- April 26, 2023
- |Concise Law Reports (CLR), Legislation
Reasons for Orders: Practice Directive 61
The plaintiff pleaded that on or about 30 April 2017, he was unlawfully assaulted by the sixth and seventh defendants whilst he was detained in the Windhoek Correctional Facility. The plaintiff’s summons and particulars of claim was issued on 9 July 2019. The approximate time period between the aforementioned dates is about 2 years and 2 months. The plaintiff claimed damages for emotional and physical trauma, which he was allegedly subjected to at the hands of the sixth and seventh defendants under the employment of the first and second defendants. The defendants raised a special plea of prescription.
During the oral argument, Ms. Van Der Smit, on behalf of the defendants, argued that the plaintiff’s summons was issued on 9 July 2019 and that the alleged cause of action arose on 30 April 2017. She argued that the plaintiff’s claim was instituted outside of the 12-month time period provided for under section 133(3) of the Correctional Services Act 9 of 2012 (the Act) and as a result thereof the plaintiff’s claim has been prescribed.
Determination and applicable legal principles
Section 11 (d) of the Prescription Act provides that:
‘save where an Act of Parliament provides otherwise, three years in respect of any other debt’
One can clearly say that the intention of the legislature was that when there is no other act of parliament, which provides for prescription, then only s 11 (d) of the Prescription Act finds application.
Section 133 (3) of the Correctional Service Act provides that:
‘(3) No civil action against the State or any person for anything done or omitted in pursuance of any provision of this Act may be entered into after the expiration of six months immediately succeeding the act or omission in question, or in the case of an offender, after the expiration of six months immediately succeeding the date of his or her release from correctional facility, but in no case may any such action be entered into after the expiration of one year from the date of the act or omission in question.’
In Kruger v Ministry of Safety and Security ((HC-MD-CIV-ACT-OTH-2018/00137) [2020] NAHCMD 334 (06 August 2020)) the Court held that:
‘[6] Section 133(3) prescribes the time limit within which to institute actions against the Correctional Services officials in terms of the Act. Thus, a failure by any person who wants to institute an action against the officials of the Correctional Services within the period stipulated in sub-section (3), that person is, by law, barred from instituting such an action. There is nothing that a person can do to be allowed to sue after the time limit. He or she is time–barred. . .’
It follows that the question of law to be determined is, whether or not the plaintiff failed to institute action prior to the expiration of one year from the date of the alleged assault, as contemplated by section 133(3) of the Correctional Service Act.
NDAUENDAPO J stated that:
‘[18] The plaintiff is deemed to have complied with s 133(3) of the Act if he brought the action within twelve months after the cause of action arose. This is however not the case in this matter as the act occurred in 2017 and the plaintiff instituted the action in 2021 only.
[19] As a result, I am of the view that the plaintiff failed to institute action within one year of the alleged assault and accordingly, his claim prescribed.’
The Court, therefore, upheld the special plea of prescription with no order as to costs.