In a recent Supreme Court of Appeal (SCA) matter of Minister of Police & Others v Samuel Molokwane, the question arose as to whether the respondent’s omission to serve a copy of a summons issued against the first appellant, the Minister of Police (the Minister), on the State Attorney rendered the summons a nullity despite a copy having been served on the Minister. The court a quo namely the Pretoria High Court (the High Court) concluded that it did not and dismissed two special pleas raised by the appellant based on such a non-service. The matter came to the SCA following leave to appeal being granted by the High Court.
Salient facts
The facts of the matter are relatively extensive. They, however, lie at the heart of the matter and are necessary to provide coherent insight.
On 2 December 2015, the respondent instituted action in the High Court against the Minister and the other appellants who are police officers. In his action, the respondent claimed damages for wrongful arrest and assault by the police officers. It was common cause that the police officers acted within the course and scope of their employment. The incident occurred on 8 February 2014 and the summons were served on the police officers on 8 December 2015. There was thus no controversy regarding service on the police officers but rather it was service on the Minister that was at the heart of the appeal.
Service of process commencing litigation against members of the National Executive, such as the Minister, is governed primarily by Section 2(2) of the State Liability Act 20 of 1957 (the SLA). Prior to its amendment and at the time of the above matter, that section read as follows:
“(1) In any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned must be cited as nominal defendant or respondent.
(2) The plaintiff or applicant, as the case may be, or his or her legal representative must, within seven days after a summons or notice instituting proceedings and in which the executive authority of a department is cited as nominal defendant … has been issued, serve a copy of that summons… on the State Attorney.”
In this matter, the respondent had not complied with the above provision in its terms in that despite having served a copy of the summons on the Minister’s official place of business on 4 December 2015, he failed to serve the summons on the State Attorney as prescribed in section 2(2) of the SLA.
The action was not defended by either of the appellants. As a result, the respondent obtained default judgment against the appellants. Consequently, liability was determined in favour of the respondent against the Minister and 2 other appellants. The issue of liability and quantum was separated in terms of the Uniform Rules of Court. In the result, the issue of quantum would be determined at a later stage.
The order granting default judgment was served on the Minister on 22 March 2016. On 26 March 2018, the respondent launched an application against the Minister to determine the issue of quantum. Notably, this application was served on the State Attorney on 24 August 2018 as well as at the Minister’s official place of business. This application was set down for hearing on 10 September 2018.
On 29 August 2018, the State Attorney served his notice of opposition on behalf of all the appellants. Further, on 6 September 2018, the Minister launched an application to stay (put to a halt) the application to determine the quantum of damages pending the rescission of the default judgment granted in favour of the respondent. The respondent shortly thereafter abandoned the default judgment in terms of rule 41(2) of the Uniform Rules of Court. This, however, does not affect the existence and effect of the judgment. For this to occur the judgment must be varied, rescinded or set aside. Pursuant thereto and on 13 December 2019, the State Attorney delivered a notice to defend the action on behalf of all the appellants. The State Attorney thereafter delivered the appellants’ plea.
On 3 September 2020, the appellants delivered an amended plea. In it, they raised 2 technical defences in the alternative. The main plea was based on non-compliance with Section 2(2) of the SLA. To this end, it was contended that because of non-service of the summons on the State Attorney, the summons were a nullity. The appellants, in the alternative, pleaded that to the extent that service was effected on the State Attorney on 24 August 2018 (when the application for determining the quantum was served), the respondent’s claim had prescribed as that date was more than 3 years from when the respondent’s cause of action arose (i.e. 8 February 2014).
When the High Court considered the purpose of section 2(2) of the SLA it reasoned that non-service of the summons did not render the summons a nullity. At best, such non-service amounted to what is termed an “irregular step”. This the court affirmed could in any event be remedied. Moreover, the High Court stated that the irregular step became moot when the State Attorney formally placed itself on record, opposed the application for determination of the quantum, its exchanging of pleadings with the respondent’s attorneys, participating in the pre-trial conference. The Minister had at this stage been served with the summons. In the court’s view, the Minister and other defendants had failed to demonstrate any prejudice occasioned by non-service on the State Attorney.
Considerations by the SCA
In setting out the proper approach to such provisions, the SCA cautioned against the strict mechanical approach of drawing formal distinctions (as the appellants sought to do) between what is often termed “mandatory” or “peremptory” provisions, on the one hand, and “directory” provisions, on the other hand. Often the former said to require strict compliance with a consequence of non-validity and the latter only substantial compliance or even non-compliance. This approach has been done away with by our courts.
The court made reference to several authorities on the correct approach to provisions such as section 2(2) of the SLA. The court was critical of the mechanical approach to such provisions. Instead, the court asserted that the question to be answered was the following:
Whether exact compliance therewith was required notwithstanding that the provisions of an Act were peremptory. This exercise entailed examining the purpose of the statutory requirement (from the language used) read in context of the statute holistically. Put better or simpler, the question was whether there had been compliance with the statutory provision viewed in light of its purpose. The above approach is a purposive approach in comparison to the more legalistic and formal approach previously used by our courts.
