In a February 2025 judgment, the high court addressed the issue of prescription in a civil claim involving the appellant, who alleged that the respondent, the Minister of Police, was liable for damages. The court had to determine whether the appellant’s claim had prescribed under the Prescription Act, 1969 and whether the service of summons on the State Attorney interrupted the running of prescription. The court ruled that the claim had not prescribed.

The appellant’s claim arose from an incident on 24 January 2019., The summons was served on the State Attorney on 11 October 2021, within the three-year prescription period. However, the respondent raised special pleas, arguing that the appellant failed to comply with the provisions of section 5(1)(b)(ii) of the Institution of Legal Proceedings Against Certain Organs of State Act, 2002 by not serving the summons on the Provincial Commissioner and that the claim had prescribed because the summons was only served on the National Commissioner on 12 April 2022, after the three-year period had lapsed.

The primary legal issues in this case were whether the appellant complied with the service requirements of the Legal Proceedings Act and whether the service of summons on the State Attorney interrupted the running of prescription.

The court examined the evidence presented by both parties, including the common cause facts that the summons was served on the State Attorney within the three-year period and that an appearance to defend and plea was filed by the State Attorney on behalf of the respondent within the same period. The appellant argued that the purpose of the Act was achieved as the respondent received notice of the proceedings and had effective legal representation.

The court found that the appellant had substantially complied with the statutory provisions of the Act. The evidence showed that the service of summons on the State Attorney within the three-year period provided the respondent with notice of the proceedings and allowed for effective legal representation. The respondent’s participation in the proceedings from the time the appearance to defend was filed indicated that the purpose of the Act was achieved. The court held that non-service on the Minister became moot when it fully participated in the proceedings from the time that an appearance to defend was filed on their behalf.

Regarding the issue of prescription, the service of summons on the State Attorney interrupted the running of prescription. The court concluded that the appellant’s claim had not prescribed, as the service on the State Attorney within the three-year period was sufficient to interrupt prescription under section 15(1) of the Prescription Act. The appeal was upheld with costs.

Extinctive prescription is not absolute and the conduct of the party sued may be acceptance of the claim despite the lapse of time. Conduct in the face of an apparently out-of-time claim must be carefully considered.

Setman v Minister of Police (Appeal) (2929/2021) [2025] ZAECMKHC 11