IN
THE SUPREME COURT OF NAMIBIA

CASE
NO: SA 75/2011

DATE:
12 DECEMBER 2014

REPORTABLE

In
the matter between

EBERHARD
WOLFGANG
LISSE.........................................................................................Appellant

And

MINISTER
OF HEALTH AND SOCIAL
SERVICES.......................................................Respondent

Coram:
Maritz JA, Strydom AJA and O’Regan
AJA

Heard:
21 June 2012

Delivered:
12 December 2014

APPEAL
JUDGMENT

MARITZ
JA, STRYDOM AJA and O’REGAN AJA:

[1]
This case concerns the question of
prescription. The appellant, Dr Lisse, seeks to recover damages for
what he alleges was wrongful and negligent conduct by the respondent,
the Minister of Health and Social Services, in refusing him
permission to practice in State Hospitals. In previous litigation,
the appellant successfully had the decision to refuse him permission
set aside by first the High Court and then this Court. Just short of
three years later, he issued summons to recover damages he suffered
as a result of the refusal. Because more than three years had elapsed
since he was notified of the refusal, although three years had not
elapsed since that decision was set aside, the Minister claims that
any cause of action arising out of the decision to refuse permission
has prescribed. Dr Lisse asserts, on the other hand, that because he
launched proceedings within three years of this Court’s
judgment setting aside the decision, the claim has not prescribed.

Facts

[2]
The appellant, Dr E W Lisse, is an
obstetrician and gynaecologist who worked as a doctor in the state
health service for nearly fifteen years. In December 2003, he
resigned from that employment in order to commence private practice.
In January 2004, he applied for permission to practice as a private
practitioner in the Windhoek Central Hospital in terms of s 17 of the
Hospitals and Health Facilities Act 36 of 1994. On 5 April 2004, the
application was refused and on 12 April 2004 the appellant was
informed of that decision.

Proceedings in
the High Court

[3]
On
20 April 2004, the appellant launched urgent proceedings in the High
Court seeking to review the decision to refuse him permission to
practice in the hospital. The prayer for urgent relief was
dismissed[1] but the application
for substantive relief proceeded in the ordinary course. On 8
December 2004 that application was granted by the High Court. The
Minister appealed the High Court judgment but on 23 November 2005 the
Supreme Court dismissed the appeal and the Minister was directed to
issue a written authorisation in terms of s 17 of the Hospitals and
Health Facilities Act within 30 days of the Supreme Court order.[2] 
Dr Lisse began treating patients at state hospitals and health
facilities with effect from 17 December 2005 and formally received a
certificate authorising him to do so in January 2006.

[4]
On 21 November 2008, these proceedings
commenced when Dr Lisse issued summons against the Minister claiming
delictual and constitutional damages for the period 5 April 2004 to
16 December 2005, the period during which he alleges he was
wrongfully and negligently prevented from treating patients at the
state hospitals.

[5]
The
Minister entered an appearance to defend and filed a plea denying
liability. Shortly before trial, the Minister filed a notice of
intention to amend its plea and introduced a special plea of
prescription. The amendment was granted. The special plea[3]
states that the cause of action is based on events that took place on
5 April 2004, that Dr Lisse had knowledge of those events, and that
the cause of action had therefore prescribed as summons was only
issued more than four years after the events of 5 April 2004.

[6]
At the trial, the court ruled that the
special plea should be considered separately before the merits were
traversed. The trial court upheld the special plea, save for the
period between 16 December 2005 and the date of issue of the summons.
Dr Lisse now appeals against the whole of the High Court judgment.

Appellant’s
submissions

[7]
Counsel for the appellant noted that a debt
is not deemed to be due within the meaning of s 12 of the
Prescription Act 68 of 1969, until a claimant has knowledge of the
facts from which the debt arose. Counsel argued that the appellant
was unable to determine the quantum of his damages until some months
after he had been permitted to practice. According to counsel the
appellant was only able to determine his claim from October 2005 when
he had been practicing for ten months in the State Hospital.

