Kruger v Ministry of Safety and Security (HC-MD-CIV-ACT-OTH-2018/00137) NAHCMD 334 (06 August 2020);

Group

Headnote and flynote
Flynote: 

Correctional Service Act - Action against official -  Failure by plaintiff to comply with s 133(4) of the Correctional Services Act 9 of 2012 - Written notice to the defendants a precondition to institute a civil action - Failure to do so is a bar for a civil action to be instituted against the defendants.Correctional Service Act - Action against official -  Failure by plaintiff to comply with s 133(4) of the Correctional Services Act 9 of 2012 - Written notice to the defendants a precondition to institute a civil action - Failure to do so is a bar for a civil action to be instituted against the defendants.

Headnote and Holding: 

The plaintiff in the matter, failed to give a written notice to the defendants, the officials of the Correctional Services which is a precondition for instituting a civil action. As a result thereof, the defendants raised a special plea to the action which special plea was upheld by the court and struck the matter from the roll.

Held: that the requirement under s 133(3) is the first to be complied with before one could think of the written notice under s 133(4).

Held further that a failure to give written notice in terms of s 133(4) is fatal to the action of the plaintiff and is null and void.

Full judgment

REPUBLIC OF NAMIBIA 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

 

 

Case no: HC-MD-CIV-ACT-OTH-2018/00137

 

In the matter between:

 

RICHARDO KRUGER                                                                           PLAINTIFF

 

and

 

MINISTRY OF SAFETY AND SECURITY:

CHARLES NAMOLOH                                                                         1ST DEFENDANT

 

THE COMMISSIONER-GENERAL/

DIRECTOR-GENERAL OF THE NAMIBIAN

CORRECTIONAL SERVICE                                                                2ND DEFENDANT

 

OFFICER IN CHARGE: WINDHOEK

CORRECTIONAL FACILITY                                                               3RD DEFENDANT

 

Neutral citation:           Kruger v Ministry of Safety and Security (HC-MD-CIV-ACT­ OTH-2018/00137) [2020] NAHCMD 334 (06 August 2020)

 

Coram:           Unengu, AJ

 

Heard:             29 July 2020

 

Delivered:      06 August 2020

 


ORDER


 

(i)            The special plea is upheld.

(ii)           The matter is struck from the roll and finalized.

(iii)          No order as to costs made.

 


 

SPECIAL PLEA JUDGMENT


 

UNENGU, AJ

 

[1]        On 23 January 2018 the plaintiff instituted an action for damages in the amount of N$ 4, 5000; interest of 20 per cent on the said amount per annum from date of judgment to date of payment against the Minister of Safety and Security and 2 officials of the Correctional Services in their official capacity. The cause of action, the plaintiff has alleged in his particulars of claim, was assault allegedly perpetrated on him by members of the Correctional Services on 19 February 2017 while he was an inmate of the facility serving a sentence.

 

[2]        The defendants in their plea to the particulars of claim, raised a special plea in limine on the grounds that the plaintiff's claim prescribed as it was instituted six months after the period prescribed in section 133(3) of the Correctional Services Act (the Act)1, and that plaintiff failed to give written notice to the defendants provided for ins 133(4) of the Act before the action is instituted.

 

[3]        On 3 July 2019 with the assistance of his legal practitioner of record, the plaintiff filed amended particulars of claim joining to the action more defendants in an irregular manner and reduced the quantum to N$ 1 2000 with costs alleging that written notice in terms of s 133(4) was given. Why the plaintiff was allowed to go through all the judicial case management processes in the matter until the pre-trial conference stage with these defective pleadings, surpasses my understanding.

 

[4]        It is trite law that an amendment to the particulars of claim can only amend the particulars of the claim. Such an amendment should under no circumstances be used to join to the action parties who were not served with the summons. Joinder of parties are regulated by rule (40) (5) and must be brought before the managing judge by way of an application. Notice must be given to the parties to be joined to the cause to comply with the audi alteram principle. In this matter the plaintiff did not follow the procedure under rule 40(5) read with rule 70.

