Kruger v National Director of Public Prosecutions

Mr Kruger was arrested on 6 October 2009 and appeared at the Randburg Magistrate's Court on the same day in relation to a complaint by Mr Johnston regarding the collection of motorcycles and spare parts. The prosecutor opposed bail and Mr Kruger was sent to Diepkloof Prison for seven days. On 13 October 2009, at his second court appearance, all charges were withdrawn without explanation and he was released. Mr Kruger subsequently instituted an action against the Police. In August 2012, after a court order, he obtained the police docket which contained a statement by the Investigating Officer indicating that the complaint related to a civil matter, there would be no further investigations, and that bail should not be opposed. Mr Kruger then instituted an action for malicious prosecution against the National Director of Public Prosecutions in late 2012 or January 2013. The summons was served on 31 January 2013. The respondent raised a special plea of prescription, arguing that the claim arose on 13 October 2009 when charges were withdrawn, and therefore more than three years had elapsed by the time summons was served.

• When does prescription commence running in a claim for malicious prosecution under section 12(3) of the Prescription Act 68 of 1969?
• What facts must a creditor have knowledge of for a debt to be deemed due in a malicious prosecution claim under section 12(3)?
• Does a creditor need to know the facts demonstrating bad faith on the part of the prosecutor before prescription begins to run?
• Whether the Constitutional Court has jurisdiction in a matter involving the interpretation and application of prescription legislation
• Whether the Biowatch principle on costs applies to constitutional litigation

Condonation for the late filing was granted. The application for leave to appeal was dismissed by a majority with costs.

The majority held that the matter raised only a factual issue - whether the applicant had sufficient knowledge of facts on 13 October 2009 to infer he could sue for malicious prosecution - and therefore did not establish this Court's jurisdiction. The minority would have held that section 12(3) of the Prescription Act requires a creditor in a malicious prosecution claim to have knowledge of facts establishing bad faith or lack of reasonable and probable cause on the part of the prosecutor before prescription begins to run, and that such knowledge is only acquired when the creditor knows what information was available to the prosecutor at the relevant time. In cases of malicious prosecution against public prosecutors, this may require access to the police docket.

Zondo DCJ (in the minority) observed that matters raising prescription constitute constitutional issues because prescription implicates the right of access to courts under section 34 of the Constitution, citing Mtokonya v Minister of Police. The minority also noted that the matter implicated the right to freedom of movement under section 21(1) of the Constitution given Mr Kruger's seven-day incarceration. Jafta J observed that the respondent failed to discharge the onus of proving prescription by not calling any witnesses or placing evidence before the court, instead relying on concessions from the applicant's attorney. Theron J made important observations about when the Constitutional Court should dispose of matters summarily without a hearing under rule 19(6)(b), emphasizing that debatable issues on complex matters warrant oral hearings. She noted that only four of approximately 150 judgments delivered without hearings have involved disagreement among judges, all in the last three years preceding the judgment, suggesting that matters producing judicial disagreement should be heard orally.

This case illustrates significant disagreement within the Constitutional Court on: (1) the scope of the Court's jurisdiction in prescription matters; (2) what constitutes "facts from which the debt arises" under section 12(3) of the Prescription Act in the context of malicious prosecution; and (3) whether a creditor must know facts establishing bad faith before prescription begins to run. The case highlights the tension between factual and legal enquiries in prescription matters and the distinction between facta probanda (facts that must be proved) and facta probantia (proving facts). It also raises important questions about when matters should be decided summarily versus being set down for oral hearings in the Constitutional Court.