[8]
Secondly,
counsel, relying on the decision in Njongi
v MEC, Department of Welfare, Eastern Cape,[4]
argued that because the Minister did not, until his decision was set
aside by the Supreme Court, concede that his decision was unlawful,
any debt arising from the unlawful decision did not fall due until
the Supreme Court decision setting it aside.

[9]
Thirdly,
counsel argued that the appellant’s cause of action is based on
a continuous wrong. A continuous wrong gives rise to ‘a series
of debts arising from moment to moment as long as the wrongful
conduct endures’.[5]
Accordingly, counsel argued, the debt did not arise once and for all
on 4 April 2004, but continued until the unlawful decision was set
aside on 24 November 2005.  At the very least, according to
appellant’s counsel, the claim arising from the continuous
wrong in the period 22 November 2005 – 16 December 2005 had not
prescribed by the 21 November 2008 when proceedings were launched.
The appellant also argued that the High Court had erred in its order
by stipulating that the claim had not prescribed for the period 16
December 2005 to 21 November 2008. The claim terminated on 17
December 2005 when the appellant commenced practice in the State
Hospital and so no claim arose after that date. The High Court order
should have stated that the claim had not prescribed in the period
between 22 November 2005 and 16 December 2005.

[10]
Finally,
counsel for the appellant argued that there had been a judicial
interruption of prescription in terms of s 15 of the Prescription
Act. In this regard, he relied on Cape
Town Municipality and Another v Allianz Insurance Co Ltd where
Howie J held that the key wording of s 15 ‘must be given a wide
and general meaning’.[6]
Howie J concluded that it is sufficient for the purposes of
interrupting prescription if the process served is ‘a step in
the enforcement of the claim for a debt’.[7]
Counsel argued that the review application was a first step in the
process of recovering delictual damages for the consequences of the
unlawful decision taken by the Minister and that therefore the review
proceedings had interrupted prescription.

Respondent’s
submissions

[11]
Counsel for the respondent argued that the
appellant became aware of the cause of action in April 2004 and that
accordingly the debt was due on that date. Counsel submitted that the
appellant’s argument that his cause of action did not arise
until he had quantified his damages after practicing for ten months
in state hospitals should be rejected. Counsel argued that the
failure to have a clear grasp of the quantum of damages did not
prevent a cause of action from arising. Respondent’s counsel
accepts that the delict was a ‘continuing wrong’ and that
a fresh cause of action arose at least each day until 17 December
2005 when the appellant was permitted to use the hospital facilities.

[12]
Counsel
for the respondent argued that the appellant’s reliance on
Njongi
v MEC, Department of Welfare, Eastern Cape[8]
was misplaced, as the claim for an arrear pension is a claim in
administrative law not in delict. The wrongful decision to
discontinue the grant was an effective bar to the receipt of the
grant and therefore had to be set aside before the grants could be
claimed.

[13]
Counsel for the respondent also submitted
that the appellant could have instituted proceedings for the recovery
of damages at the same time as the review proceedings, and that he
did not have to wait till the review proceedings succeeded to sue for
damages.

[14]
Finally, counsel for the respondent
submitted that the institution of review proceedings did not
interrupt prescription as they did not constitute a claim for the
debt and were not founded on the same cause of action.

Issues

[15]
The main issue for decision on appeal is
whether the appellant’s claims against the Minister has
prescribed as provided for in s 11(d), read with ss 12(1) and (3) of
the Prescription Act 68 of 1969. This question has several
sub-issues, as will appear from the submissions on behalf of the
parties. These issues include–

(a)
was the debt due within the meaning of s 10
of the Prescription Act when the appellant was informed of the
decision to refuse him permission to practice in the hospital, or did
it become due only when the Minister’s decision was finally set
aside on 23 November 2005?

