IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN) CASE NO, In the matter between: ‘SINETHEMBA MTOKONYA Applicant tiffin the court of first instance) And MINISTER OF POLICE Respondent {Defendant in the court of first instance) FOUNDING AFFIDAVIT |, the undersigned, ‘SINETHEMBA MTOKONYA, sm Sbdo hereby make oath and state: THE PARTIES 1.11 am an adult male, unemployed, literate and residing at Mxesibe Location, All Saints Administrative Area, Ngcobo, Province of Eastern Cape. | have been residing in Mxesibe Location, which is a rural area, since birth and my entire life has a rural background. 1.2 _ lam the Applicant in these proceedings. | wish to inform the Honourable Court that ! was a plaintiff in a case I brought against the Respondent in the Mthatha High Court under ease no, 2087/14. 212a 22 3a 31 ‘The Respondent is the MINISTER OF POLICE for the Government of the Republic of Scuth Africa whose address for purpose of service is care of the Office of State Attorney which is situate at 94 Sisson Street, Broadcast House, Fortgale, Mthatha, Province of Eastern Cape. The Respunden: was a defendant in a case | brought in the mthatha High Court under cate no. 1057/14 by virtue of the fact that he is offically in charge of all the policemen serving under the South African Police Service established in terms of the provisions of the South African Police Service Act (No. 68 of 1985). He is officially vicariously liable for all the wrongful acts committed by members of the South Aftican Police Service ‘when acting in the course and scope of their employment. The facts deposed to herein are, unless the context otherwise indicates, within my personal knowledge and are, to the best of my knowledge and. belief, true and correct. om3.2 It will be observed that some of the allegations 1 make hereunder constitute legal argument. | do so on the advice received from my legal representatives who have been assisting me in the preparation of this affidavit. They indicated to me that by its very nature the application faises legal issues which must be fully ventlated to enable this Honourable Court to understand the reliefs | am seeking against the Respondent. RELIEF SOUGHT This is an application for leave to appeal to this Honourable Court against the following judgement and orders: 4.1 Ajudgement delivered by Mthatha High Court (“court of first instance”) ‘on 23 September 2015 dismissing an action | had brought against the Respondent for damages arising out of wrongful arrest and detention by a certain member of the South African Police Service; sirsce Sam ob4.2 An order granted by the court of first instance on 3 March 2016 dismissing the application for leave to appeal to the Full Court of the court of first instance against the judgement delivered by the court of first instance on 23 September 2015; and 4.3 An order granted by the Supreme Court of Appeal on 24 May 2016 dismissing my application for leave to appeal against the judgement delivered by the court of first instance on 23 September 2015 and the frcor granted by the same court on 02 March 2016 dismissing my application for leave to appeal. ‘APPLICANT'S CAUSE OF ACTION IN THE COURT OF FIRST INSTANCE ‘am advised by my legal representatives that in order to put the matter in a proper perspective, its necessary to first give the following background: Sm Sipage5.1 On 15 April 2014 | instituted an action in the court of first instance: ‘against the Respondent under case no, 1057/2018 for payment of damages in the total sum of R350.000-00 hased on’ “12.1 Unlawful arrest 100 000-00 42.2 Unlawful detention 13000000 123 General damages arising out of pain ‘ond suffering, emotional shock R20000-00 124 Defamation of character and contumelia R100 000-00 TOTAL R350 000-00" 5.2. The claim was founded on wrongful arrest by members of the South African Police Service and detention for a period of five days in police cells. | never appeared in any criminal court notwithstanding the fact that a period of 48 hours expired w! Slee53 54 55 HT] ‘A further ground for the action | had brought against the Respondent in the court of first instance was that the members of the South African Police Service did not have a reasonable belief that | had committed an offence in Schedule 1 of the Criminal Procedure Act (No. 51 of 1977). Moreover, the arrest was without a warrant, ‘The action was proceeded by a written notice which had been issued by: ‘my attorney in terms of the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act (No. 40 of 2002). A copy of the written notice is annexed hereto, marked "SM 2") | am advised by my legal representatives that itis not necessary to annex the entire summons to my affidavit but the same will be made available to this Honourable Court should need be,RESPONDENT'S DEFENCE IN THE COURT OF FIRST INSTANCE 64 ‘The Respondent pleaded a defence of prescription in terms of the Provisions of the Prescription Act (No. 68 of 1969) in the following respects "na 42 13 14 15 The plaintiffs w major person. The plaintiff was arrested on the 27" September 2010. ‘Summons was issued on the 25" March 2014. The aforesaid summons were served to the offices of tae Defendant on the 27" March 2014, The plaintiff knew that he was arrested on the 27" September 2010 and he further knew who the debtor was. n 316 On the basis stated above a period of three (3) years from the 27" September to 27” March 2014 has lapsed, 4.7 On the basic set out above this claim should be dismissed with costs.” 