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[2010] ZAGPPHC 562
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M.E.M v P.J.M and Another (22551/2007) [2010] ZAGPPHC 562 (24 March 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
22551/2007
DATE: 24 MARCH
2010
NOT REPORTABLE
In the matter
between:
M[...]
E[...]
M[...]
.....................................................................................................................................
Plaintiff
And
P[...]
J[...]
M[...]
...........................................................................................................................
First
Defendant
MINISTER
OF SAFETY AND
SECURITY
.......................................................................
Second
Defendant
JUDGMENT
LEDWABA, J
[1]
The applicant filed an application for the late filing of the notice
in terms of
section
3(4)(a) of the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
(the
Act). The second respondent, an organ of the state, is opposing the
application.
[2] The summary of
the factual background common cause to the parties is that:
2.1 The applicant
was arrested on 29 October 2004 on a charge of conspiracy to murder
his divorced wife (the first respondent).
2.2
On 22 May 2006, nearly 18 months after the arrest, the applicant
served a notice of institution of legal proceedings against
the
second respondent in respect of
“
unlawful
arrest, detention and malicious prosecution”.
In
the notice the applicant
inter
alia
made
the following allegations:
“
Our
instruction is to demand payment from the Ministry, of an amount of
R2 300 000.00 (two Million Three Hundred Thousand Rand)
in damages
emanating from our client’s unlawful arrest detention and
malicious prosecution.
Mr.
M[...]
was
then
released on bail of R1 000.00 by the Magistrate in Pretoria under
case number 14/22/2005 and had to be in and out of court
until the
19
th
January 2006, when the charges were withdrawn by the Magistrate in
Temba Court after the alleged witnesses of the said offence
were no
where to be found and Mr. M[...]'s Attorneys applied for withdrawal
of charges.
Due to the
unlawful arrest, detention for a period of a month and the malicious
prosecution, our client suffered damages in the
amount of R2 3000
000.00 (sic) which amount we demand it to be paid within a period of
one (1) month from you (sic) receipt of
this letter, failing which we
have instruction to seek necessary relief through the courts”.
2.3 On 4 June 2007,
the applicant issued summons against the first and second respondents
claiming an amount of R2.3 million in
respect of his alleged unlawful
arrest and detention, defamation and malicious prosecution.
2.4 On 17 September
2007 the second respondent served and filed his plea in the matter
and raised a special plea regarding the applicant’s
failure to
comply with section 3 of the Act, more specifically subsections
(2)(a) and (b) thereof.
2.5 On 19 October
2007 the applicant served a replication on the second respondent’s
special plea as raised, merely denying
same.
2.6 Notwithstanding
the above, the applicant failed and/or neglected to launch an
application for condonation but instead proceeded
to set the matter
down for trial on 31 August 2009.
2.7 On 25 August
2009, a mere four days before the trial, the applicant served the
second respondent with an application for condonation.
The second
respondent objected to the said application by serving a rule 30
notice, which then prompted the applicant to postpone
the trial and
not to proceed with the application for condonation. On 22
nd
September applicant served second defendant with another application
for condonation.
[3]
In terms
section
3(4) of the Act
the
court has a discretion to condone non-compliance, subject to three
requirements being met. The provisions of
section
3(4)
read
as follows:
“
(4)
(a) If an organ of State relies on a creditor’s failure to
serve a notice in terms of subsection 2(a), the creditor may
apply to
a court having jurisdiction for condonation of such failure.
(b) The court may
grant an application referred to in paragraph (a) if it is satisfied
that-
(i) the debt has
not been extinguished by prescription,
(ii) good cause
exists for the failure by the creditor; and
(iii) the organ
of State was not unreasonably prejudiced by the failure.
(c) If an
application is granted in terms of paragraph (b), the court may grant
leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of State as the court may
deem appropriate. ”
[4]
In casu,
it
is common cause that the debt has not been extinguished by
prescription because the notice was served within the prescription
period of three years.
[5] The applicant
explained his reason(s) for not serving the notice timeously in
paragraphs 9 and10 on paginated page 6 of his
founding affidavits as
follows:
“
9.
Other than my lack of funds to consult on the civil aspect of second
respondent’s conduct within six months of such detention
I was
of the understanding that debt from second respondent was not due, if
not non-existent, up until the 19
th
January 2006. I could not have instituted proceedings to run
concurrently with criminal proceedings; hence the outcome of the
proceedings does have effect on the other type of proceedings. I was
not in a better position to serve notice for civil adjudication
of my
matter at the time when another court i.e. criminal court, is put to
the matter.
10. I interpreted
the continuation of my criminal proceedings to fall within
circumstances under which completion of the prescription
is delayed.
Similar to provisions of section 13 of
Prescription Act no. 68 of
1969
, in which the debt as an object of dispute is subjected to
arbitration, prescription of my case was misunderstood to be delayed
pending the final adjudication of criminal case.”
[6] In the
particulars of claim the applicant has three claims, claim A, B and
C.
(i)
Claim A is a claim for wrongful and unlawful arrest and detention.
Applicant is claiming R900 000 and an additional amount of
R5 00 000
for
Contumelia
suffering
personal discomfort.
(ii) Claim B is a
claim for defamation wherein applicant is claiming an amount of R400
000.
(iii) Claim C is a
claim for malicious proceedings wherein applicant is claiming an
amount of R700 000 and a further amount of R200
000 for the legal
costs of defending the prosecution.