(b)
did the debt only become due when the appellant became aware of the
quantum of his damages in October 2006?

(c)
was the delict that is alleged by the appellant based on a continuing
wrong?

(d)
did the institution of review proceedings interrupt the running of
prescription?

As
will appear from what follows, this court finds it necessary only to
answer the last of these questions in this judgment.

Prescription Act

[16]
Here we set out the key provisions of the
Prescription Act.  It should be noted that the Prescription Act
has remained unchanged in all material respects in both Namibia and
South Africa since the date of Namibian Independence. The
jurisprudence of the South African courts on the Act is therefore
helpful in interpreting its provisions.

[17]
Section 10 of the Prescription Act 68 of
1969, provides that a debt shall be extinguished by prescription
after the lapse of the period that applies in respect of the
prescription of such debt. Section 11 provides that:

‘The
periods of prescription of debts shall be the following –

.
. . .

(d)
save where an Act of Parliament provides otherwise, three years in
respect of any other debt.’

[18]
Although
the Prescription Act uses the word ‘debt’, which might be
understood narrowly, the courts have held that the word should be
given a wide meaning to include what is due or owed as a result of a
legal obligation.[9]

[19]
Section 12(1) provides that prescription
will commence to run ‘as soon as the debt is due’. And s
12(3) provides that:

‘A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the fact from which the debt
arises:  Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.’

[20]
Section 15 of the Act governs the
interruption of prescription. In relevant part, it provides that:

‘(1)
The running of prescription shall subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.

(2)
Unless the debtor acknowledges liability, the interruption of
prescription in terms of ss (1) shall lapse and the running of
prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim under the process
in question to final judgment or if he does so prosecute his claim
but abandons the judgment or the judgment is set aside.

(3)
. . .

(4)
If the running of prescription is interrupted as contemplated in ss
(1) and the creditor successfully prosecutes his claim under the
process in question to final judgment and the interruption does not
lapse in terms of ss (2), prescription shall commence to run afresh
on the day on which the judgment of the court becomes executable.

(5)
. . .

(6)
for the purposes of this section, “process” includes a
petition, a notice of motion, a rule nisi,
a pleading in reconvention, a third party notice referred to in any
rule of court, and any document whereby legal proceedings are
commenced.’

Preliminary
issue: determining prescription without considering the merits

[21]
It
is important to commence by noting that this appeal is decided on the
premiss that the Minister’s refusal to permit the appellant to
practice for his own account in the Windhoek State Hospital did give
rise to a delictual and/or a constitutional action for damages. We
stress, however, that this premiss may turn out not to be correct.
Courts have often stressed that unlawful administrative action does
not automatically give rise to delictual liability.[10]
This court proceeds on the basis of the premiss that the appellant’s
particulars do disclose a cause of action, but without further
consideration of that question, because the High Court chose to
separate the question of prescription from a determination of the
merits of the action.

Interruption of
prescription

[22]
Did
the judicial review proceedings interrupt the running of prescription
within the meaning of s 15(1)? Section 15(1) states that prescription
will be interrupted by ‘the service on the debtor of any
process whereby the creditor claims payment of the debt’. In
interpreting this provision, it is important to realise the
Prescription Act displays a ‘discernible looseness of
language’.[11] For
example, it uses the word ‘debt’ with several different
meanings, and it is nowhere defined.[12]
Also as mentioned above, although the word ‘debt’ could
be construed narrowly to refer only to obligations to pay liquidated
sums of money, the courts have given the word ‘debt’ a
wide meaning to include what is due or owed as a result of a legal
obligation and it is clear that it extends beyond ‘an
obligation to pay a sum of money’.

