Minister of Safety and Security and Others v Samukuta (SA 34/2024) [2025] NASC 7 (3 April 2025)

# Minister of Safety and Security and Others v Samukuta (SA 34/2024) [2025] NASC 7 (3 April 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/7/eng@2025-04-03) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/7/eng@2025-04-03) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/7/eng@2025-04-03) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/7/eng@2025-04-03) [ __](mailto:?subject=Take a look at this document from NamibLII: Minister of Safety and Security and Others …&body=https://namiblii.org/akn/na/judgment/nasc/2025/7/eng@2025-04-03) [ Download DOCX (68.6 KB) ](/akn/na/judgment/nasc/2025/7/eng@2025-04-03/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/7/eng@2025-04-03/source.pdf) Report a problem __ * Share * [ Download DOCX (68.6 KB) ](/akn/na/judgment/nasc/2025/7/eng@2025-04-03/source) * [Download PDF](/akn/na/judgment/nasc/2025/7/eng@2025-04-03/source.pdf) * * * * * Report a problem __ ##### Minister of Safety and Security and Others v Samukuta (SA 34/2024) [2025] NASC 7 (3 April 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Minister of Safety and Security and Others v Samukuta (SA 34/2024) [2025] NASC 7 (3 April 2025) Copy Media Neutral Citation [2025] NASC 7 Copy Hearing date 14 March 2025 Court [Supreme Court](/judgments/NASC/) Case number SA 34/2024 Judges [Mainga JA](/judgments/all/?judges=Mainga%20JA), [Angula JA](/judgments/all/?judges=Angula%20JA), [Smuts AJA](/judgments/all/?judges=Smuts%20AJA) Judgment date 3 April 2025 Language English * * * Skip to document content **REPORTABLE** CASE NO: SA 34/2024 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **MINISTER OF SAFETY AND SECURITY** | **First Appellant** ---|--- **COMMISSIONER GENERAL OF THE NAMIBIAN CORRECTIONAL SERVICE** | **Second Appellant** **SENIOR SUPERINTENDENT OF THE NAMIBIAN CORRECTIONAL SERVICE: H.N. UUSIKU** | **Third Appellant** | and | | **IMMANUEL TJIKUNGA SAMUKUTA** | **Respondent** **Coram:** MAINGA JA, ANGULA JA and SMUTS AJA **Heard: 14 March 2025** **Delivered: 3 April 2025** **Summary:** This is an appeal, with leave of the court _a quo_ , against the whole judgment and order of the court _a quo_ delivered on 4 December 2023, where that court dismissed two special pleas raised by the appellants in a defamation claim instituted by the respondent, an inmate at the Windhoek Correctional Facility. The defamation claim is based on a statement published by the third appellant in a behavioural progress report concerning the respondent dated 25 September 2020. The appellants raised two special pleas against the respondent’s claim. The first special plea was that the respondent had failed to serve on the appellants the required statutory notice at least one month prior to instituting the proceedings; and that s 133(4) of the Correctional Service [Act 9 of 2012](/akn/na/act/2012/9) (the Act) is compulsory and does not envisage a substantial compliance. The second special plea is that the claim had prescribed under s 133(3) of the Act in that it was not filed within six months of the cause of action arising. In replication, the respondent pleaded that he personally served the notice on 25 April 2022 at the Office of the Government Attorney and that a signed receipt was subsequently filed on the e-justice system, asserting substantial compliance with s 133(4). He also contended that the prescription period for inmates who have not been released is 12 months and not six months and that he was unaware of the identity of the author of the defamatory statement until 10 February 2022. As a result, the cause of action arose on 10 February 2022. The court _a quo,_ without hearing evidence dismissed the special pleas, holding that the respondent had filed the action just five days short of the at least one month period requirement under s 133(3) and therefore found that there had been substantial compliance. The court further found that no prejudice had been suffered by the appellants. Regarding the special plea of prescription, the court concluded that the interpretation suggesting prescription runs regardless of the inmate’s knowledge of the wrongdoer's identity would result in absurdity, and such a result could never have been the legislature's intent. Consequently, the special plea of prescription was similarly dismissed. At issue on appeal is a question of whether the court _a quo_ could effectively decide the two special pleas on papers without hearing evidence. _Held that_ , the non-compliance with the statutory provisions, whether peremptory or otherwise, could not be presumed. It had to be explained through evidence. The court _a quo_ ’ _s_ finding that there had been substantial compliance with s 133(4) was not grounded on facts and is thus unsustainable. _Held that,_ the court’s finding that no prejudice was caused to the appellants by the premature institution of the proceedings is a factual finding that required a factual inquiry and was thus not competent without the court hearing evidence. _Held further that_ , the court _a quo_ erred in deciding to determine the special plea of prescription without the benefit of evidence. Consequently, the appeal was not allowed. In the exercise of its power in terms of s 19 of the Supreme Court [Act 15 of 1990](/akn/na/act/1990/15), the