Minister of Justice and Constitutional Development and Others v Pennington and Another

The first respondent was arrested in 1994 on charges of fraud, forgery and uttering. He was convicted in 1997 and sentenced to imprisonment. Upon arrest, the Minister of Home Affairs declared him a prohibited person and issued a permit allowing him to remain in South Africa pending trial and appeal, but prohibiting him from employment or conducting business. The first respondent noted an appeal, but the trial record and exhibits were not properly prepared. Despite numerous requests over 13 years, the record was only reconstructed and provided in March 2013. The appeal was finally heard in June 2015, when all convictions and sentences were set aside. The respondents then issued summons in June 2016 claiming damages for loss of income, injuria, pain and suffering and other damages from the three appellant Ministers totaling R420 million, based on a series of alleged wrongs from 1994-2015. The appellants raised a special plea of prescription, arguing that the claims arose more than three years before summons was issued.

• Whether the respondents' claims had prescribed in terms of section 12(3) of the Prescription Act 68 of 1969
• When prescription commenced to run in circumstances involving alleged continuing wrongful conduct
• When a creditor acquires sufficient knowledge of facts constituting a complete cause of action for purposes of section 12(3) of the Prescription Act
• Whether the NPA or NDPP should have been joined as parties (plea of non-joinder)

The appeal was upheld with costs, including costs of two counsel. The high court order was set aside and replaced with an order upholding the special plea of prescription with costs, including costs of two counsel where so employed.

In terms of section 12(3) of the Prescription Act 68 of 1969, prescription commences to run when a creditor acquires a complete cause of action, being the entire set of facts which a plaintiff must prove to succeed. A creditor is deemed to have knowledge of the facts from which a debt arises when they possess sufficient facts to institute legal proceedings based on those facts. Where a litigant has previously launched an application requiring proof of the same unlawful conduct that forms the basis of a subsequent damages claim, prescription begins to run from the date of that earlier application, as the litigant demonstrably possessed all necessary facts at that time. The three-year prescription period under section 11(d) runs from the date when the creditor has or is deemed to have knowledge of the identity of the debtor and the facts from which the debt arises.

The Court made critical observations about the quality of the particulars of claim, noting they were difficult to comprehend despite a "summary overview", did not comply with Rule 18 of the Uniform Rules of Court, were impermissibly interspersed with evidence rather than containing a concise statement of facts, and contained unclear and imprecise damages claims. The Court observed it was difficult to see how the appellants could understand the basis of the action and damages sought against each of them given these deficiencies. The Court also noted (without deciding) that there was much to be said for the appellants' contention that prescription commenced running even earlier, on 31 December 1998, when the respondents pleaded they were aware that servants of the Minister of Justice knew it was impossible to provide a proper appeal record. The Court did not decide the plea of non-joinder given its finding on prescription.

This case clarifies the application of section 12(3) of the Prescription Act 68 of 1969, particularly regarding when a creditor is deemed to have sufficient knowledge of facts constituting a complete cause of action. It demonstrates that when a litigant launches court proceedings that require proof of the same essential facts as a subsequent damages claim, prescription begins to run from the date of that earlier application. The judgment also emphasizes the importance of proper pleading in compliance with the Uniform Rules of Court, particularly Rule 18, and highlights that particulars of claim must contain concise statements of fact rather than evidence, and must clearly identify causes of action against each defendant. The case serves as a warning against broad, catch-all claims that fail to specify with precision the legal basis of claims against multiple defendants.