Hamwoongo v Government of the Republic of Namibia [2022] NAHCMD 24 (30 January 2023)

Background 

The plaintiff sued the defendants in her capacity as the biological grandmother and legal guardian of her minor grandson who was born on 15 September 2005. The third to eighth defendants are members of the Namibian Police Force who were allegedly involved in the events giving rise to the claim, while acting in the course of duty and within the scope of their employment with the first and second defendants.

The claim is a sequel to events that allegedly took place on 30 September 2015, at or near Ohandiba village in the Ohangwena Region. It is alleged by the plaintiff that on that day, the minor child, who was then ten years old, was wrongfully, unlawfully, and intentionally assaulted by the third to the eighth defendants who were at the material time based at Eenhana police station.

Special plea of prescription

The defendants defended the matter and raised a special plea. The defendants allege that the plaintiff failed to institute the claim within a period of 12 months from the date upon which the cause of action arose as provided for in s 39(1) of the Police Act 19 of 1990. The plaintiff on the other hand denies that the claim has prescribed and avers that the provisions of s 13(1) (a) of the Prescription Act, 68 of 1969 provide for delay of prescription where a minor is concerned. 

Furthermore, the plaintiffs aver that in terms of s 13(1)(i) of the Prescription Act, the period of prescription would only be completed within a year of the minor attaining majority. This, it is submitted, translates in the claim prescribing on 15 September 2024. Lastly, it is averred that because the plaintiff served the statutory notice on 25 January 2021 and then instituted the claim on 25 February 2021, the plaintiff’s claim has not prescribed and as such, the special plea must be dismissed with costs.

Issues

The parties submitted a special plea of prescription for determination. The Court had to decide whether the said plea must succeed or fail.

Discussion

‘[20] I am of the considered view that the arguments raised by the plaintiffs were taken full care of in the Supreme Court judgment of Minister of Home Affairs v Madjiet and Others. The question confronting the Supreme Court was whether this court was correct in declaring s 39(1) of the Act unconstitutional, because of its alleged violation of Articles 10(1) and 12(1)(a) of the Constitution. This court had held that it was.

[21] What must be plain, in matters like this, is that a judgment of the Supreme Court, which is on all fours with a question submitted to this court for determination, is binding. I am of the considered view that certain portions of the Madjiet judgment, which I will quote below, puts paid the argument that the plaintiffs may be correct on the question of the special plea. This also addresses the question whether it is correct, as submitted for the plaintiffs, that there is a tension between the Prescription Act and the Police Act and that as such, the time periods for prescription recorded in the Prescription Act should carry sway, over those contained in s 39 of the Act.

[23] … a party who seeks to claim under the Police Act, is bound to comply with the limitation procedures provided thereunder. It is well documented what the rationale for bringing claims against institutions such as the police, the army or other government institutions is. In this connection, the limitation period applies, including if the claimant is a minor.

[24] The Act is not insensitive however. It recognises there may be certain impediments to a claimant lodging the claim within the prescribed period. This may include minority. In this instance, the Supreme Court is very clear in its pronouncement that a claimant who fails to lodge his or her claim within the prescribed period, may seek a waiver from the Minister, which, if granted, may operate well beyond the limitation period, which would have commenced to run upon attainment of majority.

[25] At para 51, the court reasoned and said, ‘In any case the law is replete with provisions which for various reasons, defer the exercise of the right to sue. An obvious example is the case of a minor. Although he/she may generally boast of having the constitutional right of equality before the law, the law itself provides that a minor cannot sue until he or she attains the age of majority, otherwise he/she may sue only through a guardian ad litem.’ 

[29] The main question that needs to be answered…are the implication of s 13 the Prescription Act vis-à-vis the provisions of s 39 of the Police Act…

[32] Mr. Tjaveondja submitted on the plaintiffs’ behalf that when regard is had to the two provision quoted above, namely the one providing for a longer period of time within which a claimant may lodge a claim, the court must give effect to the provision that is more benevolent to the claimant in terms of the period for lodging the claim. In this connection, this is the Prescription Act for the reason that it provides a period of three years to lodge a claim. In contradistinction, the Police Act provides a limitation of 12 months from the time the claim arose.

