8:00 - 17:00

Our Opening Hours Mon. - Fri.

+254 722385723

Call Us For Free Consultation

Facebook

Twitter

 

Where summons are served without giving the statutory notice within the prescribed period, or at all, such service is nevertheless effective for the interruption of prescription if condonation was subsequently granted

MMB Advocates > Uncategorized  > Where summons are served without giving the statutory notice within the prescribed period, or at all, such service is nevertheless effective for the interruption of prescription if condonation was subsequently granted

Where summons are served without giving the statutory notice within the prescribed period, or at all, such service is nevertheless effective for the interruption of prescription if condonation was subsequently granted


Minister of Police and Others v Samuel Molokwane

[2022] ZASCA 111

Supreme Court of Appeal of South Africa

VD Merwe, Schippers and Makgoka, JJSCA; Musi and Makaula, AJJSCA

July 15, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Civil practice and procedure-pleadings- summons- omission to serve a copy of a summons to the accused- where the respondent instituted action in the High Court against the 1st to 4th appellants, in which the respondent claimed damages arising from alleged wrongful arrest and assault by the 2nd to 4th appellants- where the 2nd to 4th respondents were acting within the course and scope of their employment with the 1st appellant, and they were, respectively, served with copies of the summons- where the High Court concluded that the respondent’s omission to serve a copy of a summons issued against the 1st appellant on the state attorney, did not render the summons a nullity, despite a copy having been served on the 1st appellant, and thus dismissed two special pleas raised by the appellants based on such non-service- what was the effect of an applicant failing to serve summonsagainst a legal representative of a defendant or respondent- whether the respondent’s omission to serve a copy of a summons issued against the 1st appellant, on the state attorney, rendered the summons a nullity, despite a copy having been served on the 1st appellant – State Liability Act 20 of 1957, Section 2 (2); Uniform Rules of Court of 1959, rule 33 (4).

Brief facts

On December 2, 2015, the respondent instituted action in the High Court against the 1st, 2nd, 3rd and 4th appellants, in which the respondent claimed damages arising from alleged wrongful arrest and assault by the 2nd to 4th appellants on February 8, 2014. It was common cause that the 2nd to 4th respondents were acting within the course and scope of their employment with the 1st appellant, and they were, respectively, served with copies of the summons on December 8, 2015. There was no controversy about service on those appellants. The appeal turned on whether the respondent’s omission to serve a copy of a summons issued against the 1st appellant, on the state attorney, rendered the summons a nullity, despite a copy having been served on the 1st appellant. The Gauteng Division of the High Court concluded that the respondent’s omission to serve a copy of a summons issued against the 1st appellant, on the State Attorney, did not render the summons a nullity, despite a copy having been served on the 1st appellant, and thus dismissed two special pleas raised by the appellants based on such non-service. The High Court subsequently granted the appellants leave to appeal to the Supreme Court of Appeal of South Africa.

Issues:

  1. What was the effect of an applicant failing to serve summons against a legal representative of a defendant or respondent?
  2. Whether the respondent’s omission to serve a copy of a summons issued against the 1st appellant, on the state attorney, rendered the summons a nullity, despite a copy having been served on the 1st appellant.

Relevant provisions of law

State Liability Act 20 of 1957

Section 2 (2)- Proceedings to be taken against executive authority of department concerned

(2) The plaintiff or applicant, as the case may be, or his or her legal representative must—

(a) after any court process instituting proceedings and in which the executive authority of a department is cited as nominal defendant or respondent has been issued, serve a copy of that process on the head of the department concerned at the head office of the department; and

(b) within five days after the service of the process contemplated in paragraph (a), serve a copy of that process on the office of the State Attorney operating within the area of jurisdiction of the court from which the process was issued.

Uniform Rules of Court of 1959

Rule 33 (4)- Offer to settle

One of several defendants, as well as any third party from whom relief is claimed, may, either unconditionally or without prejudice, by way of an offer of settlement make a written offer to settle the plaintiff’s or defendant’s claim or tender to perform any act claimed by the plaintiff or defendant.

Prescription Act 68 of 1969

11- Periods of prescription of debts

(d) save where an Act of Parliament provides otherwise, three years in respect of any other debt.

