Siphosakhe Setman v Minister of Police

The appellant instituted an action against the Minister of Police arising from a cause of action that became due on 24 or 28 January 2019. Summons was served on the State Attorney on 11 October 2021, within the three-year prescription period, and an appearance to defend and plea were filed on behalf of the Minister. However, summons was only served on the National Commissioner of the SAPS on 12 April 2022, after the prescription period had expired, and was never served on the Provincial Commissioner. The respondent raised special pleas that the appellant failed to comply with section 5(1)(b)(ii) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 by not serving the Provincial Commissioner, and that the claim had prescribed under section 11(d) of the Prescription Act 68 of 1969. The court a quo upheld both special pleas and dismissed the action. The appellant appealed that decision.

The appeal was upheld with costs, including the costs of two counsel. The order of the court a quo was set aside and replaced with an order dismissing the respondent’s special pleas with costs.

This judgment reinforces the purposive and constitutionally compliant approach to statutory interpretation in matters involving service of process and prescription against organs of state. It confirms, following Minister of Police v Miya, that service on the State Attorney within the prescription period can interrupt prescription where the Minister acquires knowledge of the proceedings and actively participates, thereby promoting access to courts and preventing undue technical barriers to justice.