[23]
There
is some guidance as to the meaning of s 15(1) to be found in the
other provisions of s 15. First, s 15(6) states that ‘process’
includes ‘a petition, a notice of motion, a rule nisi,
a
pleading in reconvention, a third party notice referred to in any
rule of court, and any document whereby legal proceedings are
commenced.’[13] It is
clear that a notice of motion in the review proceedings would fall
within the meaning of ‘process’ in s 15(1), as read with
s 15(6) of the Prescription Act, as long as it meets the other
requirements of s 15(1).

[24]
The
crucial question that arises is whether the service of the notice of
motion in the review proceedings in this case constituted ‘a
process whereby the creditor claims payment of the debt’ within
the meaning of s 15(1). South African courts have long accepted that
in order for prescription to be interrupted as contemplated in s 15
of the Prescription Act there must be a right enforceable against the
debtor in respect of which prescription is running, and a process
served on the debtor instituting legal proceedings for the
enforcement of that right ‘or substantially the same
right’.[14]

[25]
The
meaning of the phrase ‘claims payment of the debt’ in s
15(1) was considered in Cape
Town Municipality and Another v Allianz Insurance Co Ltd.[15]
In that case, the plaintiffs (the Municipality of Cape Town and a
company called Land and Marine Salvage Contractors (Pty) Ltd) were
jointly insured by the defendant, Allianz, for an amount of R6,1
million in respect of loss or damage relating to a sewage pipeline
under construction at Green Point. Two winter storms caused damage to
the pipeline in May and July 1985.

[26]
The plaintiffs claimed that defendant was
liable to indemnify them in terms of the insurance contract, but the
defendant disputed that liability. Plaintiffs then instituted
separate proceedings for orders declaring that the defendant was so
liable, but they did not institute proceedings to recover damages.
Before the trial relating to the claim for the declaratory orders
could commence, the defendant lodged a special plea in July 1987,
saying that as the plaintiffs had been aware of the identity of the
defendant and the nature of the loss since 1984, the right to claim
indemnity had prescribed.

[27]
One of the questions to be decided was
whether the institution of the proceedings for declaratory orders had
interrupted the running of prescription. In addressing this question,
Howie J reasoned that –

The
wide and general meaning of ‘debt’ is a pointer to the
appropriate interpretive approach to s 15 in the context of the Act
as a whole. Once it is clear that ‘debt’ has this loose
connotation, it follows that the same applied to the word ‘payment’.
Accordingly, one’s starting point is that the language to be
interpreted has an inherent elasticity.[16]

[28]
Howie
J referred to Santam
Insurance Co Ltd v Vilakasi,[17]
a case that had interpreted the predecessor to s 15(1) in the 1943
Act. Section 6(1)(b)
of the 1943 Act had provided that prescription would ‘be
interrupted by service on the debtor of any process whereby action is
instituted’ and ‘action’ was in turn defined as
‘any legal proceedings of a civil nature . . . for the
enforcement of a right’. In Vilakasi,
the
majority of the court had held that the process envisaged was one
whereby action was instituted ‘as a step in the enforcement of
a claim or right’.[18]
Howie J reasoned that it would be ‘in keeping with the purposes
of prescription and its operation in common law, and . . . applying
the same elasticity of language’ for s 15(1) to be interpreted
along the lines suggested in Vilakasi’s
case.
[19]

[29]
The
defendant argued in Allianz
that an interpretation of s 15 which would mean that the proceedings
for a declaratory order would interrupt prescription would fall foul
of the ‘once and for all rule’, as it would mean that the
plaintiffs could issue summons for damages if their declaratory order
succeeded and so would be splitting the relief sought into two sets
of proceedings. Howie J rejected this argument. He stated that if the
declaratory action were to succeed, and a damages claim thereafter
instituted, although the relief sought in the two sets of proceedings
would be different, both claims would have been based on the same
cause of action.[20] He noted
that the precise form of the relief, and the quantum thereof, are not
elements of the cause of action.[21]

[30]
Howie
J acknowledged that the result would be a ‘two-stage process’,
but although there are good reasons for avoiding piecemeal
litigation, he reasoned that it was not a consideration that should
influence the interpretation of the Prescription Act.[22]
 He accordingly concluded that –

‘1.
It is sufficient for the purposes of interrupting prescription if the
process to be served is one whereby the proceedings begun thereunder
are instituted as a step in the enforcement of a claim for payment of
the debt.