[7]
Advocate I. Ellis for the second respondent, when she argued for the
dismissal of the application,
inter
alia,
raised
the following issues:
(i) that there was
unreasonable delay in bringing an application for defamation,
(ii)
that second respondent would be prejudiced and that there is no good
cause (i.e. applicant did not satisfy the requirements
of
section
3(4) (b) (ii) and (iii) of the Act.
[8] The Act does not
specify as within which period must an application for condonation be
brought if the notice was served before
the debt is extinguished by
prescription. I do agree that such application is to be brought
within a reasonable period depending
on the circumstances of each
case. Advocate Malowa submitted that applicant intended bringing the
application before the trial
commenced on the date of hearing. I
cannot find, on the circumstances of this case, that the delay in
filing a proper application
for condonation after the plea was filed,
justifies just the dismissal of the application.
[9]
The purpose of
the
Act
was
clearly explained in the
Minister
of Safety and Security v De Witt
2009 91) SA 457
(SCA)
that
its aim is to bring consistency to procedural requirements for
litigating against organs of State and to respect compliance
with the
constitution.
[10] The applicant
in his reasons for not serving the notice timeously, he mentioned the
lack of funds and his misunderstanding
that if the criminal
proceedings were still in progress, prescription was delayed or
suspended. He further alleged that the debt
only became due from 19
January 2006 when the case was withdrawn, referring to clause A, B
and C.
[11]
It is important to distinguish that on a claim for wrongful arrest
the debt becomes due on the date of arrest and or a claim
for
malicious proceedings the debt becomes due on the finalisation of the
criminal proceedings. See also
Thompson
and Another v Minister of Police and Another
1971 (1) SA 371
(ECD).
[12] I requested
both counsel to file additional heads of argument on whether
withdrawal of criminal charges due to lack of evidence
can be
regarded as the termination of the proceedings in favour of the
applicant herein.
[13]
Advocate Ellis for the second respondent in her additional heads of
argument submitted that the withdrawal of a case in terms
of
section
6(a)
of the
Criminal Procedure Act 51 of 1977
prior
to a plea implies that the state retain the right to charge the
accused afresh and cannot be regarded as an acquittal.
[14]
It is important to note that in
Minister
for Justice and Development v Maleko
[2008] 3 All SA 47
(SCA)
the
court
in
paragraph 8 said:
“
in
order to succeed (on the merits) with a claim for malicious
prosecution a claimant must allege and prove:
(a) that the
defendant set the law in motion instigated or instituted proceedings.
(b) that the
defendant acted without reasonable and probable cause.
(c) that the
defendant acted with “malice” and
(d) that the
prosecution has failed
[15] Second
respondent’s counsel on the issue of prejudice further said the
state may be prejudiced by the late filing of
the notice in that
witnesses may no longer be available. However, it is common cause
that the case was withdrawn due to non availability
of the witnesses.
The late filing of the notice did not cause the witnesses not to be
available.
[16] Advocate Ellis
further argued that there are no prospects of success in the
applicant’s claim in that he will not be
able to prove that
criminal proceedings were terminated in his favour because the state
may recharge the applicant.
[17]
In the
Maleko case
it
was stated that if it can be proved that prosecution has failed that
would be sufficient.
[18] In my view, if
the state does not have witnesses to prosecute its case successfully
prosecution is not possible unless the
accused pleads guilty.
[19] Of importance,
is also that the fact that the state may recharge the applicant,
after the case has been withdrawn does not
bar the applicant to
institute the malicious prosecution case otherwise the constitutional
right to claim may be frustrated by
the state in not proceeding with
prosecution after the matter has been withdrawn.
[20] If the second
respondent submits that the criminal proceedings are still continuing
then the action for malicious prosecution
has not yet arose. This
submission cannot, in my view, be correct.
[21] Regarding the
defamation claim (claim B), it is trite that the notice is silent on
the said claim and the alleged claim for
defamation has now
prescribed. I can therefore, not entertain condonation for the said
claim because it was not mentioned in the
notice. Since there was no
notice for such a claim the debt in respect of the said claim has now
prescribed.
[22] On careful
analysis of the facts which are common cause the notice in respect of
a claim for malicious prosecution was served
timeously because the
case was only withdrawn on 19 January 2006 and the claim was served
within six months after the withdrawal.
The application for the
condonation of the late filing of the notice is therefore in respect
of claim C, the claim of wrongful
arrest and detention.
[23] In my view, the
state will not be unreasonably prejudiced bythe late filing of the
notice because even before the notice was
served the witnesse(s) was
not available and if the witnesse(s) were available I think, the
applicant could have been recharged.
[24] The applicant
has, in my view, shown good cause why the ate service of the notice
in respect of .be wrongful arrest and detention
claim should be
condoned.
[25]
I therefore, make
the following order:
(i)The late
service of the notice in terms of service 3(2)(a) read with section
3(4) of the Act is condoned.
(ii) Applicant
is granted leave to pursue claims A and C in the particulars of
claim
(iii) Costs to
be costs in the main application.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT
Date of hearing: 15
March 2010
Counsel
for
Applicant: Advocate M. Malowa
Instructed by:
Matloga Attorneys
Counsel for
Respondent: Advocate I. Ellis
Instructed by:
State Attorney