matter was remitted to the presiding judge _a quo_ with directions to hear evidence in respect of both special pleas. No order as to costs was made. ____________________________________________________________________ **APPEAL JUDGMENT** ____________________________________________________________________ ANGULA JA (MAINGA JA and SMUTS AJA concurring): _Introduction_ 1. This is an appeal, with leave of the court _a quo_ , against the whole judgment and order of the court _a quo_ delivered on 4 December 2023, dismissing two special pleas raised by the appellants. The appeal raises a question of whether the court _a quo_ could effectively decide the two special pleas on papers without hearing evidence. _Background_ 2. The respondent is an inmate at the Windhoek Correctional Facility. He instituted a defamation claim against the appellants based on an alleged defamatory statement (the statement) published by the third appellant in a behavioral progress report (the report) concerning the respondent dated 25 September 2020. 3. In his amended particulars of claim, the respondent alleged that before instituting the action, he delivered a notice in terms of s 133(4) of the Correctional Service [Act 9 of 2012](/akn/na/act/2012/9) (the Act) at the Office of the Government Attorney on 25 April 2022. 4. The respondent further alleged that the report, which contained the defamatory statement, was made available to him on 10 February 2022 by his new case management officer. He thus alleged that his cause of action was completed on that date. Thereafter, he instituted his action on 20 May 2022 against the appellants. 5. The appellants raised two special pleas against the respondent’s claim. In their first special plea, they pleaded that the respondent did not serve the statutory notice on the appellants at least one month before the institution of the proceedings in compliance with s 133(4) of the Act; and that s 133(4) is compulsory and does not envisage a substantial compliance. The second special plea alleged that the respondent’s claim had prescribed in terms of s 133(3) of the Act in that it was not brought within six months from the date the cause of action arose. 6. The respondent filed a replication to the appellants’ plea. In respect of the appellants’ denial that no statutory notice was served before the action was instituted, he reiterated that he had personally served the notice on 25 April 2022 at the Office of the Government Attorney and that a signed receipt copy was uploaded on the e-justice system when he instituted the proceedings. He further pleaded that the statutory notice had substantially complied with the provisions of s 133(4). 7. In response to the special plea of prescription, the respondent pleaded over and elaborated on his amended particulars of claim that the prescription of a claim for an inmate who has yet not been released is, in terms of s 133(3) 12 months and not six months as alleged by the appellants. The respondent further stressed that before 10 February 2022, he was unaware of who made the offending statement and did not have knowledge of all the essential elements of the delictual wrong, which would have enabled him to institute the action. _Proceedings before the court_ __a quo__ 8. The transcribed record of the proceedings of the court _a quo_ of 19 September 2023, reflects the following exchange between the court and counsel for the parties: ‘. . . Quickfall: My client this morning told me that he wants to place an explanation before Court on those two legal arguments. I informed him that him that, what I informed him of his rights I said technically it is a special plea it is not an exception. You technically do not have a right if you want to say something he feels he wants to climb in the witness box and say why he did (indistinct) those things at a certain point of time. Court: I am not going to allow it. Let me ask the parties this, is this one of those cases where that parties build a view that this determination can only be determined when evidence is there? Mr Ncube: My Lady that is basically that is not what if submissions would suffice that was basically what I told my Learned Colleague as well as that we will have to make submissions. I was actually prepared to cite case law from the Supreme Court pertaining to why this court should not entertain, well I am indebted that the court has already made a decision, yes My Lady. Court: At this point in time first of all, I am grateful that you advised their client there is not much more that you can do with that this is only a special plea which means that I will only be dealing with submissions. I am not going to permit any evidence to be led at this stage. Any evidence is going to be led, then it has to be done by filing of witness etc. And we have only been appointed for the purpose of the special plea, we have not been appointed for the purpose of a trial.’ 9. Thereafter, the court proceeded to hear the parties’ submissions and delivered its ruling on 4 December 2023. 10. It was common cause that the respondent instituted the action five days prior to the expiry of the period of ‘at least one month’ calculated from the date of delivery as prescribed by s 133(4). The court found that there had been substantial compliance with s 133(4). It further found that no prejudice had been caused to the appellants. This special plea was accordingly dismissed. 