 

[5]        On 28 July 2020 when the matter was called for trial, Mr Bangamwabo appeared on behalf of the plaintiff instructed by the Legal Aid directorate while Ms Tjahikika from the Government Attorney's Office represented all the defendants. Ms Tjahikika informed the court that the defendants were not persisting with the special plea of prescription of the plaintiff's claim in terms of s 133(3) but would pursue plaintiff's failure to comply with the peremptory provisions of s 133(4) which provides that notice in writing of every such action, stating the cause thereof and the details of the claim, must be given to the defendants at least one month before the commencement of the action.

 

 

[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 person can do to be allowed to sue after the time limit. He or she is time -barred. Even if the written notice of one month in terms of s 133(4) to the other parties has been given, that will not lift the bar. In this matter, counsel for the defendants did not insist with the special plea in respect of prescription for reasons only known to her. In my view, the plaintiff was required in the first instance to meet the requirement set out ins 133(3) before one could think of the written notice under s 133(4).

 

[7]        In Simon v Administrator-General, South West Africa2 Du Tait, AJ when dealing with s 32 of the Police Act 7 of 1957 a provision similar to s 133(4) of the Correctional Service Act, held as follows:

"A proper and timeous notice under s 32(1) is of course a precondition for the institution of a civil action arising under the Police Act. See Dease v Minister van Justisie 19623 .

 

[8]        Du Tait, AJ held further that the object of the notice required under s 32(1) is, to inform the State sufficiently of the proposed claim so as to enable it to investigate the matter. And that such notice need not be as detailed as a pleading.

 

[9]        In the matter of lndilinga Systems and Logistics CC v The Minister of Safety and Security and Another4, Geier, J upheld an exception against the particulars of claim of the plaintiff for failure to comply with the provisions of s 39(1) of the Police Act 19 of 1990 and held that a failure by the plaintiff to comply with s 39(1) of the Police Act in toto is excipiable. Compare Dumeni vs Minister of Safety and Security5.

 

[10]      Section 39(1) of the Police Act ands 133(4) of the Correctional Service Act are identical and provide as a pre-condition for the institution of the civil action against the Police and the Correctional Services officials. A failure to give written notice to officials of the Correctional Services in compliance with s 133(4), is fatal to the action of the plaintiff and the action is null and void. The court will, under those circumstances, uphold the preliminary point raised against such a failure to give notice under the section and the action be struck from the roll.

 

[11]      I must also point out that Mr Bangamwabo during his oral submission, was confused, incoherent, talked about things he as the legal practitioner for the plaintiff never pleaded and prayed for as relief in the pleadings. Like questioning the constitutionality of s 133(3) and (4) and many other ridiculous and senseless arguments. It was clear that Mr Bangamwabo was just clutching to drifting straws in the hope of staying afloat. Unfortunately there was nothing counsel could do to salvage the claim of his client, as the bullet was already through the church.

 

[12]      In that regard, I am satisfied that there is no defence to the special plea raised against the civil claim of the plaintiff by the defendants. It follows therefore, that the special plea must succeed. Accordingly, I make the following order:

(i)            The special plea is upheld.

(ii)           The matter is struck from the roll and finalized.

(iii)          No order as to costs made.

 

 

______________

E P Unengu

Acting Judge

 

 

 

APPEARANCES :

 

 

PLAINTIFF:

F Bangamwabo

FB Law Chambers, Windhoek

 

DEFENDANT:

 

N Tjahikika

Government - Officer of the Government Attorney, Windhoek

 


1 Act 9 of 2012.

2 [2] 1991 NR 151 at 153 B.

3 SA 302 (T).

4 Case No. I 209/2013 unreported judgment delivered on 10 September 2014.

5 NAHCMD 137 (22 May 2018) unreported case no 2017/01588 delivered on 22 May 2018.

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