Prescription in claims for unlawful arrest; from when is it calculated?

unlawful arrest
01 Feb 2024

South Africans frequently claim from the Minister of Police for unlawful arrest and detention. Said claims require that the Minister of Police be informed, in the prescribed form, of the claimant’s intention to institute legal proceedings against the Minister of Police, as is required by the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“the Act”). This notice can be in the form of a letter.

In terms of Section 3(2) thereof, the notice must be served “within six months of which the debt became due”.  Furthermore, as with any other claims for an alleged debt, the claim also prescribes in terms of the Prescription Act 68 of 1969. In terms of Section 11 of the Prescription Act, read with Section 12(2), a claimant must serve summons within three years of having acquired knowledge of the debt being due. Therefore, if a person institutes a claim for unlawful arrest and detention, he must first deliver a notice, which can be in the form of a letter, within six months of the debt becoming due, and he must serve summons within three years of knowing that such debt is due.

The prescription related to these claims can be stressful to clients and legal practitioners alike, especially in instances where delays occur, whether due to failure of the Sheriff to affect service in a timely manner, or the like. Should a claim be lodged where the letter in terms of Act 40 was filed out of time, the State Attorney will certainly raise the special plea of prescription.

While these factors all require litigants to act quickly, there is one other factor which seemingly sets claims of unlawful arrest and detention apart from most other claims against certain organs of state: the facts that give rise to a claim may take place over a relatively long period of time, sometimes close to, if not longer than, six months. Naturally, in many cases of a person being arrested, that person would be detained for a certain duration of time. This however begs the question, from what date does the statutory six months period run? Is it from the date of arrest, or the date of release?

In a major portion of the claims where the claimant is arrested, the claim will be for both unlawful arrest and for unlawful detention. While the quantification for the alleged unlawful arrest will be confined to the arresting process, which will generally therefore only be for a brief period, one of the main determining factors for the quantification of unlawful detention will be the time period of detention. It is worth noting that, in terms of the once and for all rule, a claimant may only claim once against a defendant for damages caused by a certain event. Furthermore, it would be unreasonable to expect a claimant to inform the Minister of Police within six months of arrest of his intention to lodge a claim and, if his period of detention exceeds six months, then serve another notice on the Minister of Police, which will certainly amount to a barrage of documentation and, probably, excessive legal costs. As mentioned above, this period of detention will in many cases exceed six months. It is then seemingly unreasonable to expect a claimant to notify the Minister of Police of his intention to lodge a claim within six months.

The question of when prescription begins in matters of unlawful arrest and detention was dealt with by the Court in the recent matter of Mashaba v Minister of Police (54940/2012) [2023] ZAGPPHC 2023 (18 December 2023). In this matter, the plaintiff was arrested on 22 February 2008. His bail application was unsuccessful, and he was detained until the date of his acquittal, being 18 April 2011. He remained in custody for that entire term. The plaintiff consulted with his attorney on 22 May 2012 and summons was served on the Minister of Police on 16 October 2012.

While the plaintiff was granted condonation for the late notice in terms of Act 40, the Minister of Police did raise the special plea for prescription, alleging that summons was served out of time. The Minister of Police contended that prescription ran from the date of arrest, which would mean that summons was served after more than three years, and the claim had therefore expired. The claimant, on the other hand, argued that prescription only ran from the date that he was released from custody, which would mean that summons was served in time and the claim had not prescribed.

The Court reasoned that, where a claim had only been for unlawful arrest, or where the claimant was released for a certain period and detained later, the cause of action would be completed upon arrest. However, in matters such as the one that was before court, where there were unlawful arrest and continuous unlawful detention, therefore, in cases of a “continuing wrong”, then prescription only starts to run from the date of release from custody. Accordingly, the Court held that the claim had not prescribed, and the Minister of Police’s special plea was dismissed.

Complying with the statutory requirements in terms of claims for unlawful arrest and detention before the claim prescribes can be strenuous. However, claimants can find some reassurance.  In cases where the unlawful arrest and unlawful detention are continuous, then prescription would only run from the date of release from custody. An example of this would be when a claimant is unlawfully arrested, refused bail, and unlawfully detained. It should however be noted that this would, by implication, not be the case where the claimant was temporarily released from custody after the arrest. Also, in cases where the claimant was unlawfully arrested and thereafter continuously detained, but where the detention itself was not unlawful, then prescription should also run from the date of arrest, not release from custody. Similarly, in cases where any other claim arises against the Minister of Police or Minister of Correctional Services due to an act that transpired and was completed during detention, such as where the claimant was assaulted in prison and the prison guards failed to fulfil their legal duty to protect the claimant, then prescription should start running from the wrongful act itself, and also not from the date of release from custody.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Philip Venter

Philip Venter is an articulate and driven litigator and has been an admitted attorney since September 2021. He is passionate about the law and specialises in Magistrate’s Court litigation, commercial... Read more about Philip Venter


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