11. The court then dealt with the special plea of prescription based on non-compliance with s 133(3). The section provides that no civil action against the State or any person shall be instituted for anything done or omitted in pursuance of any provision of the Act after the expiration of six months immediately succeeding the act or omission, or in the case of an offender, after the expiry of six months immediately succeeding the date of his or her release from a correctional facility, but in no case may any such action be instituted after the expiration of one year from the date of the act or omission in question. 12. It was also common cause that since the respondent is still incarcerated, the prescription period applicable to his claim was one year. The dispute was from what date the calculation should commence. The applicants contended that the calculation should commence from the date of the act or omission in question. In other words, from the date the defamatory statement was made in the report. The respondent contended that the calculation is to commence from the date he became aware of the identity of the author of the defamatory statement. 13. The court reasoned that to interpret s 133(4) that prescription in respect of an inmate’s delictual claim commences to run whether or not an inmate has knowledge of the identity of the maker of a defamatory statement (ie the wrongdoer) or where the inmate’s cause of action has not been completed, would lead to absurdity and could never have been the intention of the Legislature. The special plea of prescription was similarly dismissed. _Grounds of appeal_ 14. The appellants’ first ground of appeal against the court’s finding that the respondent’s notice in terms of s 133(4) substantially complied with the said section is that the court erred in concluding that the proceedings, which were instituted 25 days after the date of service of the notice, as opposed to the prescribed period of at least one month before the institution of the court proceedings, constituted substantial compliance. 15. The second ground of appeal is that the court erred in considering the lack of prejudice on the appellants’ part as a ground to condone non-compliance with s 133(4). 16. The third ground of appeal is that the court _a quo_ erred in finding that the respondent’s cause of action arose when the respondent gained knowledge of the author of the defamatory statement and only then that his cause of action was completed, thus constituting the date from which to calculate when his cause of action arose. The court erred in this regard because s 133(3) provides for a one-year prescription period calculated from the date when the act or omission took place and not when a claimant had gained knowledge of the act or omission. 17. The fourth ground of appeal is that the court erred in ‘condoning the prescription period’ in the circumstances where the respondent did not lead evidence as to when he, for the first time, had gained knowledge of the alleged defamatory statement. _The parties’ submissions on appeal_ _Submissions on behalf of the appellants_ 18. Mr Ncube, who appeared on behalf of the appellants, submitted before us, concerning the court _a quo’_ s finding that there had been substantial compliance with the provisions of s 133(4) without considering that the period prescribed by that section serves a legitimate governmental purpose in preventing the institution of court proceedings before the expiry of at least one month after the service of the notice in terms of the said section. 19. Counsel further submitted that the court erred in finding that there was no prejudice suffered by the appellants as a basis to condone the respondent’s non-compliance with the peremptory time period prescribed by s 133(4). 20. As regards the court’s finding on the prescription period of the respondent’s claim, Mr Ncube argued, _inter alia_ , that the court erred in condoning the non-compliance with the prescription period in circumstances where the respondent did not lead evidence to prove when he gained knowledge of the alleged defamatory statement. _Submissions on behalf of the respondent_ 21. Ms Mondo argued the respondent’s case. Counsel raised what she termed a ‘preliminary issue’. She submitted in this connection that the court _a quo_ adopted an incorrect procedure in adjudicating the special pleas because there was a ‘dispute of facts on the pleadings’, which ought to have been resolved through evidence. I suppose that counsel meant to say that there were conflicting allegations on the pleadings. 22. Counsel pointed out that the special pleas were incorrectly dealt with as if they were exceptions. Further, the parties did not agree to submit a stated case to the court for adjudication. 23. It was further submitted that, given the respondent’s allegation of substantial compliance with s 133(4), it was incumbent upon the court to hear evidence to explain why the proceedings were instituted 25 days after the delivery of the notice as opposed to at least one month after the delivery of the notice as stipulated by the section. 24. Counsel, therefore, submitted that the matter should be referred back to the court _a quo_ to consider the special pleas after it has heard the evidence. 