, the debt
would ordinarily have prescribed on 15 May 2015. The summons in the present action
was served on 19 May 2015.

[8] Mr Masina sought to overcome this problem by claiming that prescription had
not commenced running prior to February 2013. His reasons for saying this were set
out in the following paragraphs from his founding affidavit:
‘7.18  Months after being shot I learned that an acquaintance of mine, Mr Mthombosi
Perseverance Mngadi, who also partook in the protest action on 16th day of May 2012, was
also shot by members of the SAPS on the same date, and that Mr Mngadi laid a complaint
with the SAPS against the specific members of the SAPS who shot him.

7.19  I was never able to establish the identity of the police officer, alternatively police officers
who shot me and therefore never proceeded to lay a complaint with the SAPS. I was unaware
of any legal remedy, and I was under the impression that there was nothing I could do due to
the fact that the identity of the specific SAPS members was unknown to me.
7.20
I have never been party to civil litigation, and I do not have any knowledge of the legal
system.
8.1
During or about February 2013 I was approached by Mr Mngadi, as referred to above,
who requested me to consult with his attorneys regarding the events on 16 May 2012 as he
had instructed his attorney to institute a claim against the Minister of Police after also being
shot on the same date.
8.2
I agreed to give a statement to Mr Mngadi’s attorneys in order to assist him with his
claim that he had instituted against the Minister of Police. At no stage prior to being
approached by Mr Mngadi did I have any knowledge that any claim could be instituted against
the Minister of Police as a joint debtor.
8.3
On 10 September 2013 I give a statement to Mrs Willene van Zyl of Pieter Nel
Attorneys at Carolina. I enquired with Mrs. van Zyl as to the possibility of a claim being
instituted against the Minister of Police on my behalf, whereupon I was informed that I would
need to formally instruct Pieter Nel Attorneys prior  to any claim being instituted on my behalf.
. . .
8.5
During or about June 2014 I again consulted with Mrs Willene van Zyl of Pieter Nel
Attorneys and instructed Pieter Nel to institute a claim against the Minister of Police for the
unlawful conduct of an employee, alternatively the employees of the Minister of Police.’

[9] Thus the case for Mr Masina was that prior to being approached by Mr Mngadi
in February 2013, he did not have knowledge that a claim could be instituted against
the Minister as joint debtor for the wrongful actions of the members of the SAPS and
that prescription did not commence to run against him before February 2013. The
appeal, therefore, turns on the question whether the court below should have been
satisfied on the facts of this case that the debt had not been extinguished by
prescription.

[10] Section 12 of the Prescription Act reads:
‘(1) Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to
run as soon as the debt is due.

(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt,
prescription shall not commence to run until the creditor becomes aware of the existence of
the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the
debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed
to have such knowledge if he could have acquired it by exercising reasonable care.’

[11] Section 12(3) has two elements. In the first place, it requires ‘knowledge of the
identity of the debtor’. The second is ‘knowledge of the facts from which the debt
arises’. The factual situation is that Mr Masina knew that he had been shot by the
police. He argued that, because he did not know the identity of the policeman who
shot him, he believed that there was nothing that he could do. On this basis, it was
submitted that he did not have knowledge that his claim lay against the Minister and
therefore that he did not have knowledge of the identity of the debtor.

[12] Where knowledge of the identity of the debtor is concerned, the question is one
of fact, not of knowledge of the applicable law relating to the citation of that debtor or
any formalities, such as the giving of notice, that must be satisfied before an action
may be commenced. Those matters are within the province of legal procedure and
remedies. In the same way, when dealing with the facts giving rise to a claim, the
courts have consistently held that the plaintiff does not have to have knowledge of the
legal consequences of those facts. In Claasen v Bester1 this court in referring to cases
that have dealt with the question when prescription begins to run for the purposes of
ss 12(1) and (3) of the Prescription Act stated that:
‘These cases do not leave open the question posed and not answered in Van Staden. They
make it abundantly clear that knowledge of legal conclusions is not required before
prescription begins to run. There is no reason to distinguish delictual claims from others. The
principles laid down have been applied in several cases in this court, including most recently
Yellow Star Properties v MEC, Department of Planning and Local Government [2009] 3 All SA
475 (SCA) para 37 where Leach AJA said that if the applicant ‘had not appreciated the legal
consequences which flowed from the facts’ its failure to do so did not delay the running of
prescription.’

