Case CCT336/17 
[2019] ZACC 13


Judgement Date:09 April 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 9 April 2019 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against the order of the High Court of South Africa, Gauteng Division, Pretoria (High Court).  The applicant is Mr Arrie Willem Kruger, and the respondent is the National Director of Public Prosecutions (NDPP), who was cited as a respondent on the basis that there was vicarious liability for the conduct of the public prosecutor who acted in the criminal proceedings that were brought against the applicant in the Randburg Magistrates’ Court.

On 6 October 2009 Mr Kruger appeared in the Randburg Magistrates’ Court for the first time and was subsequently incarcerated and remained in police custody for seven days.  On 13 October 2009 all charges against him were withdrawn.  In August 2012 Mr Kruger and his attorney succeeded in obtaining the police docket, which revealed that on the day on which Mr Kruger appeared in court for the first time, the investigating officer had told the public prosecutor that bail should be granted because Mr Kruger’s address had been confirmed, he was not a flight risk, there was nothing that he could do to jeopardise the investigation and the complaint was a civil matter.  However, the public prosecutor opposed bail, with the result that Mr Kruger was kept in police custody for seven days.

In 2013 Mr Kruger instituted a claim in the High Court against the NDPP for damages on the basis of malicious prosecution for being denied bail and kept in police custody despite the fact that the investigating officer had told the public prosecutor that the matter was a civil matter and there was to be no further investigation.  The High Court upheld a special plea of prescription raised by the NDPP.  It held that the facts known to Mr Kruger and his attorney on 13 October 2009, when the charges were withdrawn, were enough for him to institute a claim against the NDPP but that, since he had failed to institute the claim within three years from that date, his claim had prescribed.  Mr Kruger applied for leave to appeal to the Full Court of the High Court but that application was dismissed.  An application for leave to appeal to the Supreme Court of Appeal was also dismissed.  The Constitutional Court was called upon to decide whether the High Court was correct in concluding that it was enough for the applicant to know that the charges against him had been withdrawn in order for him to have been able to institute a claim based on malicious prosecution.

The majority judgment, written by Froneman J and concurred in by Cameron J, Ledwaba AJ, Madlanga J, Mhlantla J and Nicholls AJ, held that there was no constitutional or legal issue to ground the Constitutional Court’s jurisdiction as this matter concerned purely a factual inquiry.  Froneman J held that in order for Mr Kruger to succeed with his claim for malicious prosecution he needed only to establish (a) lack of reasonable and probable cause and (b) intention to injure.  Froneman J further held that Mr Kruger had all the required facts for prescription to commence running before learning of the police docket contents.  Though the police docket strengthened Mr Kruger’s case, Mr Kruger already had knowledge of the essential facts from which the debt arose.  Hence, prescription started running in 2009.  In the result, the majority of the Constitutional Court dismissed the application with costs.

The minority judgment, written by Zondo DCJ, concurred in by Mogoeng CJ, Jafta J and Khampepe J held that the person raising prescription bears the onus of proving that the claimant had knowledge of all the facts from which the claim arose before it can be said that prescription could commence to run.  Zondo DCJ was of the view that the police docket played a pivotal role in determining whether Mr Kruger had sufficient knowledge as required in terms of section 12(3) of the Prescription Act.  Zondo DCJ would have set aside the order of the High Court and replaced it with one dismissing the special plea with costs. 

In a separate concurring judgment in support of the reasoning and outcome of the minority judgment, Jafta J held that because prescription was raised as a defence in a special plea, the onus was on the NDPP and not Mr Kruger to show that the requirements of section 12(3) of the Prescription Act were met.  Jafta J held further that the knowledge of the NDPP as a co-debtor was material and constituted the facts which Mr Kruger ought to have known for prescription to commence running.  Agreeing with the minority that this matter raises a constitutional issue and this Court has jurisdiction, Jafta J would have allowed the appeal to succeed.

In a separate judgment, Theron J agreed to the dismissal of the application for leave to appeal for reasons different to those of the majority judgment.  Theron J held that Mr Kruger did not make his case out on the papers.  Nonetheless, Theron J would have preferred for the matter to have been set down for an oral hearing and for the record to have been called for.  This is because, in her judgment, the issues of jurisdiction and whether Mr Kruger had sufficient knowledge for prescription to start running were complex.         

The Full judgment  here