6.2 _ | am again advised by my legal representatives that it is not necessary to annex to my affidavit the Respondent's Plea but the same will be made available to the Honourable Court should need be. STATED CASE IN THE COURT OF FIRST INSTANCE 7.1. Prior to the hearing of the matter before the court of first instance, the parties formulated a stated case in terms of the provisions of sub-Rule (2) of Rule 33 of the Uniform Rules of Court. Succinetly, the following 9100 sm SA.a1 were facts agreed upon by the parties for the Honourable Court to adjudicate upon: “AGREED FACTS GIVING RISE TO THE CLAIM 3 " The plointiff 3.1 wos arrested and thereafter detained by members of the South African Police Services at Engcobo Police Cells on the 27" September 2010; 3.2 at the beginning of July 2013 met with Mr Nkululeko Babe, ‘an attorney of this Court and the Plaintiff's neighbour, who during the course of their interaction enquired about the ‘outcome of the criminal case in respect of which the Plaintiff hhad been arrested by the Police on the 27 September 2010 ‘and who, on being informed that the plaintiff was never token to Court following his arrest but was released by the ppolice on the basis that when they need him they will call on hhim again to attend and present himself at Cour. Mr Babe Sminformed him at the beginning of July 2013 that he, the plaintiff: 3.2.1 was not supposed to be detained in excess of a period of 48 hours without him having bezn made to ‘appear before a Court of law; 3.2.2 was wrongfully and unlawfully: 3.2.2.4 misled by the Police into believing that they will at some point call upon him to attend Court simply to conceal the wrongfulness of their conduct, but never called him; and 3.2.22 arrested and detained by the Police in circumstances where they had no reason to believe that he had committed an offence; 3.2.3 has cause of action against the Minister of Police for unlawful arrest and detention; sm 111? 2¢3.3 issued a statutory notice pursuant to the provisions of section 3 of the Institution of Legal Proceedings Against Certain Organs of Sate Act, 2002 (Act No. 40 of 2002) in July 2013; ond 2.4 issued and thereafter served summons against the Defendant in April 2014." 7.2 _Itwas further agreed by the parties in the stated case that: “THE PARTIES’ CONTENTIONS The defendant contends that the plaintiffs claim has prescribed ‘and the plaintiff disputes this issue. 6 The plaintiff contends that before his meeting with Mr \Nkululeko Babe at the beginning of July 2013, he did not know that: sm Bhp61 the conduct of the Police in not bringing him before a Court of law within 48 hours following his arrest on the 27 September 2010 was wrongful and actionable; 6.2 at the time of his arrest the Police did not have information upon which they could have formed a reasonable belief that he had committed the offence for Which he was arrested and thereafter detained; and 63 hecould sue the Police.” 7.3 annex hercto, marked “SM 2, a copy of the stated case formulated by the parties in terms of the provisions of sub-Rule (1) of Rule 33 of the Uniform Rules of Court. sm aa PaeJUDGEMENT OF THE COURT OF FIRST INSTANCE Claasen vs. ‘8.1 Relying on the decisions of the Supreme Court of Appeal Bester’ |"Claasen"), Yellow Star Properties vs MEC, Department of Planning and Local Government” ("Yellow Star Properties”), Van Staden vs Fourie? ("Van Staden") and Truter vs Dysef* (“Truter”), the court of first instance upheld the Respondent's plea of prescription and dismissed my action. In paragraph (14) of the judgement delivered by the court of first instance on 23 September 2025, it stated: *{14) In this case the plaintiff did acquire knowledge that the defendant was the arrestor as well as that the arrest and detention were not justified; but he id nothing about * 2032 (2) sa aos (sca) * 2008 (3) ALL SA 475 (SCA, * 1989 (3) SA 200 (4). 2006 (a 5A 168 (SCA). talpege sm st.82 351 that. The legal advice that he later on obtained from Mr Babe that he had right to institute a claim for damages ‘against the defendant, was a legal conclusion made in July 2014 based in material facts already in existence in ‘September 2010. In the circumstances it was o negligent, ather thon innocent inaction on the part of the plaintiff to allow prescription of his claim to run. Therefore, the cgnswer to the question raised is that the knowledge of o (My legal remedy does not interrupt prescription emphasis) | annex hereto, marked “SM 3", a copy of a judgement delivered by the court of first instance on 23 September 2015. Reference to July 2014 was, with respect, incorrect because the stated case mentioned July 2013. omAPPLICATIONS FOR LEAVE TO APPEAL 94 92 93 ‘Thereafter, | applied to the Court of first instance for leave to appeal to the Full Court against its judgement delivered on 23 September 2015. On 3 March 2016 the application for leave to appeal was dismissed “... for reasons already stated in the main judgement.” | annex hereto, marked “SM 4", a copy of an order granted by the court Of first instance on 3 March 2016, With the advice of my legal representatives, | further sought leave from the Supreme Court of Appeal to appeal against the judgement of the court of first instance and the order refusing leave to appeal. On 24 May Sm2016 the Supreme Court of Aapeal dismissed the application with costs ‘x on the grounds that there is no reasonable prospect of success in an ‘appeal and there is no other compelling reason why an appeal should be heard: 9.4 | annex hereto, marked “SM 5", a copy of an order granted by the ‘Supreme Court of Appeal on 24 May 2016. FLAWS IN THE JUDGEMENT OF THE COURT OF FIRST INSTANCE AND ORDER (OF THE SUPREME COURT OF APPEAL 10. | am advised by my legal representatives that the judgement of the court of First instance and the order by the Supreme Court of Appeal disinissing the sm wipesapplication for leave to appeal are, with respect, fundamentally flewed for the following reasons: t04 102 In adjudicating on the matter, the court of first instance was confined to the four corners of the stated case (“SM 2”) which had been prepared by ‘the parties in terms of sub-Rule (1) of Rule 33 of the Uniform Rules of Court. There was no evidence whatsoever for the court of first instance to conclude that | was negligent and not innocent in not bringing the action against the Respondent within the prescribed period of three ‘years as provided in the Prescription Act (No. 68 of 1969). Instead, the only evidence, according to the stated case, was that throughout | had not been aware that the police were not supposed to have detained me in excess of a perio of 48 hours without appearing in 2 court of law. There was also ungsinsaid evidence that when I was released from police cells the police told me that at come stage they would call upon me to attend the court (see annexure “SM 2"). Sam 3.103 104 105 It cannot be concluded, with respect, that | was negligent in failing to institute an action against the Respondent when in fact | was ignorant that my detention by the police