Held:

  1. Service of the process commencing litigation against members of the national executive, such as the 1st appellant was governed mainly by section 2(2) of the State Liability Act 20 of 1957 (the State Liability Act). Before its amendment, and at the relevant period to the matter at hand, that section stated that in any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned had to be cited as nominal defendant or respondent. The plaintiff or applicant, as the case could be, or his or her legal representative had to, within seven days after a summons or notice instituting proceedings and in which the executive authority of a department was cited as nominal defendant had been issued, serve a copy of that summons on the state attorney.
  2. The above provisions were not complied with, as the respondent caused a copy of the summons to be served on the 1st appellant at his official place of business, on December 4, 2015. It was never served on the state attorney as prescribed in section 2(2) of the State Liability Act. There was no appearance to defend by any of the appellants. The respondent obtained default judgment on March 4, 2016 against the appellants, in terms of which liability and quantum of the claim were separated in terms of rule 33(4) of the Uniform Rules of Court (the Uniform Rules) and liability was determined in favour of the respondent against the 1st, 3rd and 4th appellants on the basis that the respondent was entitled to recover his full proven or agreed damages against the appellants. The determination of the respondent’s quantum was postponed sine die.
  3. The order granting default judgment was served on the 1st appellant on March 22, 2016. On March 26, 2018, the respondent lodged an application against the 1st appellant for the determination of quantum. That application was served on the state attorney on August 24, 2018, and on the 1st appellant at his official place of business. The respondent also served a notice of intention to amend his particulars of claim; the amended pages to the particulars of claim; and the order granting default judgment on March 4, 2016, as mentioned already. The application for the determination of quantum was set down for September 10, 2018.
  4. On August 29, 2018, the state attorney, on behalf of all the appellants, delivered a notice of intention to oppose that application. On September 6, 2018 the state attorney launched an application on behalf of the appellants to stay the application for the determination of quantum, pending the rescission of the default judgment granted on March 4, 2016. On November 25, 2019 the respondent abandoned the default judgment in terms of rule 41(2) of the Uniform Rules of 1959. On December 23, 2019 the state attorney delivered a notice of intention to defend the action on behalf of the appellants and subsequently delivered their plea to the respondent’s particulars of claim.
  5. On September 3, 2020 the appellants delivered an amended plea, in which they raised two special pleas, in the alternative. The main plea was based on non-compliance with section 2(2) of the State Liability Act, as mentioned already. It was contended that because there was no service of a copy of the summons on the state attorney, the respondent’s summons was a nullity. Alternatively, the appellants pleaded that in the event it was found that service was effected on the state attorney on August 24, 2018 (when the application for determination of quantum against the 1st appellant was served on the state attorney) the respondent’s claim had prescribed, as that occurred more than three years after the respondent’s cause of action arose on February 8, 2014.
  6. The special pleas were placed before the High Court by way of a special case and statement of facts in terms of rule 33(1) and (2) of the Uniform Rules, which set out the issues for determination. It was agreed, among other things, that if the defendants’ special pleas were dismissed, the trial was to immediately proceed in respect of the issue of the defendants’ liability.
  7. The High Court considered the purpose of section 2(2) of the State Liability Act, and reasoned that the non-service on the state attorney did not render the summons a nullity. At most, the High Court held, the non-service constituted an irregular step, which could be rectified. It further held that, in any event, the irregular step of non-service became moot when the state attorney formally placed itself on record on behalf of the appellants, exchanged pleadings with the respondent’s attorneys, and participated in a pre-trial conference. The High Court concluded that the appellants had failed todemonstrate that they were prejudiced by non-service on the state attorney. It accordingly dismissed the appellants’ special pleas.
  8. In the Supreme Court of Appeal, the submissions on behalf of the appellants were as follows. Service upon the state attorney was mandatory in terms of section 2(2) of the State Liability Act, as that provision was couched in peremptory terms by the use of the words must within 7 days serve. As the State Liability Act did not make provision for condonation for non-compliance with the service on the state attorney, a court had no power to condone such non-compliance. In the result, the special plea of non-service should have been upheld. Alternatively, the High Court should have found that the respondent’s action had been extinguished by prescription by the time summons was served on the state attorney on August 24, 2015.
  9. The approach to section 2(2) propounded on behalf of the appellants was incompatible with the approach to the interpretation of similar provisions by the courts. The strict mechanical approach of drawing formal distinctions between mandatory or peremptory provisions on the one hand and directory ones on the other, the former needing strict compliance on pain of non-validity, and the latter only substantial compliance or even noncompliance, had been discarded.
