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[2010] ZAGPPHC 151
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N.Z.M.B v Minister of Safety and Security and Others (23309/2008) [2010] ZAGPPHC 151 (12 October 2010)
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REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE
NO: 23309/2008
DATE:
12/10/2010
IN THE MATTER BETWEEN:
N Z M
B
....................................................
PLAINTIFF
AND
MINISTER
OF SAFETY AND SECURITY
....................................
1
ST
DEFENDANT
COMMISSIONER OF THE SOUTH
AFRICAN
POLICE
SERVICE
................................................................................
2
ND
DEFENDANT
CONSTABLE
TSHILO
........................................................................
3
RD
DEFENDANT
JUDGMENT
RANCHOD,
J
INTRODUCTION
[1]
The
plaintiff, a 32 year old female, who at the time of her arrest was 28
years old instituted a delictual action against the defendants
wherein the plaintiff claims for unlawful arrest, unlawful detention,
contumelia
and
medical costs.
FACTUAL
BACKGROU
ND
[2]
The
allegations are that on the late night of the 29
th
to the morning of the 30
th
of December 2006 at about 00:40 the plaintiff was at the police
station in Khutsong. There is a dispute as will be apparent later,
as to what she went to complain about. The plaintiff alleges that
she went there to lay a charge of rape whereas the defendant
states
that the plaintiff had come there to complain about someone who had
stolen her shoes near the taxi rank in Khutsong. While
she was at
the police station in the charge office or client service centre as
it is called, she was arrested and detained from
00:47 on 30
th
of December 2006 until 14:10 on Sunday 31
st
of December 2006, that is, for approximately 37 hours.
ISSUES NOT IN DISPUTE
[3]
The
common cause issues are:
(1) That
on 30
th
of December 2006, the plaintiff was at Khutsong Police Station at the
charge office;
(2) That
the plaintiff spoke to a member of the South African Police Services;
(3) That
the plaintiff was arrested, detained and thereafter released on the
following Sunday.
ISSUES IN DISPUTE
[4]
The
issues in dispute are whether:
(1) The
plaintiff was arrested on the 29
th
or 30
th
of December 2006;
(2) The
plaintiff was arrested by one constable Thiso;
(3) At
the time of the arrest, the plaintiff was drunk and acting
disorderly, which is in contravention of section 127(b) of the
Gauteng Liquor Act 2 of 2003;
(4) The
plaintiff obstructed the police from executing their official duties;
and
(5) On the day of the
arrest, the plaintiff lodged a complaint of rape or a theft of shoes.
CONDONATION
[5]
In
the particulars of claim the plaintiff states that she will seek
condonation for filing the required notice in terms of section
3(2)(a) of the Legal Proceedings Against Certain Organs of State Act
40 of 2002 which was filed outside the prescribed time limit
of six
months. Plaintiff states further in the particulars of claim that
the defendants would suffer no prejudice and that good
grounds exist
for the granting of condonation and she would be able to provide
evidence in this regard.
[6] The defendants raised a
special plea to the effect that the prescribed notice was not served
on the defendants within six months
from the date on which the debt
became due.
[7] The
first thing to be noted is that the plaintiff did not formally make
an application for condonation. In the particulars
of claim she
merely mentions that condonation will be sought, as I have stated
earlier. Although a substantive application for
condonation was not
brought, during the trial the plaintiff led the evidence of Attorney
PM Verster ostensibly in support of the
condonation requirements.
[8] Before
the commencement of trial a copy of the pre-trial minute was handed
up. One of the questions put to the plaintiff’s
legal
representatives by the defendants’ legal representatives was:
“
Kindly
state the grounds for the request for condonation for the late notice
in terms of Act 40 of 2002?
”
The answer was:
“
The
evidence will be
inter
alia
:
there was a notice to the station commander of Khutsong dated 21
February 2007, within six months after the cause of action arose.