in excess of 48 hours without being brought before a court of law was wrongful. Therefore, there were no compelling grounds for the court of first instance to come to Conclusion that | was negligent in failing to institute the action against tthe Respondent within a period of three years as peremptorlly provided by the Prescription Act. In paragraph (7) of its judgement, the court of first instance correctly referred to the decision of the Supreme Court of Appeal in MaCleod vs: Kweyiya’ ("MaCleod") However, the court failed to apply this decision and that of MEC for Education, KwaZulu-Natal vs Shange® ("Shange”) which was relied upon in MaCleod. In paragraph (13) of the decision in MaCleod, the Supreme Court of ‘Appeal hele: $2013 (6) 1 (cA), 2012 (5) $313 (SCA) gm 3B] pone“{23) Its the negligent, and not an innocent inaction that s 12(3) of the Prescription Act seeks to prevent and courts must ‘consider what is reasonable with reference to the particular circumstances in which the plaintiff found himself or herself. In MEC for Education, KwaZulu-Natal v Shange 2012 (5) SA 313 (SCA) para 11 this court had to consider whether @ 15 year old learner who had been hit with a belt on the side of his eye by his teacher acted reasonably in waiting more than {ive years to institute action against the teacher's employer. As in the present matter, the plaintiff became aware of the possibility of a claim by chance. He had initially accepted the teacher's explanation that it was an accident. A family friend noticed that he was wearing an eye patch and suggested that hhe should approach the Public Protector. An advocate in that office advised him of the possibilty of a claim eaainst the teacher. Snyders JA held that the delay was innocent, not negligent. She stated: sm ga.106 ale “He was a rural learner of whom it could not be expected to reasonably have had the knowledge that not only the teacher wos his debtor, but more importonty, that the Appellant was a joint debtor. Only when he was informed ofthis foc did he know the identity of the appellant os his debtor forthe purposes of the provisions of: 12(3) ofthe Prescription Act’.” (My emphasis) In MaCleod and Shange the plaintiff instituted an action against the defendant after the expiry of a period of three years because the delay was as a result of legal advice the Plaintiff received late. The delay was. condoned because nothing the Plaintiff could have done prior to. receiving the legal advice. Similarly, it was the case in this matter because | acted on the advice of my attorney, Mr Babe, who issued a letter of demand in term of the provi i of section 3 of the Institution Of Legal Proceedings Against Certain Organs of State Act (No. 40 of 2n02)10.7 Therefore, the court of first instance, with respect, misdirected itself in feiling to apply the decisions of the Supreme Court of Appeal in MaCleod ‘and Shange. Like MaCleod’s and Shange’s cases the court of first instance should have found that | am an uneducated and illiterate Person resident in rural area and could not have been expected to have knowledge about the legal implications of my arrest and detention by police. 10.8 In coming to the conclusion that knowledge of a legal remedy does not Interrupt prescription, the court of first instance relied on the decisions. Of the Supreme Court of Appeal in Claasen, Yellow Star Properties, Van ‘Staden and Truter. 1 am advised by my representatives that these decisions are i iguishable from the present case because they relate to failure by @ plaintiff to institute an action timeously in circumstances when he/she is fully aware about the cause of action against the defendant. | am further advised by my representatives that thete decisions were, with respect, Incorrect because they seek to impute knowledge of legal conclusions or n> 28 Sm seb‘consequences by a creditor even if he does not have such knowledge. | deal with this issue more fully hereunder. 110.10 | am further advised by counsel that the approach adopted by the court of first instance, with respect, constitutes a rigid application of the: Presciption Act which has the consequences of injustice to me. am also- advised by my counsel that this rigid application ofthe provisions of the Presciption Act by the court of first instance is, with respect, ‘incongruent with the provisions of section 39(2) of the Constitution. AS will be stated more fully hereunder, this sub-section provides: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects ofthe Bill of Rights.” 2 abe wCONSTITUTIONAL IssUES 4, | am advised by my legal representatives that the following constit Issues are pertinent to this application, vie; 11.1. The interpretation given by the Supreme Court of Appeal in its decisions in Claasen, Yellow Star Properties, Van Staden, Truter and Minister of Finance and others vs Gore’ ("Gore") to the provisions of section 12(3) of the Prescription Act (No. 68 of 1969) is incongruent with the Peremptory provisions of section 39(2) of the Constitution of the Republic of South Africa Act (No. 108 of 1996); " 2007 (2) $A.121 (SCA). 312 113 4 11s ase ‘The written notice issued by my attorney to the Respondert (annexure “SM 2") interrupted prescription in terms of the provisions of sub- section (1) of Section 15 of the Prescription Act (No. 68 of 1969) if one takes into account the peremptory provisions of section 39(2) of the Constitution; The absence of «nowledge ofa legal remedy should arrest the running of a prescription. A prescription cannot run against @ person who Is innocent, ignorant and uninformed about the legal conclusions or ‘consequences of facts in possession of; Prescription should not run against a creditor who is not negligent for failure to exercise his or her own legal rights; and ‘The decision of the Supreme Court of Appeal in Claasen, Yellow Star Properties, Van Staden, Truter and Gore were, with respect, incorrectly. decided insofar as they impute knowledge of legal conclusions or ‘consequences on the part of a creditor irrespective of whether such ‘ uminnocent creditor is ignorant or uninformed about such legal conclusions or consequences. 