The Johannesburg High Court has dealt a major blow to two men seeking millions of rands in damages for alleged unlawful arrest and assault, ruling that their claim against the Ekurhuleni metropolitan municipality has prescribed and cannot proceed.
In a judgment handed down on December 15, Acting Judge Kekana dismissed an application by Tankiso Mosebi and Mchunu Kwazi Mfanile for condonation after they failed to comply with strict legal timeframes required when suing an organ of state.
The applicants claimed they were unlawfully arrested and assaulted on July 11, 2016, and then kept in custody for nine months.
They had alleged that the arresting officers, initially believed to be members of the SA Police Service, were in fact metro police officers employed by Ekurhuleni.
Summons only instituted in July 2019
However, the court discovered that the men were aware of their arrest by metro police as early as October 2016.
When they laid a complaint, they received the information, but they did not act on it within the prescribed times.
Despite this knowledge, the applicants only instituted summons in July 2019, and only against the minister of police and the director of public prosecutions, omitting the City of Ekurhuleni.
It was only years later that they attempted to include the municipality through a joinder application and a late statutory notice.
Kekana criticised the delay, saying the applicants had three years to verify the arresting officers’ identities and act but did not.
“The applicants were very careless in how they dealt with the shared information,” the judge noted, adding that ignorance could not be used as an excuse when they were already legally represented.
Conditions for condonation not met
The court further rejected the argument that issuing summonses against other parties interrupted a prescription against the municipality, stressing that no summons was ever served on Ekurhuleni.
The judge decided that the applicants did not meet the three necessary conditions for condonation under the Institution of Legal Proceedings Against Certain Organs of State Act: the claim was too old, they did not have a good reason for the delay, and they were unlikely to win.
“Once a debt has prescribed, the debtor acquires a complete and absolute defence,” the judgment reads, concluding that granting condonation would be “irrational and contrary to the administration of justice”.
The application for condonation was dismissed, and the applicants were ordered to pay the municipality’s legal costs on scale B.
