Mtokonya v Minister of Police

The applicant was arrested by members of the South African Police Service on 27 September 2010 and detained for four to five days without being brought before a court. He was released without ever appearing in court. In July 2013, after consulting an attorney, the applicant learned that his detention beyond 48 hours without a court appearance was unlawful and that he could sue the Minister of Police for unlawful arrest and detention. He thereafter served a statutory notice in terms of the Institution of Legal Proceedings Against Certain Organs of State Act and issued summons in April 2014. The respondent raised a special plea that the claim had prescribed. The parties submitted a stated case under rule 33, agreeing that the issue was whether prescription only began to run once the applicant knew that the police conduct was wrongful and actionable.

Leave to appeal was granted, but the appeal was dismissed. The High Court’s order upholding the special plea of prescription was confirmed. No order as to costs was made.

This case authoritatively settled, at Constitutional Court level, the interpretation of section 12(3) of the Prescription Act. It confirmed that prescription is not delayed by a creditor’s ignorance of the law or of the existence of a legal remedy. The judgment provides legal certainty on when prescription begins to run and affirms existing Supreme Court of Appeal jurisprudence, while balancing prescription against the constitutional right of access to courts.