11.6 Nowhere in the Prescription Act (No. 68 of 1969) is it provided (either expressly or by necessary implication) that a creditor is deemed to have knowledge abcut legal conclusions or consequences of a wrongful conduct. To impute such 2 knowledge on an innocent, ignorant and Uninformed creditor amounts to reading into the Prescription Act and an interpretation which is not provided therein. ‘STATUTORY PROVISIONS: 12. ‘am advised by my legal representatives that the following statutory Provisions are relevant for the determination of this application by the Honourable Court, vie: 3 Pou ®a 22 23 Everyone has inherent dignity and the right to have their dignity respected and protected.” A wrongful arrest and detention constitutes @ serious violation of this constitutional right which is enshrined in the Constitution. tt is on this basis that | have approached this Honourable Court asa final arbiter to grant me leave so that the matter is remitting to the court of first instances where | will again enforce my constitutional rights against the Respondent Section 34 of the Constitution of the Republic of South Africa Act (No. 1108 of 1996) provides a right to a person to have any dispute that can be: resolved by the application of law to be decided in a fair public hearing. before a court or, where appropriate, another independent and impartial tribunal or forum. Itis also provided in the Constitution that when interpreting the Bill of Rights a court, tribal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and * See section 10 ofthe Consttuton. »freedom; must consider international law and may also consider foreign law (section 39 (1)(a), {b) and (c) of the Constitution). 12.4 Sub-section (2) of section 39 of the Constitution provides: “(2) When interpreting any legislation, and when developing the ‘common law or customary law, every court, tribunal or forum ‘must promote the spirit, purport and objects of the Bill of Rights.” 12.5 Recently this Honourable Court in Makate vs Vodacom (Pty) Ltd? (“Makate’) stated the following about the interpretation of legislation: “Constitutional approach 1871 Since the coming into force of the Constitution in February 1997, every court that interprets legislation is bound to read a legislative * 2016 (6) BCLR 709 (Cc). sm wl Poe 3.8.provision through the prism of the Constitution. in Fraser, Van der Westhuizen J explained the role of section 39/2) in these terms: “When interpreting legislation, a court must promote the spirit, Purport and objects of the Bill of Rights in terms of section 39(2) of the Constitution. This Court has made clear that section 39(2) fashions a mandatory constitutional canon of statutory interpretation.” 188] Its apparent from Fraser that section 39(2) introduced to our law- @ new rule in terms of which statutes must be construed, t aso ‘appears from the some statement that this new aid of Interpretation is mandatory. This means that cours must at all times bear in mind the provisions of section 39(2) when Interpreting legislation, _If the provision under construction Jmplcates or affects rights in the Bill of Rights, then the obligation in section 39(2) is activated, The court is duty-bound to promote the purport, spirit ond objects ofthe Bll of Rights inthe process of interpreting the provision in question, om189] The objects of the Bill of Rights ore promoted by, where the [90] BO1Poge vision is capable of more than one meoning, adopting a ‘meaning that dees not limit o right in the Bill of Rights. If the provision is not only capable of a construction that avoids limiting lahts in the Billof Rights but also bears @ meoning that promotes those rights, the courts obliged to prefer the latter meanina, For, 195 this Court observed in Fraser “Section 39(2) requires more from a court than to avoid on interpretation that conflicts with the Bill of Rights. It demands the promotion of the spirit, purport and objects of the Bill of Rights.” It cannot be disputed that section 10(1) recd with sections 11 and 12 of the Prescription Act linits the rights guaranteed by section 34 of the Constitution. Therefore, in construing those provisions, the High Court was obliged to follow section 39(2), irrespective of Whether the parties had asked for it or not. This is so because the Sem[si aor ‘operation of section 39(2) does not depend on the wishes of litigants. The Constitution in plain terms mandates courts to invoke the section when discharging their judicial function of interpreting legislation. That duty is triggered as soon as the provision under interpretation offects the rights in the Bill of Rights. ‘in Road Accident Fund this Court, having expressed reservations on whether an obligation may constitute a debt contemplated in the Prescription Act, stated that the failure to meet a prescription deadline set in terms of the Act, denies a litigant access to a court. What this means is that if the Act finds application in o porticular case, it must be construed in accordance with section 39(2). On this ‘approach an interpretation of debt which must be preferred, is the fone that is least intrusive on the right of access to courts. In SATAWU, this Court affirmed the principle n these terms: “Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations onto them, and when legislature provisions limits or intrudes upon’ gm‘those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of ‘bearing that meaning.”*"” (My emphasis) 126 The provisions of section 12(3) of the Prescription Act are capable of having the follewing two interpretations which previously have drawn the attention of our courts, including the Supreme Court of Appeal: 126.1 A creditor's cause of action becomes complete once he or she acquires minimum facts, nt necessarily every piece of evidence relating to such 9 cause of action. It is not necessary that @ creditor should have 2 complete set of facts which would tenable him or her to draw legal conclusions or consequences. ‘An expert opinion is irrelevant in determining the date on which ° See Fraser vs ABSA Bank Limited 2007 (3) SA 484 (CC, Investigating Directorate: Serious. Economic Offences and others vs Hyundai Motor Distributors (Pty) Ltd and others Ine: Hyundat Motor Distributors (Pty) Ltd and others vs Smit N.O and others 2001 (2) SA SOS (ce) at para 21, recenty Makate vs Vodscom (Pty) Ltd (supra) paras (87) and (88) and Links vs MEC, Department of Health, Northern