1 Claasen v Bester [2011] ZASCA 197; 2012 (2) SA 404 (SCA) para 15.

See also ATB Chartered Accountants (SA) v Bonfiglio [2010] ZASCA 124;[2011] 2 All
SA 132(SCA)  paras 14 and 18.

[13] Mr Masina knew full well that his claim lay against the police. That he did not
know whether the SAPS, the Minister or the Commissioner of the South African Police
Service should be cited, is immaterial. He should have taken steps to enforce his claim
immediately. As I have said, knowledge that the Minister should be cited as the
nominal defendant in an action against the police is a matter of legal procedure.

[14] Mr Masina relied on the judgment of this court in MEC for Education, KZN v
Shange2 to support his contention. In Shange the MEC for Education appealed against
the high court’s grant of condonation to a learner for non-compliance with s 3 of the
Act. A teacher’s belt tip had struck and injured the learner’s eye while the teacher was
at the time punishing another learner in June 2003. The teacher informed the 15 year
old learner that it was a mistake and the learner accepted it as such.

[15] In January 2006 the learner, then 18 years old, was advised that he should
complain to the Public Protector. An advocate at the office of the Public Protector
advised him that he should consult an attorney as he had a claim against the MEC.
He instructed an attorney to proceed with the claim. On 2 February 2006 the attorney
sent a s 3 notice to the Minister of Education rather than the MEC. In December 2008
summons was served on the MEC. The MEC delivered a special plea for dismissal of
the claim, based on her not having received a s 3 notice. This prompted the learner’s
attorney to first, dispatch a notice in terms of s 3 to MEC for Education and then bring
an application for condonation in terms of s 3(4)(a) of the Act.

[16] The Shange case is distinguishable from the present case in that the learner,
who was 15 years old at the time, had a bona fide belief that his teacher’s explanation
put an end to the matter.  This according to the court adequately explained the delay
in any steps having been taken until January 2006.  The court found that being a rural
learner, it could not be expected of him to reasonably have known not only that the
teacher was his debtor but also that the MEC was a joint debtor.  Only when he was

2 MEC for Education, KZN v Shange [2012] ZASCA 98; 2012 (5) 313 (SCA) (Shange).

informed of this fact in January 2006 did he know the identity of the MEC as his debtor
for the purposes of provisions of s 12(3). Mr Masina's reliance on the Shange judgment
was misplaced.

[17] For these reasons the court below should not have been ‘satisfied’ that the debt
had not become extinguished by prescription. Furthermore, although this was not
argued before the high court, it is difficult to see the basis for the court being satisfied
that there was good cause for Mr Masina’s failure to give timeous notice to the Minister
of Police. There was no explanation for his failure to try and pursue a claim after
February 2013 until June 2014. Furthermore, there was no explanation for the failure
of his attorneys to pursue the matter expeditiously once he instructed them to do so in
June 2014. The notice was only sent to the Minister of Police in September 2014. The
particulars of claim were prepared in February 2015, and the summons was issued on
28 April 2015. It was only sent to the sheriff on 15 May and served on 19 May after
the expiry of the three-year prescriptive period. This delay was also unexplained.

[18] The court below granted Mr Masina costs of the application for condonation on
an attorney and client scale, even though such a request was never made by Mr
Masina. The court did not give reasons for the punitive cost order it made. Mr Masina
sought an indulgence from the court and should not have been awarded costs unless
the opposition for the condonation application was unreasonable.

[19] The following order made:

1 The application for leave to appeal is granted.
2 The appeal is upheld with costs.
3 The order of the high court is set aside and replaced by the following order:
‘The application is dismissed with costs.’

__________________
Judge K E Matojane
Acting Judge of Appeal

APPEARANCES:

For Appellant:

M S Phaswane
Instructed by:

The State Attorney, Pretoria
The State Attorney, Bloemfontein

For Respondent:

N C Hartman
Instructed by:

Voster & Brandt Attorneys, Pretoria

Hill McHardy & Herbst Attorneys, Bloemfontein