- November 2, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
This is a special plea of prescription raised by the defendants that the plaintiff’s claim prescribed for non-compliance with s 39(1) of the Act. The plaintiff, in the particulars of the claim, seeks payment of damages allegedly caused to his motor vehicle after a collision with a motor vehicle, GRN 986, driven by the second defendant while acting within the course and scope of his employment with the first defendant, plus interest and costs of suit.
The defendants contend that the plaintiff’s claim prescribed for non-compliance with s 39(1) of the Act, and further that the plaintiff did not plead that he sought a waiver from the Minister to exempt him from compliance with the provisions of s 39(1). They buttress their contention with the averment that the plaintiff’s claim falls within the ambit of civil claims against the state or a person in respect of anything done in pursuance of the Act, therefore, such claim should be instituted within 12 months after the cause of action arose.
The plaintiff, on the other hand, contends that the special plea is bad as it does not raise the failure by the plaintiff to provide a notice to the defendants of not less than one month before instituting the proceedings. It was submitted on his behalf that failure to refer to the one-month notice in the special plea is fatal to the said special plea and, therefore, the special plea must fail.
The law
Sibeya J:
‘[19] Section 39(1) of the Act reads:
‘(1) Any civil proceedings against the State or any person in respect of anything done in pursuance of this Act shall be instituted within 12 months after the cause of action arose, and notice in writing of any such proceedings and the cause thereof shall be given to the defendant not less than 1 month before it is instituted: Provided that the Minister may at any time waive compliance with the provisions of this subsection.
(2) If any notice contemplated in subsection (1) is given to the Inspector-General, it shall constitute notification to the defendant concerned.
(3) Any process by which any proceedings contemplated in subsection (1) are instituted and in which the Minister is the defendant or the respondent, may be served on the Inspector-General.’ (Own emphasis)
[20] The Supreme Court in Minister of Minister of Home Affairs v Madjiet and Others 2007 (2) NR 475 (SC), reconsidered the constitutionality of s 39(1) for alleged violation of Articles 10(1) and 12(1)(a) of the Constitution, and found that the limitation was connected to the legitimate governmental purpose of regulating claims against the state to promote speed, prompt investigation of surrounding circumstances and settlement where justified. The Supreme Court further stated that, in para 38, that:
‘… It was, in my view, for the reason of avoiding rigidity and inflexibility that the legislature (in s 39(1) decided to include the waiver proviso. In this regard, I want to stress the component of that proviso which states that the Minister’s power of waiver can be exercised at any time. I construe this component to mean, for instance, in the case of those sections which provide that the limitation period starts to run from the date when the claimant became aware or might be reasonably expected to become aware of the facts constituting the cause of action, that the claimant’s right to sue would be prescribed and extinguished if he/she does not sue within the ensuing limitation period. On the other hand, time is of no essence in the case of moving the Minister for a waiver.’
[21] The Supreme Court has settled the law that the provisions of s 39(1) are not inflexible and rigid, nor are they unconstitutional. It follows that compliance with s 39(1) remains mandatory where civil proceedings are instituted against the state or any person in respect of anything done in pursuance of the Act. The provisions are peremptory, and non-compliance therewith is fatal to the plaintiff’s claim.’
Analysis
[23] At the outset, I opt to commence by considering the argument raised by Mr Elago that the special plea is bad for not addressing the one-month notice and that, on that basis alone, the special plea ought to fail. This contention, in my view, can be disposed of without breaking a sweat.
[24] Section 39(1) provides for two processes. Firstly, the proceedings must be instituted within 12 months after the cause of action arose. Secondly, a notice in writing of such proceedings and the cause of action must be provided to the defendants not less than one month before the proceedings are instituted. Section 39(1) compels compliance with the said two processes. This means that for the proceedings to comply with s 39(1), they must be instituted within the said period of 12 months, and before which, a notice of not less than one month must be provided to the defendants.
[25] In several decisions of this court, proceedings against the state have failed for not complying with either the 12-month or the one-month notice distinctive of one from the other. In Hamwoongo v Government of the Republic of Namibia (HC-MD-CIV-ACT-DEL-2021/00670) [2022] NAHCMD 24 (30 January 202), this court upheld a special plea solely raised and decided based on not being instituted within 12 months from the date that the cause action arose. In Kariseb v Ministry of Safety and Security (SA 68/2018) [2020] NASC, the Supreme Court confirmed the High Court’s finding of the dismissal of a civil claim instituted after the 12 months provided for in s 39(1) had lapsed.
