Khumalo v Swaziland Government (1744/2012) [2019] SZHC16 (22 February 2019);

Search Summary: 

Plaintiff issued a combined summons against the defendants for payment of E3500 000.00 being damaged in respect of an alleged unlawful arrest and detention – Defendants filed an exception to the claim and pleaded that the claim has prescribed in terms of section 2 (1) (c) of The Limitation of Legal Proceedings Against the Government Act, 1972.

 

 

                                                                          

 

 

IN THE HIGH COURT OF ESWATINI

                                                   JUDGMENT

                                                                                                                            

Case No. 1744/2012

 

In the matter between:

 

Somnotfo Khumalo                                                                   Plaintiff                                                                                                                                       

And

 

Swaziland Government                                                            1st Defendant

Attorney General                                                                      2nd Defendant

                                                                                                         

Neutral citation:  Somnotfo Khumalo vs Swaziland Government and Attorney General (1744/2012) [2019] SZHC16 (….February 2019)

 

Coram                  : T. L. Dlamini J

For Plaintiff         : Mr T. Mamba

For Defendant     : Mr S. Hlawe     

Heard         :         13 November 2017

         

 

Summary:

                       Plaintiff issued a combined summons against the defendants for payment of E3500 000.00 being damaged in respect of an alleged unlawful arrest and detention – Defendants filed an exception to the claim and pleaded that the claim has prescribed in terms of section 2 (1) (c) of The Limitation of Legal Proceedings Against the Government Act, 1972.

Held:              That an action in respect of an alleged unlawful arrest arises as soon as the arrest has been made.  Further held that an action for an alleged unlawful detention arises immediately after the claimant is discharged from custody or released on bail.

 

RULING ON EXCEPTION

 

[1]   The plaintiff is Somnotfo Khumalo, an adult male of Ezulwini in the Hhohho Region.  On the 15 October 2012 he issued a combined summons against the defendants.  According to the particulars of claim, on the 1st March 2005 the plaintiff was unlawfully arrested, and without a warrant, by Eswatini police officers Clement Dlamini, Mfanasibili Dlamini and another Dlamini constable whilst he was at Haartebeeskop area in the Mphumalanga Province, Republic of South Africa.

[2]   Subsequent to the arrest, the plaintiff states that he was smuggled into the Kingdom of Eswatini through the Ngwenya Boarder Gate and was detained at the Mbabane Police Station, Malkerns Juvenile Prison and the Matsapha Maximum Prison.  He states that the policemen were acting within the course and scope of their employment as police officers of the Royal Eswatini Police Service.

 

[3]   The defendants filed an exception to the summons and pleaded that the plaintiff’s action for unlawful arrest has prescribed in terms of section 2 (1) (c) of the Limitation of Legal Proceedings Against the Government Act. The section provides that “no legal proceedings shall be instituted against the government in respect of any debt after the lapse of a period of twenty – four months as from the day on which the debt become due”.

 

[4]   The defendants states in the exception that the plaintiff instituted the proceedings on the 15 October 2012 when it ought to have done so on or before the 28 February 2007. For this reason, the defendants pleaded that the actin has prescribed in terms of the Limitation of Legal Proceedings Against the Government Act, 1972 (the Act).

 

[5]   To support the exception raised, the defendants submitted during arguments that in cases of unlawful arrest, the cause of action is completed on the day of the arrest and that any claim or debt based on the arrest becomes due on the date of arrest, and the claim is to be filed forthwith. As authority, the court was referred to the cases of Gabriel George v The Commissioner of Police and Attorney General, High Court Case No. 2453/2010 (unreported) and Sipho Ngwenya and another v The Commissioner of Police and Another (36/2006) [2006] SZHC 56 (17 March 2006).

 

[6]   The plaintiff, on the other hand, argued that the cause of action arose and was completed when the charges were withdrawn by the Crown on or about February 2012. The plaintiff further argued that section 2 (1) (c) of the Act should be read with subsection (2) (c) and not in isolation.

         

[7]   Subsection (2) (c) provides that a debt not “arising from contract shall not be regarded as due before the first day on which the claimant thereof has knowledge that the debt is due by the Government or the first day on which he could have acquired such knowledge by the exercise of reasonable care, whichever is the earlier day;”

 

[8]   The plaintiff’s argument is that he become aware of the delictual wrong committed by the Government against him after the withdrawal of the charges by the Crown in February 2012. Accordingly, he submitted that the letter of demand he served upon the Attorney General in March 2012 and the combined summons that were issued in October 2012 are both within the timelines stipulated in the Act.

 

[9]  To fortify his argument, the plaintiff referred this court to the case of Majobo Lawrence Mngometulu v Commissioner of Correctional Services (1379/2005) [2008 SZHC 2018 (28 November 2008) where Justice Mabuza J (as then she was) states the following in paragraph [6]:

 

“[6]      Mr Dlamini for the defendants has argued that prescription is reckoned from the date when the cause of action arose which is the 28/8/2002. Mr Simelane argues that it is reckoned from the date when the Plaintiff became aware of the wrong. I agree with Mr Simelane. The authorities support Mr Simelane’s submissions. See the following extract by Joubert:

                        ‘Although generally a cause of action in delict arises when the wrongful act is committed or wrongful omission occurs, it is clear that there are deviations from the rule. The real issue is not whether prescription of debt arising from the Lex Aquilia begins to run when there is a culpable act or omission without any damages, but when damages arise to complete the cause of action it is only after damages have been suffered that the cause of action becomes complete and time begins to run’.(my emphasis)

 

[10]   I wish to point out at the outset that subsection (2) (C) of section 2 of the Act is two-pronged. It is sets out two occurrences or conditions and stipulates that a debt shall be regarded as due when the first of the two conditions occur. For easy reference, the subsection is reproduced below:

 

 

                   “(2)      For the purpose of subsection (1) –

  1. … 
  2. a debt nor arising from contract shall not be regarded as due before the first day on which the claimant thereof has knowledge that the debt is due by the Government or the first day on which he could have acquired such knowledge by the exercise of reasonable care, whichever is  the earlier day;” (own emphasis).