  10. There was also the injunction in section 39(2) of the Constitution of South Africa, which enjoined courts, when interpreting any legislation, to promote the spirit, purport and objects of the Bill of Rights. Thus, where a provision was reasonably capable of two interpretations, the one that better promoted the spirit, purport and objects of the Bill of Rights should be adopted. The right implicated in that case was that of access to courts, enshrined in section 34 of the Constitution. Consistent with that injunction, the interpretation of section 2(2) of the State Liability Act had to be one which promoted that right, by considering the underlying purpose of the section, rather than merely its text. That purposive approach was far more consistent with the constitutional values, than reading the section narrowly and strictly, as preferred by the appellants.
  11. The purpose of section 2(2) of the State Liability Act, especially the requirement that a summons had to be served on the state attorney within seven days after it was issued, was clearly to ensure that the relevant executive authority was afforded effective legal representation in the matter by the state attorney. If the state attorney provided such legal representation, in any manner whatsoever, despite it not having been served by the sheriff within seven days of the process commencing such proceedings, the purpose would have been served. That would also be the position where, there was no service on the state attorney at all. In other words, it was not so much about how the state attorney obtained the knowledge of the process commencing proceedings, as the representation of the party in the legal proceedings itself.
  12. A copy of the summons was served on the 1st appellant. In the midst of legal and technical arguments advanced on behalf of the 1st appellant, there was deafening silence on the 1st appellant’s part as to what he did with the summons after receiving it. The critical point, however was that the state attorney effectively represented the 1st appellant in the action, by entering appearance to defend the action if de novo, by filing a plea and by being able to be ready for trial. Thus, the purpose of the section had been achieved. The 1st appellant’s contention that, despite a copy of the summons having been served on him, the summons should nevertheless be declared a nullity solely because it had not been served on the state attorney, was simply untenable.
  13. One of the overarching considerations in matters of that nature was prejudice. The court was unable to discern any prejudice suffered by the 1st appellant as a result of non-service of a copy of the summons on the state attorney. The 1st appellant had not pointed to any. He was able to serve a plea in which he responded to the respondent’s allegations in the combined summons. The absence of prejudice was also evident from the fact that in the statement containing the agreed facts, the 1st appellant asserted none. Instead, the parties agreed that in the event the special pleas were dismissed, the trial would proceed immediately on the issue of liability. That was the clearest indication that the 1st appellant suffered no prejudice.
  14. The respondent’s condonation application for the late service of his statutory notice in terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (Legal Proceedings Act), was granted. In terms of section 3(4)(b)(iii) of the Legal Proceedings Act, the court granting such application had to be satisfied, among others, that the organ of state was not unreasonably prejudicedby the failure which necessitated the condonation application. The application for condonation was served on the state attorney, who at that stage, was already on record on behalf of all the appellants. If ever there was prejudice, one would have expected the 1st appellant to place the necessary facts before the court to establish it. Instead, the 1st appellant decided not to oppose the application. It had to therefore be accepted that no prejudice occurred to the 1st appellant.
  15. The appellants contended that service on the state attorney had occurred more than three years after the respondent’s cause of action arose. In terms of section 11(d) of the Prescription Act 68 of 1969 (the Prescription Act), the respondent’s claim would have prescribed after three years, i.e. on February 7, 2017. Section 15 of the Prescription Act provided that the running of prescription should be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. There was no dispute that the 1st appellant was the debtor as envisaged in section 15(1) of the Prescription Act.
  16. The respondent’s condonation application for the late service of his statutory notice in terms of section 3 of the Legal Proceedings Act, was granted. Similar to the issue of prejudice as discussed above, in terms of section 3(4)(b)(i) of the Legal Proceedings Act, the court granting an application for condonation had to be satisfied, among others, that the debt had not been extinguished by prescription. To the extent the High Court had granted the condonation, it, of necessity, found that the respondent’s claim had not been extinguished by prescription. The issue was thus res judicata, and no longer open to the appellants to assert it.
  17. The plea of prescription in any event had no merit. It was correct that when that section was read with section 2 of the Legal Proceedings Act, service on the State Attorney, instead of the 1st appellant, would have been effective service to interrupt prescription. However, that did not mean that the state attorney replaced the 1st appellant as the debtor. Viewed in that light, service on the 1st appellant was effective for the purpose of interrupting prescription.
  18. The fact that the summons had not been served within the prescripts of section 2(2) of the State Liability Act,did not affect service on the 1st appellant. For purposes of interrupting prescription, there was service of a process on the 1st appellant. The court was fortified that where summons were served without giving the statutory notice in terms of section 3 of the Legal Proceedings Act within the prescribed period, or at all, such service was nevertheless effective for the interruption of prescription if condonation was subsequently granted. Thus the High Court was correct to dismiss the special pleas.

