TOPIC 2: DELICT & CIVIL PROCEDURE NON-NEGOTIABLES - SPOKEN VIVA DRILLS

DUAL SERVICE RULE: Who must be served when issuing a statutory notice or summons against the South African Police Service?

• Under Section 4(1)(a) of Act 40 of 2002 (for notice) and Section 5(1)(b)(ii) (for summons), process against SAPS must be served on both the National Commissioner and the Provincial Commissioner.

• Reasoning: Ensures both central national management and provincial operational command receive formal notice, preventing default judgments against the State.

PRESCRIPTION KNOWLEDGE TEST: When exactly does the 3-year extinctive prescription period start running for an injured client?

• Under Section 12(3) of the Prescription Act 68 of 1969 as interpreted in Links v MEC for Health, prescription starts running only when the client has actual or constructive knowledge of the debtor's identity and the facts causing harm.

• Constructive Knowledge: Means knowledge acquired by exercising reasonable care. In complex cases (like medical negligence), prescription does not run until the client actually understands what went wrong legally or medically.

POLICE LIABILITY FOR COURT REMANDS: Are police liable if a magistrate remands an accused in custody after their first court appearance?

• Yes, under the Constitutional Court judgment in De Klerk v Minister of Police.

• Reasoning: Police officers remain legally liable for post-first-appearance remand detention if their pre-court wrongful conduct (like hiding exculpatory facts or fabricating dockets) directly caused the magistrate to order the remand.

• No Causation Break: The magistrate's remand order does not break the chain of cause (novus actus interveniens) if the remand was a foreseeable result of the police misconduct.

MALICIOUS PROSECUTION ELEMENTS: What 4 cumulative elements must a plaintiff prove to succeed in a claim for malicious prosecution?

• Under Minister of Justice and Constitutional Development v Moleko, the plaintiff must prove:

  1. Defendant instigated or instituted criminal proceedings.

  2. Defendant acted without reasonable and probable cause.

  3. Defendant acted with malice (animus iniuriandi — intent to injure).

  4. Criminal proceedings terminated in the plaintiff's favour.

• Negligent prosecution is not recognized in South African law (Motloung v Lethena).

PROSECUTOR DOCKET RELIANCE: Can a prosecutor be sued for malicious prosecution if they rely on a police docket at the first appearance?

• No, under National Director of Public Prosecutions v Swarts.

• Reasoning: Prosecutors are legally entitled to take police dockets at face value during initial court enrollment and bail proceedings.

• Enrolling a case based on sworn police statements in the docket does not constitute malicious prosecution unless prosecutors actually knew the statements were fake.

EMPLOYER VICARIOUS LIABILITY: What is the two-pronged test for holding an employer vicariously liable when an employee strays from their duties?

• Under K v Minister of Safety and Security and F v Minister of Safety and Security, courts apply a two-pronged test:

  • Subjective Test: Did the employee commit the wrongful act purely for personal motives?

  • Objective Test: Was there nevertheless a sufficiently close connection between the employee's wrongful act and the employer's business or constitutional duties?

• If a sufficiently close objective connection exists, the employer remains vicariously liable.

LIMITS OF STATE VICARIOUS LIABILITY: Is the State vicariously liable if an off-duty police officer commits a private crime with a service pistol?

• No, under Booysen v Minister of Safety and Security.

• Reasoning: The State is not vicariously liable for purely personal crimes committed by off-duty police officers where no objective connection exists to statutory police duties.

• Holding the State liable for off-duty private crimes stretches vicarious liability beyond constitutional policy limits.

RAF GENERAL DAMAGES THRESHOLD: What must a road accident victim prove before they can claim general damages from the Road Accident Fund?

• Under Section 17(1) read with Section 17(1A) of the RAF Act 56 of 1996, the victim must prove they suffered a serious injury.

• They must show either 30% Whole Person Impairment (WPI) under medical guidelines OR qualify under the narrative test (serious long-term impairment or severe disfigurement) submitted via a formal RAF 4 medical report.

DELICT DOCUMENT EXCHANGE ROADMAP: What is the step-by-step sequence of documents exchanged in a delictual action?

1. Letter of Demand / Section 3(2)(a) Act 40 Notice (served within 6 calendar months).

2. Section 5(2) Act 40 Moratorium (wait 30 calendar days before issuing process).

3. Combined Summons & Particulars of Claim + MCR Rule 72 Form 60A Notice.

4. Section 2(2)(b) SLA State Attorney Copy (delivered within 5 court days).

5. Notice of Intention to Defend (10 court days / 20 court days for State organs under MCR Rule 13(2)).

6. Defendant's Plea, Special Plea & Counterclaim (delivered within 20 court days).

7. Plaintiff's Replication (delivered within 15 court days — reaches litis contestatio / close of pleadings).