Cape Province 2016 (5) BCLR 656 (CC) at age 26, Sm ale8 See Claasen vs Bester (supra, Yellow Star vs MIC, Department of Government (supra, Van Staden ve Fourle(supre), Truter va Deyse (supra) 12.6.2 12.63 prescription begins to run. Therefore, prescription begins to run once a creditor is in possession of minimum facts to constitute @ cause of action. This is an interpretation which has been adopted by our courts, including the Supreme Court of Appeal"; and Knowledge of legal conclusions or consequences are relevant for determining the date from which prescription begins to run. A strict adherence to minimum facts alone could frustrate an innocent creditor who has no knowledge about the legal conclusions oF consequences of the wrongful conduct of a debtor. ‘Therefore, prescription should begin to run from the date on hich the creditor acquires knowledge of legal cenclusions or consequences of the wrongful conduct of @ debtor. This fanning and Local nd Minister (of Finance vs Gore (spre) sae127 128 Interpretation has been rejected by our courts, including the Supreme Court of Appeal, as stated more fully hereunder. | am advised by my legal representatives that it is the latter interpretation (i.e knowledge of legal conclusions or consequences) Which should be adopted by our courts, more especially that the Constitution provides in peremptory terms that “When interpreting ony legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights” (section 39(2) of the Constitution). Such an interpretation is advocated by this court in the decision of Makate (see paragraph 12.5 above). | am further advised by counsel that the interpretation of the provisions of section 12(3) of the Prescription Act given by judgements of the Supreme Court of Appeal is incongruent with the judgements of this Honourable Court, particularly the decision in Makate. Section 12(3) is open to two conflicting interpretations. Therefore, itis important to again cite paragraph (88) of the decision of this Honourable Court in ‘Makate, which reads:"{89) The objects of the Bill of Rights are promoted by, where the provision is capable of more than one meaning, adopting ‘meaning that does not limit a right in the Bill of Rights. If the provision is not only capable of @ construction that avoids limiting rights in the Bill of Rights but also bears a meaning that promotes those rights, the court is obliged to prefer the latter meaning. For, as this Court observed in Fraser: “Section 39(2) requires more from a court than to avoid {an interpretation that conflicts with the Bill of Rights. It demands the promotion of the spirit, purport and objects of the Bill of Rights."” 129 Section 11 of the Prescription Act provides various periods of Prescription of debts. in sub-section (d) of section 11 it is generally provided that any other debt prescribes after the expiry of a period of three years save where an Act of Parliament provides otherwise. It was ‘common cause between the parties in the court of first instance that my claim against the Respondent prescribed after the expiry of a period of three years. 12.10 Section 12 of the Prescription Act provides: ssirage Sun“12. When prescription begins to run (1) Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due. 2) (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.” 12.11 It will be observed that section 12(3) simply refers to “.. the facts from which the debt arises”. Profoundly, the sub-section does not make Provisions for a creditor who has no knowledge about the legal Conclusions or consequences flowing from “..the facts from which the Soydebt arises.” It is this lacuna which | respectfully ask the Honourable Court to deal with because the court of first instance dismissed my: action against the Respondent when there was agreed evidence (in the form of a stated case) that | have no knowledge that my detention by ‘the police in excess of 48 hours without appearing before @ court was wrongful 12.12 In Links vs MEC, Department of Health, Northern Cape Province’? (“Links”) this court held about the provisions of sub-section (3) of section 12 of the Prescription Act: “[26] The provisions of section 12 seek to strike fair balance ‘between, 01 the one hand, the need for a cut-off point beyond which o person who has a claim to pursue against another may not do so after the lapse of a certain period of time if he or she has failed to act diligently and on the other the need to ensure fairness in those cases in which o rigid application of prescription legislation would result in injustice. As already stated, in interpreting section 12(3) the injunction in section * 2016 (5) BCLRS6 (C). 71 Sm39(2) of the Constitution must be borne in mind. In this matter, ‘the focus is on the right entrenched in section 34 of the Constitution.“ (My emphasis) 12.43 | reiterate that there was no evidence before the court of first instance that | failed to act diligently as required by the judgement. My inaction ‘was purely based on ignorance of the wrongful conduct of the police. 12.14 Sub-section (1) of section 15 of the Prescription Act provides that: “{1) The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.” 12.15 The following are further relevant provisions of section 15 of the Prescription Act: 3 see also para (22) ofthe Judge Sm aap39] “{2), Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final, judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside. 13) if the running of prescription is interrupted os contemplated in subsection (1) and the debtor ‘acknowledges liability, and the creditor does not prosecute his claim to final judgment, prescription shall commence to run afresh from the day on which the debtor. ‘acknowledges liability or, if at the time when the debtor ‘acknowledges liability or at any time thereafter the Parties postpone the due date of the debt, from the day upon which the debt again becomes due. (4) if the running of prescription is interrupted os contemplated in subsection (1) and the creditor Smsuccessfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable. (5) If any person is joined as a defendant on his own ‘application, the process whereby the creditor claims ‘poyment of the debt shall be deemed to have been served ‘on such person on the date of such joinder. (6) For the purposes of this section, “process” includes @ 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,” (My emphasis) 12.16 Section 3 of the institution of Legal Proceedings Against Certain Organs of State Act (No. 40 of 2002) provides in peremptory terms that a creditor must first issue a written notice before instituting an action against an organ of State. | am advised by my legal representatives that Semthe letter of demand (annexure "SM 1") issued by my attorney was in accordance with the provisions of section 3 of Act No. 40 of 2002. 