Appeal dismissed with costs.

Relevance to Kenyan jurisprudence

Pursuant to article 47 of the Constitution of Kenya 2010, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and, if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

The Civil Procedure Act of 1924 [Rev 2020] notes in section 20 that where a suit has been duly instituted the defendant shall be served in manner prescribed to enter an appearance and answer the claim. Section 21 further adduces that:

(1) Any document which is required to be served in connexion with a suit may be sent for service in another county to a court having jurisdiction in that county.

(2) The court to which such document is sent shall, upon receipt thereof, proceed as if it had been issued by such court and shall then return the document to the court of issue together with the record, if any, of its proceedings with regard thereto.

Section 23 crowns this by emphasizing that sections 21 and 22 shall apply to summonses to give evidence or to produce documents or other material objects. Section 52(1) of the National Police Service Act grants a police officer power to summon any person believed to have information which can assist in investigation to appear before the police in a police station.

In Brenda Karanja v Mweki Dominic [2021] eKLR, Nzei and Co. Advocates for the appellant submitted that it was not the indolence of the appellant in tracing the respondent that led to the expiry of the summons. Learned counsel submitted that the court has jurisdiction to grant the orders sought under section 3A of the Civil Procedure Act in the interest of justice and for it to be not only to be done but must be seen to be done. The court held that the appellant and her counsel slept on their rights and that the trial court was right in rejecting the appellant’s application for extension of summons since equity comes to the aid of the vigilant and not the indolent.

Furthermore, in Zakaria Somi Nganga v Kenya Commercial Bank Limited & 3 Others [2008] eKLR, the court held that that: –

The summons to enter appearance in this case expired 12 months from the date of issue…it was not possible to revive them. That therefore means that the Plaintiff’s suit lapsed for reason of non-compliance of Order V Rule 1 of the Civil Procedure Rules…

Also, in the case of Julius Njoroge Muira v Harrison Kiambuthi Mburu [2011] eKLR, the court held that:

…I shall thus without hesitation find that the Original Summons is not in existence and all the efforts to revive the same by reissuance were null and void. The Original Summons which has lost its life cannot be resurrected… If an act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad…And every proceeding which it is founded on it is also bad and incurably bad. It will collapse. The non-compliance of the process of renewal is a fundamental defect which cannot be cured by inherent powers.

Moreover, in Moses Kimaiyo Kipsang v Geoffrey Kiprotich Kirui & 2 others [2022] eKLR, the plaintiff noted that the defendants were served with all the pleadings summons on 4/12/2019. According to him, they were received by the defendants. He annexed an affidavit of service of the documents and copies of the signed documents by the defendant acknowledging receipt, marked as MKK2 and MKK3 respectively. Dismissing the appeal, the court held that mere words of a strong or formidable defence without demonstrating what that strength or formidability is, are mere void words which cannot amount to a defence raising triable issues as the law provides.

This case is therefore important to the Kenyan jurisprudence as it sheds light regarding the issuance of summons by holding that where summons is served without giving the statutory notice within the prescribed period, or at all, such service is nevertheless effective for the interruption of prescription if condonation was subsequently granted.

 





Source link

No Comments

Leave a Comment