25. In the view I take concerning Ms Mondo’s preliminary submission, it became unnecessary to deal with her substantive submissions. _Issue for decision_ 26. The crisp issue for determination in this appeal is whether the court _a quo_ could effectively determine the special pleas without the benefit of evidence. _Discussion_ 27. A court’s approach to the determination of a special plea as opposed to an exception is well - established. A special plea is usually to be determined by introducing fresh facts from outside the circumference of the pleadings, and those facts have to be established by evidence in the usual way. This includes a special plea of prescription even though it appears _ex-facie_ the plaintiff’s particulars of claim because the plaintiff may replicate to the special plea by claiming that prescription had been interrupted. The excipient, on the other hand, is confined to the four corners of the pleadings. The defence raised on exception must appear from the pleading itself; the excipient must accept as correct the factual allegations contained in it and may not introduce any fresh matter.1 28. With those principles in mind, the question posed earlier is to be considered. 29. I will first consider whether the court _a quo_ could effectively and validly determine, without the benefit of evidence, that the respondent had substantially complied with the provisions of s 133(4) and that the appellants did not suffer prejudice. In my view, the court could not. All that the court did, was reach a factual or legal conclusion that was not supported by evidence. It was incumbent upon the parties to lead evidence to support their allegations contained in pleadings. 30. Ms Mondo is correct in that both parties ought to have led evidence. In respect of the appellants, they were required to lead evidence to justify what governmental purpose was infringed upon by the respondent’s premature institution of the proceedings. It was also not for the court to assume, without evidence from the appellants, that they had not suffered prejudice. 31. Regarding the respondent, it was incumbent upon him to lead evidence to justify his non-compliance with the time period provided in s 133(4). In my view, the plea of substantial compliance is akin to the defence of necessity in criminal law, which may exclude criminal liability when a person commits an otherwise unlawful act to avoid imminent and serious harm to himself or herself. The defence calls for an inquiry into the objective lawfulness of the accused person’s act.2 Similarly, the plea of substantial compliance in the present matter calls for an inquiry into the reasons for the respondent’s non-compliance with the statutory provisions. 32. It has been held that in assessing the materiality of compliance with a legal requirement, the central element is to link the question of compliance to the purpose of the provision. In other words, to inquire ‘whether what the applicant did, constituted compliance with the statutory provisions viewed in the light of their purpose’.3 33. In this matter, no inquiry was conducted into the reason for the respondent’s non-compliance with the statutory provisions. In my opinion, the reason for non-compliance with the statutory provisions, whether peremptory or otherwise, could not be presumed. It had to be explained through evidence. 34. The respondent ought to have been allowed to lead evidence, even if doing so would have required a postponement. He was willing to explain the reason for his non-compliance with the time period prescribed by s 133(4). He ought to have justified his action. For instance, if he was allowed to give evidence and his explanation was that he was about to undergo a life-threatening medical operation that was scheduled during the remaining five days of the notice period and that he was apprehensive that nobody would assist him in instituting his action, while he was recuperating, that evidence could have formed a basis upon which the court could have exercised its discretion to condone non-compliance. That is assuming that the section vests the court with a discretion to condone non-compliance. A question which the court should have determined first before proceeding to condone non-compliance. 35. In light of the foregoing, and with reference to the extract from the record of the proceedings reflecting the exchange between the court and counsel at the commencement of the proceedings (referred to earlier in this judgment) the court _a quo_ should have allowed the respondent to lead evidence to explain why he instituted the proceedings prematurely. The court’s finding that there had been substantial compliance with s 133(4) was not grounded on facts and is thus unsustainable. 36. As regards the court’s finding that no prejudice was caused to the appellants by the premature institution of the action, in my view, that is a factual conclusion that required a factual inquiry. It could only have been made after the court had heard evidence from the appellants whether or not they had suffered prejudice. The court ought to have enquired into what prejudice, if any, the appellants had suffered by the premature institution of the proceedings by the respondent. The court further ought to have enquired whether it had discretion concerning the provision of s 133(4). Even though this is not a factual inquiry, the court must have made such a determination, whether or not the section is peremptory or not before condoning the respondent’s non-compliance. 