12.171 am further advised by my legal representatives that such a written notice is a document commencing legal proceedings in terms of the Provisions of sub-section (6) of section 15 of the Prescription Act. The tungainsaid evidence (according to the stated case) Is that on 17 July 2013 my attorney issued a written notice to the Respondent demanding paying of a debt. | am advised by counsel that such a written notice interrupted the running of a prescription THE LAW 13, 13.1 Under section 12 of the Prescription Act, prescription of a debt (which al includes a delictual debt) begins to run when the debt becomes due and a debt becomes due when the creditor acquires knowledge of the facts: from which the debt arose. In other words, the debt becomes due when the creditor acquires a complete cause of action for the recovery of @ age hadebt or when the entire set of facts upon which he relied to prove his claim i in pa 13.2 In Truter it was held that in a delictual claim the requirements of fault ‘and unlawfulness are not factual ingredients of the cause of action but are legal conclusions to be drawn from the facts." The Supreme Court of ‘Appeal also defined the phrase “cause of action” for the purposes of prescription to mean: “.. every fact which it will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.” 133 Itis also provided in Truter that an expert opinion that certain conduct is Wrongful is not itself a fact but, rather evidence. "* * See para (27) at 171€ * at para 19 ofthe Judgement. See para (20) at 1758. kom apBa BS 36 The decision of the Supreme Court of Appeal in Truter is also complimented by other decisions of the Supreme Court of Appeal in Claasen, Yellow Star Properties, Van Staden, Gore” and recently Premier Attraction 300 CC vs City of Cape Town’ (“Premier Attraction 300¢C"), It will be observed that there is lack of consistency by the Supreme Court Cf Appeal regarding the interpretation of the provisions of sub-section (3) of section 12 of the Prescription Act. On the one hand, inits dex in Truter, Claasen, Yellow Star Properties, Van Staden vs Fourie and Gore the Supreme Court of Appeal held that itis only minimum facts ‘which are necessary in deciding whether a debt has prescribed, Legal conclusions or legal consequences and expert opinion flowing from such facts are irrelevant and they do not stop the running of Prescription. According to this interpretation, i: is assumed that the creditor has knowledge about the legal conclusions or consequences 2007 (3) 3 112 (Sea), * 2016 (2) AISA 888 (WCC) at para (11); page 894 dg. 43 Semflowing from the minimum facts in his or her position irrespective of the ‘complexity of the issues relating to the minimum facts. 13.7 Conversely, in MaCleod and Shange it was held that the claim in each ‘matter had not prescribed because the plaintiff was igrorant about the: legal conclusions or consequences flowing from the facts in his or her Possession. Prescription began to run after the plaintiffin each case had obtained legal advice. The court of first instance should have also made 2 similar finding because it was agreed by the parties in the stated case that | was not aware that the conduct of the police was wrongful until | obtained 2 legal advice from my attorney in July 2013, PROSPECTS OF SUCCESS TO THE APPLICATION FOR LEAVE TO APPEAL 14, 14.1 | am advised by counsel, and verily believe, that the provisions of sections 11(d), 12(3) and 15 of the Prescription Act should be interpreted restrictively because they interfere with existing rights of ordinary citizens. | am further advised by counsel that infact the entire aa} age sm42 143 “1 Prescription Act should be subservient to the provisions of sections 34 and 39 of the Constitution. The Constitution is promoting accessibility to a court of law for resolution of disputes, particularly disputes relating to ‘violation of Bll of Rights enshrined therein. | am further advised by counsel, and again verily believe, that the provisions of sections 11(d) and 123) ofthe Prescription Act do not have a guillotine like effect in the sense that once a period of three years expires, the right of a creditor to sue his or her debtor is automatically ‘extinguished at once. It was never the intention of the legislature that the rights of creditor are simply extinguished once a period of three vears expires irrespective of whether the creditor i ignorant about the legal conclusions or consequences of a wroneful conduct. Nowhere does the Prescription Act seek to extinguish rights of an innocent, ignorant and uninformed creditor. To assume that an innocent, ignorant and uninformed creditor has knowledge about legal conclusions or consequences flowing from fact in his or her possession is tantamount to imputing on him or her knowledge which he or she does not have at all. 0 3144 145 146 This it, with respect, the main flaw in the decisions of the Supreme Court ‘of Appeal in Claasen, Yellow Star Properties, Van Staden, Truter and Gore, ‘The main thrust of these judgements of the Supreme Court of Appeal is tthe assumption that an innocent, ignorant and uninformed person has knowledge about the legal conclusions or consequences of a wrongful conduct. It is assumed that because the creditor is in possession of ‘minimum facts, therefore, he or she has knowledge about the legal conclusions or consequences flowing from such facts and, therefore, prescription begins to run. | reiterate that nowhere is this parsimonious interpretation provided (either expressly or by necessary implication) in the Prescription Act. |lam advised by my legal representatives that the present case presents a very sad state of affairs. | did not know that | should have been taken to court