Case summary written by Megan Brook and checked by Kerry Theunissen
BACKGROUND AND SUMMARY:
Linda Holden (the “Appellant”) was a counselling psychologist registered with the Health Professions Council of South Africa (the “HPCSA”). Assmang Limited (the “Respondent”) referred its employees to the Appellant. On 30 June 2008, the Appellant was reported to the HPCSA by the Respondent. On 13 November 2009, the HPCSA informed the Appellant’s senior counsel that the committee had accepted the Appellant’s explanation and resolved not to take any further action against the Appellant.
Court a quo
On 6 August 2012, the Appellant instituted an action in the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (the “Court a quo”), for damages against the Respondent based on malicious proceedings.
The Respondent raised, inter alia, a special plea of prescription. The special plea was dealt with as a separated issue in terms of Rule 33(4) of the Uniform Rules of Court.
In dismissing the special plea with costs, the Court a quo reasoned that the Appellant had pleaded a case premised on malicious prosecution and that, consequently, the prescriptive period would have started to run only once the Appellant was notified by the HPCSA that no further action would be taken against her.
Full Bench of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg
With leave of the Court a quo, the Respondent successfully appealed to the full bench of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (the “Appeal Court”). The order of the Court a quo was setaside and replaced with one upholding the special plea with costs.
In arriving at its conclusion, the Appeal Court placed reliance on the case of Kruger v National Director of Public Prosecutions wherein it was held that in order to prove malicious prosecution, the plaintiff needed to establish only (a) a lack of reasonable and probable cause and (b) the intent to injure (animus injuriandi). Further, only the creditor needs to have knowledge for prescription to start running in terms of section 12(3) of the Prescription Act No. 68 of 1969 (the “Prescription Act”). A plaintiff does not need to know the further facts that establish the absence of reasonable cause and intent to injure.
Supreme Court of Appeal
The matter was appealed to the Supreme Court of Appeal (the “SCA”).
The Appellant contended that cause of action only arose and prescription only started running after the HPCSA notified her that the Respondent’s complaint against her had been dismissed.
Relying on Gregory v Portsmouth City Council, the Respondent contended that the strict principles of malicious prosecution and the requirement that the prosecution must have failed do not apply as the HSPCA is a disciplinary body and malicious prosecution does not extend to disciplinary proceedings.
The SCA reiterated that it is settled in law that prescription begins to run as soon as the debt is due and the creditor knows the identity of the debtor and the facts giving rise to the debt. A creditor who could have acquired the knowledge by exercising reasonable care is deemed to have such knowledge. It has authoritatively been held that knowledge of legal conclusions is not required before prescription begins to run.
In order to succeed on the merits with a claim for malicious prosecution, a claimant must allege and prove:
a. that the defendant set the law in motion (instigated or instituted the proceedings);
b. that the defendant acted without reasonable and probable cause;
c. that the defendant acted with malice or animo iniuriandi; and
d. that the prosecution has failed.
The importance of the fourth requirement lies in the fact that the claim can only arise if the proceedings were terminated in the Appellant’s favour. That is so because a claim for malicious proceedings cannot anticipate the outcome of proceedings yet to be finalised. To hold otherwise would permit recognition of a claim when the proceedings may yet be decided against the plaintiff.
Having regard to the Respondent’s argument that the HPCSA is a disciplinary body, the SCA held there is no discernible distinction between pending criminal proceedings and proceedings before statutorily created professional tribunals. The HPCSA is such a tribunal. The cause of action applies to both civil and criminal proceedings and not only the latter. The HPCSA is an important tribunal and its decision can leave far-reaching consequences. Further, statutory created tribunals, such as the HPCSA, employ the formal machinery of a criminal prosecution with sanctions that are punitive in nature and is closely analogous to criminal prosecution.
The SCA stipulated that a debt is due, owing and payable within the meaning of section 12(1) of the Prescription Act when the creditor acquires a complete cause of action for the recovery of the debt. What this means is that the entire set of facts which the creditor must prove in order to succeed with his/her claim against the debtor must be in place. In other words, when everything has happened which would have entitled the creditor to institute action and to pursue his/her claim.
The SCA concluded that the Appellant’s cause of action only arose and prescription only started to run when the HPCSA notified the Appellant that the Respondent’s complaint against her had been dismissed. It was only then that the Appellant would have been able to establish the fourth and final requirement for an action for malicious prosecution. It follows that, as at the date of the summons, the claim or debt had not prescribed.
Accordingly, the appeal was upheld with costs.
Prescription begins to run as soon as the debt is due and the creditor knows the identity of the debtor and the facts giving rise to the debt. A result favourable to the plaintiff remains a requirement for the completion of the cause of action in a claim based on malicious proceedings.
 2019 (6) BCLR 703 (CC)
 (2000) 1 AC 419
 section 12 of the Prescription Act No. 68 of 1969; Mtokonyana v Minister of Police  ZACC 33 paragraphs 45 – 51
 Mtokonyana v Minister of Police  ZACC 33 paragraphs 45 – 51
 Minister of Justice and Constitutional Development and Others v Moleko  ZASCA 43
 Els v Minister of Law and Order 1993m(1) SA 12 (CC)
 Beckernstrater v Rottcher 1995 (1) SA 123 (A) at 135A – B
 Mtokonyana v Minister of Police  ZACC 33 paragraph 16