37. It follows that the court’s finding that the appellants had suffered no prejudice was not competent without evidence being heard. I turn to consider the next ground of appeal. 38. It is to be recalled that the appellants’ contended that the court _a quo_ erred in condoning the period of prescription in the circumstances where the respondent did not lead evidence to prove when he had gained knowledge of the existence of the alleged defamatory statement. 39. Before considering this ground of appeal, it is necessary to point out that the respondent’s pleaded case (at para 5.6 of the amended particulars of claim) is that he ‘only obtained knowledge of the _identity of the maker_ of the offending statement (the third defendant) on 10 February 2022’. That statement is repeated in para 2.5 of the replication where the respondent pleaded that: ‘Prior to the date of 10 February 2022, the plaintiff was unaware who made the offending statement, whom the plaintiff alleges committed a delictual wrong against him’. (My underlining). 40. It would appear from the portions of the respondent’s pleadings referred to above that the respondent’s case is not when he gained knowledge of the facts which gave rise to his cause of action or when he became aware of the existence of the defamatory statement but when he gained knowledge of the identity of the author or maker of the defamatory statement. 41. The questions that arose and required clarification through evidence were, first, whether the respondent had at all material times been aware of the existence of the defamatory statement, but the only fact that he did not know was the author’s identity. Second, if the respondent needed the identity of the author of the statement, the reason for that could only be clarified through evidence, given the fact that, in law, he could vicariously sue the Namibian Correctional Service as a juristic person liable for the acts or omissions committed by its officials. 42. As a result of the court _a quo’s_ decision to determine this special plea of prescription without the benefit of evidence, it made an incorrect finding at para 41 where it stated that it would result in absurdity if s 133(4) were to be interpreted that ‘prescription runs against an inmate or offender in spite of the fact that he or she does not have knowledge of the identity of the maker of the statement in instances where the inmate or offender’s cause of action is not complete’. 43. In order to arrive at that finding, the court _a quo_ ought to have established, as fact, through evidence, the status of the respondent’s mind why he thought he required the identity of the author of the alleged defamatory statement. The evidence would have assisted the court in establishing the reason why the respondent thought that he required the identity of the author of the statement. Additionally, the evidence would have established whether or not the respondent knew about the existence of the statement before 10 February 2022 and that all that was lacking was the identity of the author of the statement to complete his cause of action. 44. It follows thus that the court _a quo_ ’ _s_ finding, without hearing evidence, that the respondent’s cause of action was incomplete because he was unaware of the identity of the maker of defamatory statement cannot similarly be sustained. 45. Given these considerations and findings, it follows that the court _a quo’s,_ judgment and orders concerning the two special pleas stand to be set aside in terms of s 19 of the Supreme [Act 15 of 1990](/akn/na/act/1990/15) which vest this court with the power to confirm, amend or set aside the judgment or order which is the subject matter of the appeal and to remit the case to the court of first instance for further hearing relating to the taking of further evidence or any matter as this Court may deem necessary. 46. The matter is to be referred back to the court _a quo_ to hear evidence in respect of both special pleas. _Costs_ 47. Neither party can be said to have substantially succeeded. This is because this Court did not consider the merits of the appeal. Accordingly, there is no order as to costs. _Order_ 48. In the result, the following order is made: 1. The appeal is not allowed. 2. The court _a quo’s_ judgment and the order dismissing the two special pleas are set aside. 3. The matter is remitted to the presiding judge _a quo_ , with directions to hear evidence concerning the two special pleas. 4. The Registrar must place the matter on the presiding judge’s case management roll of 7 April 2025 at 15h30. 5. There is no order as to costs. **__________________** **ANGULA JA** **__________________** **MAINGA JA** **__________________** **SMUTS AJA** APPEARANCES APPELLANTS: | J Ncube ---|--- | Of Government Attorney | | RESPONDENT: | R Mondo | Of Metcalfe Beukes Attorneys 1 Herbstein & Van Winsen _The Civil Practice of the High Court of South Africa_ 5ed p 599-600. 2 Joubert (ed) _The Law of South Africa (_ 2 ed) Vol 6 para 49. 3 _Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering_ (137/2023, 156/2023 and 148/2023 [[2024] ZASCA 63](/akn/za/judgment/zasca/2024/63) (29 April 2024) para 38. #### __Related documents ▲ To the top >