 

[11]   The judgment in the matter of Majobo Lawrence Mngometulu (supra) to which this court was referred only considers one of the two conditions, viz., the first day on which the claimant has or becomes aware that the debt is due. It makes no reference to the other condition, viz., the first day on which the claimant “could have acquired such knowledge by the exercise of reasonable care,”.  Of significant importance is that subsection (2) (c) stipulates that the debt becomes due on the earlier day of the occurrence of one of the two conditions.

 

[12]   It is common cause that the plaintiff was arrested on the 1st March 2005.  During arguments, the plaintiff’s attorney submitted that his client (the plaintiff) was then released on bail after he had been formally charged.  Although I am not aware of the specific date on which the plaintiff was released on bail, that is the time, in my view, on which the plaintiff ought to have sought and received advise regarding the lawfulness or otherwise, of the arrest and his right to sue the government for the alleged unlawful arrest and detention.  He already had been detained at the Mbabane Police Station, Malkerns Juvenile Prison and Matsapha Maximum Prison.

 

[13]   Following his release on bail, a reasonable person in the circumstances of the plaintiff would have sought legal advise and prepared for his defence in the trial that was to follow.  Had the plaintiff acted like a reasonable person by seeking legal advise in preparation for the trial that was to follow, he would have acquired knowledge that his arrest and detention were unlawful, and that he is entitled to sue the government.  He would have acquired this knowledge before the charges were actually withdrawn.

 

[14]   On the basis of what I have stated in the above paragraph, it is my finding that subsection (2) (c) of the Act does not support the plaintiff’s case.  Had he exercised reasonable care, he could have acquired the knowledge that he is entitled to sue the government and claim damages for the alleged unlawful arrest and detention before the charges were withdrawn by the crown.  His knowledge of delictual debt in my view, ought to have been before the charges were withdrawn. 

 

[15]   The agreement that the plaintiff became aware or got to know that the delictual debt is due happened after the charges were withdrawn is accordingly rejected by this court.

 

[16]   I must now determine the meaning of section 2 (1) (c) of the Act.  It provides that “no legal proceedings shall be instituted against the Government in respect of any debt after the lapse of a period of twenty – four months as from the day on which the debt became due.”

 

[17]   In interpreting the above provision of section 2 (1) (c), the Supreme Court in the 906 Comfort Shabalala v Swaziland Government (2618/1995) [2002] SZC 23 (07 June 2002) cited with approval the case of HMBMP Properties (Pty) Ltd v King, 1981 (1) SA 906 where a similar provision of the South African Prescription Act was considered.  After considering various decided cases, it was held that a debt is “due” when it is immediately claimable by the creditor and, as its correlative, it is immediately payable by the debtor.  It can only be claimable immediately the creditor has the right to forthwith institute an action for its recovery.  In other words, the creditor must have a complete cause of action in respect of it.

 

[18]   I am persuaded by the finding of Mamba J in the matter of Gabriel George v The Commissioner of Police and Attorney General (Supra) who cited with approval Eksteen J in Thompson & Another v Minister of Police & Another, 1971 (1) SA 371 and held that in an action based on wrongful arrest, the delict is committed by the illegal arrest of the plaintiff without the due process of the law.  Improper motive or want of a reasonable cause have no legal relevance.  It is also irrelevant whether, any prosecution ensues subsequent to the arrest; and, even if it does, what the outcome of that prosecution is.  The injury lies in the arrest without legal justification, and the cause of action arises as soon as that illegal arrest has been made.

 

[19]   Mamba J further held that the cause of action in respect of the unlawful detention occurs on the date on which the plaintiff or claimant was released on bail.  I fully concur with Mamba J’s finding.

[20]   I am of the view and finding that in casu, legal proceedings in respect of the alleged wrongful arrest ought to have been instituted within two years after 01 March 2005 which is the date of arrest.

 

[21]   Legal proceedings in respect of the alleged unlawful detention ought to have been instituted within twenty – four months from the date of the plaintiff’s release on bail.  Unfortunately, the papers filed of record do not indicate the date on which the plaintiff was released on bail.  Even during arguments, that information was not furnished to the court save that the plaintiff was admitted to bail after he had been formally charged.

 

[22]   I am cognizant of the fact that the wording of the exception filed speaks only to the claim in respect of the alleged unlawful arrest.  It says nothing about the claim in respect of the detention yet the combined summons seeks damages for both the arrest and the detention.  My order in relation to the claim for the detention is therefore issued under the plaintiff’s prayer for further and/or alternative relief.

 

[23]   Lastly, it is trite and settled that in terms of section 2 (1) (c) of the Act, a person who has failed to institute legal proceedings against the government within twenty – four months from the day on which the debt became due becomes time barred to institute the proceedings.  Even the court has no power to grant the relief sought, whatever the merits of the case may be.

 

[24]   For the aforegoing, I order as follows:

          1.       The exception in respect of the claim for the alleged unlawful arrest is upheld and the claim thereon is dismissed.

          2.       With respect to the claim for the alleged unlawful detention, the plaintiff has a right in terms of section 4 of The Limitation of Legal Proceedings Against the Government Act, 1972, to seek leave of the court to institute proceedings if a period of twenty – four months has not lapsed after he was released on bail.

          3.       In exercise of the discretionary powers of this court, each party is ordered to bear its own costs.

 

 

 

__________________________

T.L. DLAMINI

JUDGE