This approach was endorsed in the recent Constitutional Court decision of African Christian Democratic Party v The Independent Electoral Commission and Others [2006] ZACC. The court in the above case quite progressively pronounced that the purposive approach had rendered obsolete previous attempts of legalistically and formalistically enquiring into whether a statute was peremptory or directory. This enquiry being based on the wording or the text of the statutory provision in question. The Constitutional Court was of the view that this was too narrow and legalistic a view and was to be avoided.
In consonant with the purposive approach the SCA went on further to state that this approach must be viewed in light of section 39(2) of the Constitution, which dictates that an interpretative exercise into legislation should promote the spirit, purport and object of the Bill of Rights. This exercise entails that where one provision is capable of two or more interpretations that, that which promotes the spirit of the Bill of Rights is to be preferred. In this case, access to court was the right in question. The purpose of section 2(2) of the SLA thus ought to have been viewed through the prism of section 34 of the Constitution which relates to access to courts. In assessing provisions such as the provision in question, considering the underlying purpose rather than merely its text is far more consistent with our constitutional dispensation. The SCA thus took issue with the respondent’s narrow and strict approach to interpreting Section 2(2) of the SLA.
Purpose of section 2(2) of the SLA
The SCA then turned to consider the purpose the section 2(2) of the SLA. This section as it then read required that summons be served on the State Attorney within seven (7) days of being issued. In the court’s view, the purpose of this section was to ensure that the relevant “executive authority” (the Minister in this case) is afforded legal representation in the matter by the State Attorney. Thus if the State Attorney provides such legal representation (in any manner whatsoever) despite not being served by the sheriff within 7 days of the process commencing litigation, this purpose would have been served.
In the above case a copy of the summons was served on the Minister. In the court’s view, shorn of the legal and technical arguments there was nothing but a “deafening silence” on the part of the Minister as to what he did with the summons after receiving them. Most importantly is that in this case the State Attorney ultimately represented the Minister in the action by entering an appearance to defend and filing a plea and further being ready for trial. The purpose of the statutory provision had thus been achieved.
The court went on further to state that what was most pertinent to consider in these types of matters was the issue of prejudice. The court noted that there was no prejudice on the Minister in this case as a result of non-service of the summons. On the contrary, the respondent’s condonation application for the late filing of his statutory notice in terms of section 3 (the Section 3 notice) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Legal Proceedings Act) was granted. One of the issues to be considered in a condonation application in the above regard is the issue of prejudice. Notably this application was not opposed by the Minister.
Technical defence of prescription
As alluded to above, the Minister and other appellants in their special plea raised the issue of prescription in that service of the summons had occurred more than 3 years
(i.e. 24 August 2018) after the respondent’s cause of action. For this assertion, they relied on Section 11(d) of the Prescription Act 68 of 1969 (the Prescription Act) and argued that the respondent’s claim had prescribed after 3 years (i.e. 7 February 2017). Section 15 of the Prescription Act states that the running of prescription shall be interrupted by service on the “debtor” of any process whereby a creditor claims payment of the debt.
What the court importantly noted with regards to the respondent’s condonation application for the late filing of the Section 3 notice was that quite similar to the issue of the existence of prejudice, in terms of Section 4(b)(1)(i) of the Legal Proceedings Act, the court in granting an application for condonation must satisfy itself that inter alia the debt had not been extinguished by prescription. The High Court granted the condonation application. In doing so, the High Court found that the respondent’s claim had not prescribed. The matter was thus res judicata and no longer open to be canvassed by the appellants.
The court went further to state that in any event the prescription argument had no merit. For this view the court reasoned that whilst it is correct that when section 2 of the SLA is read with section 2 of the Legal Proceedings Act, service on the State Attorney instead of the Minister would have been effective service to interrupt prescription, this did not mean that the State Attorney replaced the Minister as the “debtor”. Accordingly and viewed in this light service on the Minister (as it occurred in this case) was effective service for the purposes of interrupting prescription. The fact that the summons had not been served within the dictates of section 2(2) of the SLA did not affect that. The court concluded that for purposes of interrupting prescription, there was service of “a process” on the Minister.
In support of this view, the court stated that where summons were served without a Section 3 notice however within the prescribed period, or without a Section 3 notice at all, such service was nonetheless effective for the interruption of prescription and importantly if condonation is subsequently granted. The SCA thus confirmed the High Court’s judgment and dismissed the appellants’ special pleas.
On the strength of this judgment, it would augur well for litigation lawyers to tread carefully prior to adopting pedantic and overly formalistic approaches to statutory provisions of the nature similar to that discussed in the above matter. Certainly, the purposive approach will come in handy for litigants who wish to stifle in its tracks overly technical and formalistic arguments of their opponents when dealing with statutory provisions akin to the above provision. Notwithstanding, each case as is the practice in our courts will be adjudicated based on the facts of the matter.
