;

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: l'l:S / NO (2) OF INTEREST TO OTHER J (3) REVISED

~ :W n,e. ?o 17 DATE

ARRIE WILLEM KRUGER

and

CASE NUMBER: 37681/2011

APPLICANT

THE DIRECTOR OF PUBLIC PROSECUTIONS

ARRIE WILLEM KRUGER

AND

IN RE:

THE DIRECTOR OF PUBLIC PROSECUTIONS

STRYDOMAJ:

JUDGMENT (APPLICATION FOR LEAVE TO APPEAL)

INTRODUCTORY REMARKS

RESPONDENT

PLAINTIFF

DEFENDANT

[1] This is an Application for leave to appeal, to the full bench of this Division of the

High Court, alternatively the Supreme Court of Appeal, against the whole of the

Judgment and Cost Order which I delivered under the above case number on 29

April 2016.1

1 See: Application for leave to appeal.

37681/ 2011/ AJ-JSS - 2 - JUDGMENT ·

[2) The matter that came before me, against which the Application for Leave to

Appeal is directed, was for adjudication of the Respondent's (Defendant in the

action) First Special Plea of prescription against the Applicant's (Plaintiff in the

action) claim for wrongful and malicious proceedings instigated against the

Plaintiff by the prosecutors' action in the course and scope of their employment

with the Defendant.

[3) I found in favour of the Respondent and dismissed the Applicant's claim with

cost.2

REQUIREMENTS FOR LEAVE TO APPEAL

[4] The legal principals governing an Application for Leave to Appeal can be

summarised as follows:

1. As a general rule, Leave to Appeal can only be granted if the Applicant has

a reasonable prospect of success on appea/.3

This means that a reasonable

probability should exist that another court may come to a different

conclusion from that arrived at by me.4

2. A mere possibility (in contradistinction to probability) that another Court will

come to a different conclusion is not sufficient to justify the grant of Leave to

Appeal.5

3. It is not the reasons against which the applications for leave stands, but

against the court order. Thus, if the order was correct, the reasons for the

judgment makes no difference at all.6

2 See: Judgment, page 20. 3 Comp. LA WSA Vol 3 - par 360; Van Heerden v Cronwright 1985 2 SA 342 (T); Botes v Nedbank Ltd 1983 3 SA

27 (A). 4 See: S v Skosana 1980 (4) SA 559 AD at 561F 5 See: S v Caesar 1977 (2) SA 348 (A) at 350.

37681/2011/AJ-JSS - 3 - JUDGMENT

4. The importance of a matter for a party is only one factor amongst others to

consider for granting Leave to Appeal. 7

5. Where a Court is of the view that its judgment is correct it should not grant

leave to appeal. a

6. Lastly, if there is reasonable prospect of success - the further test is - if

leave to appeal is granted would it lead to a just and reasonably prompt

resolution of the real issue between the parties. 9

GROUNDS FOR LEAVE TO APPEAL

[5] The Application for Leave to Appeal came before me on 26 September 2016,

which application was opposed by the Respondent. The Applicant raised three

grounds of appeal, and correctly in my view, abandoned the second ground of

appeal at the hearing.

[6] The first ground of Appeal is that I erred in finding that the only facts which the

Plaintiff had to have knowledge of, in order for him to be able to institute an action

for malicious proceedings against the Defendant, was the fact that all charges

against him were withdrawn on 13 October 2009.10

The third ground is that I erred in finding that the response of Mr Erasmus to a

question I directed to him, being whether he could dispute that the defendant's

attorney, Mr Olwage, shortly after he received a copy of the SAPS docket

pertaining to the prosecution of the Plaintiff, made the same available to him;

6 Comp. Lipschitz NO v Saambou-Nasionale Bouvereniging 1979 I SA 527 (T). 7 Comp. Janit v Van den Heever NO [2000] 4 All SA 520 (W). 8 Comp. S v Kgafela 2003 (5) SA 339 (SCA) at 340I-341C; Farlam et al: "Superior Court Practice" Al-50A. 9 See: Zweni v Minister of Law and order 1993 (I) SA 523 (A) at 531. 10 See: Notice of Appeal, par 1.1 , page 2. The said Notice refers to 2016, which I presume is a typing error since my

Judgment refers to 13 October 2009.

37681/2011/AJ-JSS -4- JUDGMENT

amounts to an admission that the Defendant did not wilfully prevent the Plaintiff

from coming to know of the existence of the debt as envisaged by Section 12(2) of

the Prescription Act, 1969 (Act no 68 of 1969). Ostensibly the argument is that Mr

Olwage was not the Defendant but the Director of Public Prosecutions. There

could have been merit in this argument if this was the Plaintiffs case on the

pleadings and/or the Plaintiff presented evidence in this regard. However on the

Plaintiffs pleadings the Minister of Police (which was not before me) allegedly

prevented the Plaintiff from coming to knowledge of the identity of the Defendant.

The argument is, in any event, insufficient in itself to sustain a ground for appeal.

The Plaintiff did not present any further evidence, other than that of Mr Kruger and

Mr Erasmus, in support of the Plaintiff's claim in this regard. I have dealt with this

evidence in my judgment. Neither of these witnesses were able to present any

evidence that the Defendant prevented the Plaintiff from coming to know the

identity of the Defendant. In fact, as I have indicated in my judgment, the Plaintiff

had legal representation prior to the charges having been withdrawn against him

on 13 October 2009 and accordingly adequate knowledge, to issue summons

against the Minister of Police without the docket.11

FIRST GROUND OF APPEAL

[7] It follows that the only ground to consider is the first ground of appeal. I have

dealt comprehensively with this issue in my judgment with reference to the

relevant authority I relied upon for my judgment. I am, and is still of view, that in

accordance with the said authority, 12 prescription began to run against the

11 I note that my Judgment incorrectly refers to the Minister of Defence, in paragraph 30.2, while it should have read the Minister of Police. I do not deem it necessary to correct this because it is clearly a typing error and in the context clear reference to the Minister of Police was made.