within a period of 48 hours and failure to do by police constituted a wrongful conduct. Moreover, | was told by the police, whom | regarded as trustworthy, reliable and honest State officials, that Sam147 us a ‘they would later take me to court. | expected to know the reasons for my arrest and detention once Iwas in court. Whilst it is correct that my cause of action (ie. wrongful arrest and detention) was complete the moment | was released from detention, however, did not know that | had a cause of action against the police. This has also been admitted by the police in the state case, thus fort 1g my contention that | was mistreated by police when they indicated that they would take me to court. There is ungainsaid evidence that frst became aware about the right to sue the police and the Respondent in July 2013 when | met my attorney, as set out in the stated case. | respectfully reiterate that my postion is not aifferent from that of plaintiff inthe decisions of the Supreme Court fof Appeal in MaCleod and Shange. | received an acvice from my attorney in July 2013 and this is the period when prescription should have begun to run as it was the case in the Supreme Court of Appeal in MaCleod and Shange.1439 It was, with respect, a misdirection on the part of the court of first Instance to simply ignore the relevance of the decisions in MaCleod and ‘Shange and apply the decisions in Claasen, Yellow Star Properties, Van Staden, Truter and Gore. 14.10 | am advised by my legal representatives that it was never the intention of the legislature when passing the Prescription Act that prescription begins to run even if a creditor is ignorant about the right to sue a debtor. Knowledge about minimum facts, or even overwhelming facts, hhas no significance if the aggrieved person is oblivior about the legal implications of such facts. 44.41 The court of first instance dismissed my action purely onthe basis that knowledge of a legal remedy does not interrupt the running of 2 Prescription. | lost the case simply because of my ignorence about the legal implications of detention in a police cell for a period in excess of 48 hours without being brought before a court of law. 44.42 In line with the decisions in MaCleod and Shange, in this case prescription should have begun to run in July 2013 i.e the date when 1 Sem Wl Poe Sob.was advised by my attorney that my detention in excess of 48 hours ‘without being brought to a court of law was wrongful and actionable in law. 14.13 What exacerbates my fate is that upon my release from detention, the police indicated to me that they would call me later to attend court but this turned out as 2 subterfuge to cover their wrongful conduct. | reiterate that | relied on what the police told me because of my trust and respect to them as responsible officals of the State. 24.141 am advised by counsel that the decisions of the Supreme Court of Appeal in Trter, Claasen, Yellow Star Properties, Van Staden, Gore and recently Premier Attraction 300 CC are advocating a rigid and restricted approach to the interpretation of the provisions of section 12(3) of the Prescription Act. 14.15 | am further advised by counsel that the interpretation of section 12(3) by the Supreme Court of Appeal in these judgements is incongruent with the peremptory provisions of section 39(2) of the Constitution because the innocence and ignorance of a person about the legal conclusions or Soo, arog‘consequences of the wrongful conduct of a debtor are completely ignored when considering whether a debt has prescribed, 14.16 Profoundly, none of these judgements of the Supreme Court of Appeal make reference to the peremptory provisions of section 39(2) of the Constitution. With respect, they simply adopt a mechanical approach to the interpretation of the provisions of section 12(3) of the Prescription Act. 14.171 am advised by counsel that the decisions in Claasen, Yellow Star Properties, Van Staden, Truter and Gore of the Supreme Court of ‘Appeal are not reconcilable with those of this Honourable Court in ‘Makate (paras (90), (91) and (92)), Links (para (22), Road Accident Fund ‘and another vs Mdeyide™ and South African Transport and Allied Workers Union (SATAWU) and others vs Moloto NO and another.” In these judgements this Honourable Court makes 2 constant reference to the peremptory provisions of section 39(2) of the Constitution whenever "2011 2) 5A26,CC. ™ 2012 (6) SA249 (CC), sol seh‘a court is dealing with the interpretation of a legislation which adversely affects rights of individuals. 14.18 Apart from not referring to the provisions of section 39(2) of the Constitution, init judgements the Supreme Court of Appeal has not referred to the judgments of this Honourable Court. 14,19 | am advised by counsel that had the Supreme Court of Appeal relied on the provisions of se 39(2) of the Constitution and the judgements of this Honourable Court, it would have preferred an interpretation of the Provisions of section 12(3) of the Prescription Act which promotes *. the spirit, purport and objects of the Bill of Rights". 14.20 An interpretation of the provisions of section 12(3) of the Presciption ‘Act which ignores the innocence and ignorance of a person about the legal implications or consequences of a wrongful act does not promote “. the spirt, purport ond objects of the ail of Rights. such an interpretation also frustrates the accessibility of a person to a court in terms of the provisions of section 34 of the Constitution. Son st1P 0 Boh.14.21 14.22 a sz A recognition cf the claim of @ person who is innocent and ignorant about the wrongful conduct of another will nt open floodgates in the sense of frustrating the legislature's intention of passing the Prescription Act. An aggrieved person has the onus to prove his or her case on @ balance of probabilities. Whether he or she has knowledge about the legal conclusions or consequences of a wrongful act isa factual inquiry tobe decided by a court. | respectfully reiterate that public considerations and good sense of Justice require the recognition of such a claim by a court and the running of a prescription should be the date on which the person becomes aware ‘about the legal conclusion or consequences of a wrongful conduct. 