2.
A creditor prosecutes his claim under that process to final,
executable judgment, not only when the process and the judgment
constitute the beginning and end of the same action, but also when
the
process initiates an action, judgment in which finally disposes of
some elements of the claim, and where the remaining elements are
disposed of in
supplementary
action instituted pursuant to and dependent upon that judgment.’[23]

[31]
In the light of this reasoning, can it be
said that in this case, the institution of judicial review
interrupted the running of prescription in relation to the claims
that form the basis of these proceedings? To address this question,
it is necessary to consider three questions: firstly, whether the
basis of the claim in the administrative review proceedings was the
same or substantially the same as the basis of the claim in these
proceedings; secondly, whether the administrative review proceedings
were a ‘step in the enforcement of a claim for the payment of a
debt’, and, thirdly, whether the judicial review proceedings
disposed of some elements of the claim in the delictual action.

[32]
The first question is whether the basis of
the claim in the judicial review proceedings was the same or
substantially the same as the claim in these proceedings. The
application for judicial review was based on Dr Lisse’s right
to administrative justice in terms of Art 18 of the Constitution.
Article 18 provides that–

‘Administrative
bodies and administrative officials shall act fairly and reasonably
and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a competent Court or Tribunal.’

[33]
In
dismissing the Minister’s appeal in relation to the judicial
review proceedings, this Court concluded, amongst other things, that
the decision taken by the Minister was ‘unfair, unreasonable
and in conflict with Art 18 of the Namibian Constitution’.[24]
The infringement of appellant’s Art 18 rights were therefore
the legal basis for the remedy granted.

[34]
An analysis of the pleadings in these
proceedings discloses that the damages claims are based both on the
same facts as the administrative review proceedings, as well as, in
the main, on the same alleged breach of appellant’s Art 18
right. Insofar as the plaintiff seeks relief based directly on his
constitutional rights (see paras 12 and 13 of the particulars of
claim), appellant relies directly on Art 18 as well as on Art 21(j). 
Insofar as his cause of action is based on delict, appellant relies
on the breach by the Minister of principles of administrative
justice, including Art 18. The basis of the claim of the judicial
review proceedings is therefore either the same or substantially the
same as that underpinning the delictual/constitutional damages claim
at issue in these proceedings.

[35]
The second question that arises is whether
the judicial review proceedings constituted a ‘step’ in
the enforcement of the claim for payment of the debt. It is clear
that for the plaintiff his first priority in terms of relief was to
seek the setting aside of the decision and obtain mandatory relief
requiring the Minister to grant him authorisation in terms of s 17 of
the State Hospitals and Health Facilities Act 36 of 1994. Until that
relief was granted, the plaintiff was not able to practice at all in
the state hospitals. He was required to proceed by way of judicial
review to obtain that relief. For the plaintiff, the judicial review
proceedings thus constituted a crucial step in the process of
enforcing his constitutional rights.

[36]
We turn now to the third question whether
the administrative review proceedings disposed of some elements of
the claim in the delictual/constitutional damages action. In the
judicial review proceedings, the court held that the decision of the
respondent to refuse appellant permission to practise in state
hospitals was unlawful and it set the decision aside. The court also
granted mandatory relief.  The court’s decision thus had
the effect of disposing of a key issue in the damages proceedings,
whether the conduct of the respondent was lawful. It
is a central plank of the appellant’s claim for damages that
the decision of the Minister to refuse him permission to practice in
state hospitals was unlawful. Establishing unlawfulness of course is
not the same as determining that the decision was wrongful in the
sense that is necessary to found aquilian liability
but it is a necessary first step in the process of establishing
wrongfulness. The appellant could not succeed in obtaining the relief
he seeks without establishing that the decision taken by the Minister
in response to his formal application in terms of s 17 of the
Hospitals and Health Facilities Act 36 of 1994, was unlawful.
Establishing unlawfulness was thus a necessary first step to
establishing aquilian liability.