12 Compare paragraphs [6] to [8] ofmy judgment.

37681/2011/ AJ-JSS - 5 - JUDGMENT

Plaintiff's claim form the time he had the minimum knowledge of the facts

necessary to institute action against the Defendant. In paragraph [26] of my

judgement I specifically rejected the submission by Mr Uys that the Plaintiff (or his

legal team) only acquired knowledge of the facts from which the Plaintiffs claim

arouse during the end of August 2012, after a copy of the SAPS docket pertaining

to the arrest and detention of the Plaintiff, was received from the Defendant's

attorneys of record; and that Prescription only began to run against the Plaintiff

from the latter date.

[8] Counsel for the Applicant submitted that the Constitutional Court matter of Links v

MEG of Health, Northern Cape, 13 substantially altered the legal position in respect

of prescription. I am obviously bound by that matter in the event that it did indeed

alter the legal position, as submitted by Mr Uys. I accordingly reserved judgment

in order to study the Constitutional Court matter and the relevance thereof to the

matter I delivered judgment in. Mr Uys was of view that in the event I find that the

Links matter do not influence my judgment, then the Plaintiffs Application for

Leave to Appeal should not succeed.

[9] In the Links matter the appeal was against an order of a Judge from the Northern

Cape Provincial Division of the High Court,14

"which related to the applicant's claim for damages against

the respondent. The applicant's claim was held by the High

Court to have prescribed. For that reason, the High Court

dismissed the applicant's claim for condonation of his failure

to comply with the requirements of section 3 of the Institution

13 Links v MEC of Health, Northern Cape [2016] ZACC 10 14 Ibid, Par [l].

37681/ 2011/ AJ-JSS -6- JUDGMENT

of Legal Proceedings Against certain Organs of State Act

(Legal Proceedings Act).

(1 O] Although the High Court in the Links matter primarily dealt with condonation

application, the relevance of the matter lies in the fact that the said Court was

required to consider the prospects of success of the applicant on trial when it

determined the application for condonation. Hence the consideration of the plea

of prescription against his claim, by the aforesaid Court.

(11] I am of view that the Links matter is distinguishable, in at least the following

respects, from the matter that came before me:

1. In the Links matter the Plaintiff's claim was based on professional

negligence by the medical personal that treated him for an injury to the

thumb of left hand. The matter that served before me dealt with unlawful

and malicious prosecution.

2. In the Links matter the minimum information which the applicant required in

order to institute an action was supplied and dependant on the evidence of

an expert witness. The Honourable Constitutional Court formulated this as

follows:

[42} However, in cases of this type, involving professional

negligence, the party relying on prescription must at

least show that the plaintiff was in possession of

sufficient facts to cause them on reasonable grounds

to think that the injuries were due to the fault of the

medical staff. Until there are reasonable grounds for

suspecting fault so as to cause the plaintiff to seek

37681/2011/ AJ-JSS -7- JUDGMENT

further advice, the claimant cannot be said to have

knowledge of the facts from which the debt arises. 15

[43} It is now appropriate to return to section 12(3) of the

Prescription Act. That provision says that a debt shall

not be deemed to be due and, therefor, prescription

shall not commence to run "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.16

[45} In a claim for delictual liability based on the Aquinian

action, negligence and causation are essential

element of the cause of action. Negligence and, as

this Court has held, causation have both factual and

legal elements. Until the applicant hand knowledge of

the facts that would have led him to think that the

possibly there had been negligence and that this had

caused his disability, he lacked knowledge of the

necessary fact contemplated in section 12(3). 17

[47] .... Without advice from a professional or expert in the

medical profession, the applicant could not have

known what had caused his condition. '118

In the matter that came before me, no expert witnesses was required before

the plaintiff had the required minimum facts in order to institute action. In fact,

the Applicant was at the time of withdrawal of the criminal charges against

him, and at all relevant times thereafter, represented by a legal team.

15 Ibid, Par. [42]. 16 Ibid, Par. [43]. 17 Ibid, Par. [45]. 18 Ibid, Par. [47]

' . '

37p81/ 2011/ AJ-JSS -8- JUDGMENT

[12] In my view, the Constitutional Court in the Links matter did not alter the legal

principals pertaining to prescription of a delictual claim. The Honourable Court

merely indicated that in the circumstances, as was present in the Links matter,

expert advice may be an essential element of the minimum facts that needs to be

present before a party will have sufficient evidence in order to institute action and

accordingly for prescription to commence.

[13] Accordingly, I am of view there are no prospects of success that another court will

come to a different conclusion than the one I had come to.

ORDER

In view of the above facts and considerations I make the following order:

1. The Application for Leave to Appeal is dismissed;

2. The Applicant is ordered to pay the costs of the Respondent.

Appearances:

Counsel for the Applicant:

Instructed by:

Counsel for the respondents:

Instructed by:

J.S. STRYDOM ACTING JUDGE OF THE HIGH COURT

Adv. Pl Uys.

Gildenhuys Malatji.

Adv. LA Pretorius.

The State Attorneys: Pretoria.