[33] Before dealing with the question, both parties, at the instance of the court, referred to the learned author Loubser, who opines that extinctive prescription as provided for in the Prescription Act causes effective loss of the right to enforce an obligation after a certain period of time. Statutory limitations, on the other hand, are provided for under various pieces of legislation and they have been construed to embody a distinct form of extinctive prescription in that they do not affect substantive rights at all but merely constitute a bar to the remedy, as part of procedural rather than substantive law.

[34] It must be pointed out that s 39 of the Act does not permanently and irreversibly take away the right to bring a claim once the statutory limitation period has not been observed. I say so because the very provision grants the Minister the right to waive the said period for lodging a claim. This is what the Supreme Court noted in the Madjiet case.

[35] In dealing with the argument advanced by Mr. Tjaveondja, regarding the court having to choose the legislation that is most benevolent to the claimant, Mr. Kadhila, for his part and in negating the submission, referred the court to the provisions of s 16 of the Prescription Act. They provide as follows:

‘Subject to the provisions of subsection (2)(b), the provisions of this chapter shall, save where they are inconsistent with any Act of Parliament which prescribes a specified period within which a claim is to be made, or an action is to be instituted, in respect of a debt, or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act.’

[36] To my understanding, this provision means that the prescription periods contained in the Prescription Act apply in circumstances where they are not in conflict with limitation periods contained in various other pieces of legislation, such as the Police Act. In this connection, it must be noted that there is a limitation period stipulated in the Police Act and where this period is in conflict with the period set out in the Prescription Act, the provision in the former must take precedence.

[37] The upshot of this is that in the instant case, the plaintiffs should have brought the claim on behalf of the minor within the period stated in s 39, subject of course to the Minister exercising the power of waiver contained in the very section. It does not follow that because the Prescription Act allows a longer period for claiming debts, then a claimant will, where there is a specific piece of legislation providing the limitation period is shorter, be bound by the Prescription Act in that case. In my considered view, the Latin maxim generalia specialibus non derogant (i.e. a general provision will not override a specific one).

[38] It is important to mention that there are policy considerations, which impelled the legislature to make provision for shorter limitation periods in relation to certain governmental institutions. The longer the time is allowed for claims may prejudice the ability of the institutions to investigate and meet or accept the claim because of institutional memory likely to be lost with a longer period within which a claim can be instituted.

[39] I reiterate that in the present case, the claim has been brought on the minor’s behalf and the plaintiffs are in duty bound to comply with s 39, even to the extent that they have failed to lodge the claim timeously… 

Conclusion

[40] In the premises, and having regard to all the considerations discussed above, I am of the considered opinion that the special plea should succeed. Costs should, in the premises, follow the event.’

Determination

Held: Extinctive prescription is provided for in the Prescription Act and it causes effective loss of the right to enforce an obligation after a certain period of time. Statutory limitations on the other hand, are provided for under various pieces of legislation and they have been construed to embody a distinct form of extinctive prescription in that they do not affect substantive rights at all but merely bar a remedy, and they form part of the law of procedure, as opposed to substantive law.

Held that: Section 39 of the Police Act does not permanently take away a claimant’s right to institute proceedings, because the very provision grants the Minister a right to waive the period stipulated for bringing the proceedings, i.e. 12 months.

Held further that: Section 16 of the Prescription Act allows the periods stated in the Prescription Act to apply where they are not in conflict with periods stipulated by an Act of Parliament. A claimant will not, where there is a specific piece of legislation, be bound by the general legislation. This is expressed in the Latin maxim generalia specialibus non derogant.

Court order

The defendants’ special plea of the plaintiff’s failure to comply with the provisions of section 39 of the Police Act 13 of 1990 was upheld with costs of the special plea. The plaintiffs were ordered, if so advised, to file an application for waiver to the Minister in terms of section 39 of the Police Act 13 of 1990, within twenty (20) days of the date of this order. The matter was postponed to 9 March 2023 at 08:30 for a status hearing.

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