1s, ‘Acute illiteracy is prevalent in the country and this isthe same to abject legal poverty. The interpretation of the provisions of sub-section (3) of section 12 of the Prescription Act by the Supreme Court of Appeal in its dec ns in Claasen, Yellow Star Properties, Van Staden, Truter and Gore presents difficulties to the ordinary uneducated rural citizens. Sem15.2 That s why the decisions of the Supreme Court of Appeal in MaCleod ‘and Shange are good law because they take into account the ignorance: of the aggrieved persons. 415.3 For example, in Drennan Maude & Partners v Pennington Town Board” Oliver JA said: “Section 12(3) of the Act provides that a creditor shall be deemed to have the required knowledge “if he cauld have acquired it by exercising reasonable care." In_my view the requirement “exercising reasonable care" requires diligence not only in the ‘ascertainment of the facts underlying the debt, but also in relation {0 the evaluation and sianificance of those facts. This means that the creditor is deemed to have the requisite knowledge if a reasonable person in his position would have deduced the identity of the debtor and the facts from which the debt arises.” (My emphasis) 4998 (3) SA 200 (sca) sap Sub-154 155 156 sal ‘As Ihave already stated, once | was released from the police cells after a period of five days in detention, 1, according to the law in Claasen, Yellow Star Properties, Van Staden and Truter and Gore, had all the facts necessary to constitute a cause of action against the police and the Respondent. Profoundly, |, as a lay person, did not know that my detention in a police cell for @ period in access of 48 hours without being taken to a court of law constituted an actionable wrongful act on the part of the police. | could not have sued the Respondent immediately after | had been released from detention because | did not know that the conduct of the: police was wrongful. | respectfully submit that prescription could not hhave run against me because | was innocent, ignorant and uninformed about the legal conclusions or consequences flowing from the conduct Of the police which turned out to be wrongful. This was the position in the cases of MaCleod and Shange. Public policy considerations and good sense of justice dictate that Prescription should have run against me only when | acquired knowledge Sm Sbabout the legal conclusions or consequences of the wronaful conduct of the police in July 2013 when | met my attorney. CONDONATION 16, 361 | wish to inform the Honourable Court that 1 am impecunious, unemployed, iterate and residing in rural areas where there are Virtually no prospect of employment, either on a full-time or part-time basis. My attorney of record has been representing me in the action | brought against the Respondent in the court of first instance on a contingency basis, 16.2 After | had instructed my attorney of record to handle the matter on my behalf on a contingency basis, they would advise me about the progress of the matter and at times | would make enquities and got updated. Postal services are very poor in my area berauice itis rural and far distant from the main road. : 3 551163 On 28 June 2016 | was advised by my attorney of record that the Supreme Court of Appeal had dismissed my application for leave to ‘appeal against the judgement of the court of first instance, My attorney indicated that | needed to place him with funds to explore a possibility of approaching this Honourable Court for leave to appeal. | indicated to him that | have no financial means to take the matter further and | then regarded it as closed, 16.4 | am advised by my attorney, and verily believe, that he approached @ senior counsel practising in Johannesburg and urged him to handle the matter on a contingency basis, which he agreed. On 22 July 2016 my attorneys briefed senior counsel in Johannesburg to prepare the necessary application papers. | am further advised by my attorney that. upon receipt of the brief senior counsel indicated that he had serious time constraints but would ensure that the papers were ready on 5 ‘August 2016. 165 On 5 August 2016 senior counsel dispatched the application papers by email to my attorney of record in Umtata, Eastern Cape. | am advised by attorney that upon receipt of the application papers, he then Sin 56 [Page Sb‘contact me for the purpose of attesting my affidavit. On 9 August 2016 1 received a call from attorney of record to attend his office where f attested my affidavit, 166 In the premises, | respectfully pray the Honourable Court to condone the delay to bring this application within the time frames prescribed by the relevant Rule of this Honourable Court. No prejudice will be suffered by the Respondent in the event of the Honourable Court granting the condonation. Conversely, | will suffer substantial prejudice should the Honourable Court dismiss the application on the ground that the delay is ‘not condonable. CONCLUSION wv. 17.1. respectfully pray the Honourable Court to grant the reliefs | am seeking in the Notice of Motion prefixed to this affidavit. | regard the conduct of the police in arresting and detaining me without good cause as Samy S726humiliating, deaming, degrading and lowering my estsem in the community. 17.2. My constitutional right to inherent dignity and the right to have my dignity respected and protected has been violated gratuitously by the police (section 10 of the Constitution). 17.3 | urge the Honourable Court to grant me leave so that the matter is remitted to the court of first instance for a full ventilation of the merits. My family and the community are eager to know the real reason for my arrest and detention. Stock theft is viewed as a very serious offence in rural areas and suspects are killed. | feel insecure in my community, 18 Accordingly, it may please the Honourable Court to grant the relief | am seeking against the Respondent with costs. Som solr ob.— Si DEPONENT ‘The Deponent has acknowledged that he knows and understands the contents of this affdavt which was signed ang sworn to before me at Vryteta on this the 7 day of AUGUST 2016, the regulations contained in Government Notice No. 1258 of Ju 1972, as amended and Government Notice No, RI6A8 of 17 August 1977, 2s amended having been complied with RACTICING ATTORNEY selrace