[26] The failure to institute civil proceedings against the state within 12 months after the cause of action arose violates the provisions of s 39(1), irrespective of whether a one-month notice is given to the state or not. The claimant‘s failure to institute proceedings within 12 months means that he or she is time-barred and unless the Minister waives compliance with s 39(1), the claim is prescribed and the claimant is barred from instituting such proceedings.
[27] I, therefore, find that there is no merit in the argument raised that the special plea of non-compliance with the 12 months cannot be raised without simultaneously raising non-compliance with the one-month notice period. Any of the two processes, as stated, are distinguishable from each other and may be uniquely pursued in different proceedings. In my considered view, there will be nothing untoward with pursuing any of the two processes singularly, in appropriate proceedings.
[28] It remains to be determined whether the defendants’ special plea has merit or not. To answer this question in line with Bruni N.O. v Inspector-General of Police (HC-MD-CIV-ACT-OTH-2022/00521) [2023] NAHCMD 347 (22 June 2023), it should be determined whether the conduct of the second defendant complained of was done in pursuance of the Act or not.
[29] As gleaned from Bruni, there is a distinction between anything done within the course and scope of employment and anything done in pursuance of the Act. Section 39(1) applies to anything done in pursuance of the Act. Distinguishing the two concepts involves the consideration of the purpose of the Act, the functions of the police provided for in the Act, and the facts of each particular case.
[31] To determine whether the conduct of the second defendant was carried out in pursuance of the Act, it is critical to consider the facts of the matter. In the present case, no evidence was found. Ms Van der Smit relied on para 6 of the particulars of the claim in her argument that the plaintiff acknowledged that the second defendant acted in pursuance of the Act. If she is correct, then it means we have a concession from the plaintiff that the actions of the second defendant fall within the provisions of s 39(1). The question remains whether or not she is correct.
[32] As stated above, it is accepted by Bruni that there is a difference between acting within the course and scope of employment and acting in pursuance of the Act. What then is meant by “in pursuance of this Act” provided for in s 39(1) of the Act?
[34] The Oxford English Dictionary, 11th edition, defines it as ‘the carrying out or pursuing of something’. Pursue is defined as ‘seek to attain (a goal), follow or continue with’. Can it be said that the plaintiff, in the particulars of the claim, averred or conceded that the second defendant acted in pursuance of the Act or not?
[35] Closer scrutiny of para 6 of the particulars of claims reveals that the plaintiff avers that the second defendant acted ‘within the course and scope of his employment with the first defendant, alternatively whilst acting in the furtherance of the interest, with the consent and to the benefit of the first defendant’. The furtherance of the interest, consent, and benefit of the first defendant mentioned in para 6 of the particulars of the claim is sought to be stretched by Ms Van der Smit to include pursuance of the Act.
[37] Having found that there were no averments or concessions made by the plaintiff that the second defendant acted in pursuance of the Act, it follows that there are no facts before the court where it can be deduced that the second defendant acted in pursuance of the Act. Ordinarily, this should signal the end of the special plea and command that its dismissal be voiced out.
[38] Ms Van der Smit, however, had another arsenal in her string. She submitted that at the end of her arguments, the determination of the special is referred to trial. I point out that the special plea was filed on 4 July 2023, where no mention was made to refer the matter to trial for oral evidence to be led. She filed heads of arguments on 9 October 2023 and presented oral arguments on 16 October 2023 with no voice of any suggestion of referral of the special plea to trial being heard. It was only after the court brought Bruni to the attention of the parties, and only at the tail end of the arguments of 24 October 2023, that Ms Van der Smit suggested the referral of the special plea to trial.
[39] It follows from the above that the defendants were content with bringing their special plea based on the papers filed of record without referring the matter to trial. This is an option that the defendants made as the parties that are dominus litis in the special plea. The defendants took the option to institute and proceed with the special plea on the papers and they must live with their option. I find that referring the special plea to trial, as belatedly suggested by the defendants, after an option to proceed on the papers and after hearing arguments on the special plea will result in the defendants having a second bite at the cherry, so to speak, and I hold the view that this will be unjust to the plaintiff or at the very least not be by justice.’
Wherefore the court held:
-
- That there is a clear distinction between acting within the course and scope of one’s employment and doing anything in pursuance of the Police Act.
- That no factual basis was established to suggest that the second defendant acted in pursuance of the Act for the provisions of s 39(1) of the Act to be invoked. The failure to establish such a factual basis means that the attempt by the defendants to invoke the provisions of s 39(1) of the Act is misplaced.
Given the foregoing, it was ordered that the first and second defendants’ special plea of the plaintiff’s failure to comply with the provisions of section 39(1) of the Police Act 19 of 1990, is dismissed.