Zwelidumile Gcam-Gcam v Minister of Police

The plaintiff was arrested on 6 June 2009 on charges including armed robbery and murder. His bail was refused and he remained in custody. He was convicted on 20 November 2012 and sentenced to life imprisonment for murder and other concurrent sentences. After being denied leave to appeal by the trial court, he petitioned the Supreme Court of Appeal (SCA) which granted leave. On 25 March 2015, the SCA upheld his appeal and set aside all convictions and sentences. On 18 May 2015 (almost 6 years after arrest and 3 months after release), the plaintiff issued a statutory notice to the Minister in terms of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. He instituted action on 27 February 2018 (almost 9 years after arrest but within 3 years of his successful appeal) for unlawful arrest and detention. The defendant raised special pleas of: (a) prescription in terms of section 12 of the Prescription Act 68 of 1969; (b) non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002; and (c) non-joinder. The parties agreed to a stated case under Rule 33 of the Uniform Rules of Court to determine when prescription began to run.

• When does prescription commence to run in claims for unlawful arrest and detention?
• When does the debt become due for purposes of section 12 of the Prescription Act in delictual claims for unlawful arrest and detention?
• What constitutes knowledge of 'the facts from which the debt arises' in terms of section 12(3) of the Prescription Act?
• Whether a creditor must wait for acquittal or setting aside of conviction before prescription begins to run in unlawful arrest and detention claims?
• Whether the statutory notice requirement under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was complied with?

1. The special pleas raised are upheld. 2. The plaintiff's claim is dismissed with costs on scale B.

In claims for unlawful arrest and detention, prescription commences to run from the date of arrest, not from the date of acquittal or setting aside of conviction. For purposes of section 12(3) of the Prescription Act 68 of 1969, a creditor has knowledge of 'the facts from which the debt arises' when he knows of the arrest and detention and the identity of the debtor (the state). Knowledge that the conduct is wrongful or actionable is a legal conclusion, not knowledge of a fact, and therefore falls outside section 12(3). The debt becomes due when the plaintiff acquires a complete cause of action - in unlawful arrest cases, this occurs at the moment of arrest because every deprivation of liberty is prima facie wrongful. The plaintiff need only plead that he was arrested and detained; the burden shifts to the defendant to prove justification. A plaintiff does not need to wait for the outcome of criminal proceedings before prescription begins to run, as the material facts founding the debt are in place at the time of arrest.

The court noted that it did not appreciate the difference between unlawful detention and deprivation of liberty as contended in the Malgas case, as these concepts are essentially the same - both involve depriving a person of physical freedom without justification. The court observed that Malgas and Makhwelo were incorrectly decided insofar as they suggested that a debt for unlawful detention only becomes claimable after the outcome of criminal proceedings or that conviction justifies the initial deprivation of liberty retrospectively. The court emphasized the stare decisis principle, noting that as a High Court it was bound by Constitutional Court authority in Mtokonya and could not follow conflicting High Court decisions. The court also noted that the plaintiff could have instituted his civil claim while still in custody, either personally or through his attorney, and did not need to wait for his release.

This judgment clarifies the commencement date of prescription in unlawful arrest and detention claims in South Africa. It reinforces the Constitutional Court's approach in Mtokonya v Minister of Police that prescription begins to run from the date of arrest, not from the date of acquittal or release. The case emphasizes that knowledge of wrongfulness is a legal conclusion, not a factual requirement for prescription purposes. It reaffirms the fundamental constitutional principle that every deprivation of liberty is prima facie wrongful, placing the burden on the state to justify detention. The judgment also demonstrates the application of stare decisis, with the High Court declining to follow a conflicting High Court decision (Malgas) that contradicted binding Constitutional Court authority. This has important implications for plaintiffs in police brutality and unlawful detention cases, requiring them to institute claims timeously from the date of arrest rather than waiting for criminal proceedings to conclude.