[37]
The administrative review proceedings had a
second direct effect on issues that arise in the damages proceeding
in relation to the mitigation of the damages suffered by the
appellant as a result of the unlawful administrative decision of the
respondent. The relief granted in the judicial review proceedings
circumscribed the damages suffered by the appellant. In that sense
too, the administrative review proceedings will have had a material
effect on the relief sought in the current claim.

[38]
As in Allianz,
it might be argued that the fact that
the plaintiff launched two sets of proceedings is in conflict with
the ‘once and for all’ rule. However, that rule has
particularly little purchase in the circumstances of this case, given
the fact that damages claims are ordinarily pursued by way of
summons, whereas judicial review is ordinarily pursued by way of
notice of motion. There are long-established principles that underpin
that practice. Thus, in most cases where a litigant seeks a remedy of
judicial review as well as damages, it is likely that that litigant
will have to pursue two separate sets of proceedings.

[39]
In the light of this reasoning, we conclude
that the launch of the administrative review proceedings by the
appellant had the effect of interrupting the running of prescription
as provided for in s 15 of the Prescription Act. Prescription only
recommenced to run, in terms of s 15(4) of that Act, once the
respondent’s appeal had been dismissed and the mandatory order
was given effect. Accordingly, appellant’s claim had not
prescribed on the date that summons was issued in these proceedings.

[40]
We emphasise once again that it is not open
to us in these proceedings to decide whether appellant actually has a
claim for compensation in the circumstances of this case. That is a
matter still to be decided by the trial court. What is clear is that
if an action for compensation does lie, whether in delict or directly
based on the Constitution, the basis of the action for compensation
is either the same or substantially the same as the basis of the
application for judicial review, in that it arose from the same set
of facts, and is founded, in the main, on the assertion of the same
right. Moreover, the judicial review proceedings constituted a step
in the enforcement of the appellant’s right to claim the debt,
as those proceedings determined a key issue that arises in the
damages claim, whether the respondent’s decision was unlawful.

[41]
Accordingly, the service on the Minister of
the notice of motion in the judicial review proceedings served to
interrupt prescription in relation to the damages claim in this case.
This conclusion makes it unnecessary to consider the other arguments
raised by the appellant.

[42]
The appeal must accordingly be upheld. The
appropriate order is to substitute the order of the High Court, with
an order dismissing the Defendant’s special plea of
prescription and to remit the matter to the High Court for it to
determine the case in the light of this judgment.

Costs

[43]
The appellant has been successful upon
appeal. There is no reason why costs should not follow that result
and the respondent will accordingly be ordered to pay the appellant’s
costs on appeal, such costs to include the costs occasioned by the
employment of one instructed and one instructing counsel. Given that
the High Court order has been set aside and the special plea
dismissed, it is appropriate that the appellant should be awarded the
costs he incurred in opposing the special plea of prescription in the
High Court.

Order

The
following order is made:

1.
The appeal succeeds.

2.
The order of the High Court is set aside
and replaced with the following order:

‘The
Defendant’s special plea of prescription is dismissed with
costs.’

3.
The case is remitted to the High Court to
be determined in the light of this judgment.

4.
The respondent is ordered to pay the costs
of the appellant in this court, such costs to include the costs of
one instructed and one instructing counsel.

MARITZ
JA

STRYDOM
AJA

O’REGAN
AJA

APPEARANCES

APPELLANT:

RESPONDENT:

A
W Corbett

Instructed
by Engling, Stritter & Partners

G
S Hinda assisted by G Narib

Instructed
by Government Attorney