Only thereafter counsel was briefed and a better notice was send
(
sic
)
to the commissioner to make provisions for all the elements to comply
with the Act. The defendants were able to find their witnesses
and
the plaintiff is not aware of any prejudice caused by the latter
(proper) notice. The court will be addressed on the “good
cause” needed to succeed for the request for condonation and
the case law applicable. The plaintiff do (sic) not intend
to set
out all evidence necessary for her to succeed herein, but states
these facts to facilitate a possible limitation of disputes,
with
specific reference to the special plea by Defendants.”
[9] It is
trite that an application for condonation should be in writing. (See
Mahomed
v Mahomed
1999 (1) SA 1150
(E) at 1152 and
Tolo
v Mngomezulu
2001 (3) SA 669
(T) at 671). However, it may be granted even in the
absence of a substantive application. (See
McGill
v Vlakplaats Brickworks (Pty) Ltd
1981 (1) SA 637
(W) at 643C-F;
Hessel’s
Cash & Carry v SA Commercial Catering and Allied Workers Union
1992 (4) SA 593
(E) at 599F-600B). A discretion is therefore vested
in the Court to nevertheless consider the request for condonation
even though
a substantive application has not been made. I deem it
appropriate therefore to consider the request for condonation in the
interest
of justice. I accordingly turn to consider the condonation
application.
[10]
Section
3(4)
of the
Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002
permits a court to condone a litigant’s
failure to give a valid notice required by
section 3(1)prior
to
instituting legal proceedings if three requirements are met, namely –
(1) If
the debt has not been extinguished by pr
escription;
(2)
Good cause is shown; and
(3) The debtor is not
prejudiced.
Furthermore,
application for condonation may be made by the creditor even
after
proceedings have been instituted if the debt has not prescribed.
(See the
Minister
of Safety and Security v Augustus John de Witt
(unreported)
(722/2007) 103 [2008] ZASCA (19 September 2008).
[11] I
turn then to consider the three criteria in turn.
[12] That the debt has not
been extinguished by prescription is not in dispute.
[13] I
deal next with the third criteria that is, whether the debtor had
been prejudiced, before dealing with whether “good
cause”
has been shown.
[14] In
the defendants’ counsel’s written heads of argument the
special plea is not dealt with. However, in oral submissions
defendants’ counsel emphasised that the plaintiff had not shown
good cause and did not deal with the question of prejudice
at all.
Indeed, no evidence as to prejudice suffered by the defendants was
led during the trial. In any event defendants were
prepared to
proceed with the trial and in fact did so. Defendants were therefore
not prejudiced, in my view.
[1
5] The
question then arises whether good cause exists for the plaintiff’s
failure to serve the requisite notice on the defendants
within the
prescribed six months period. In this regard, during the course of
the trial the plaintiff led the evidence of her
attorney’s
Pretoria correspondents, a Ms. PM Verster. Ms Verster testified that
she received instructions from the plaintiff’s
attorneys in May
2007 to brief counsel for the purpose of drawing up the required
notice. The instructions were accompanied by
only certain letters
that were exchanged between the plaintiff’s attorneys and the
South African Police Services (SAPS).
The first letter is dated 21
February 2007 (marked exhibit “K”) from plaintiff’s
attorneys to the SAPS at Khutsong.
The letter states:
“
Dit
is ons instruksie, dat:
1. Kliënt op 29
Desember 2006 by die SAPD aangedoen het om ‘n klag van
verkragting te lê;
2. Sy toegesluit is met
mededeling dat sy dronk is;
3. Op 31 Desember 2006 is
sy eers toegelaat om ‘n geneesheer te sien of haar klag te lê;
4. MAS 357/12/2006 is
toegeken.
5. Hoewel die verdagte aan
Klaagster bekend is, is geen arrestasies hierin gemaak nie.
Ons verneem graag u
kommentaar in bovermelde aangeleentheid.”
[1
6] In
a letter dated 19 March 2007, which is marked exhibit “L”
in the record, the SAPS responded to the said letter
of the
plaintiff’s attorneys. It is stated that plaintiff was
arrested at 11:47 on 30 December 2006 for drunkenness. The
letter
goes on the state that she was released at 14:10 on 31 December 2006
and that she reported that she was raped by her boyfriend
(kêrel)
only on 31 December 2006 when a docket was opened. The docket
reference number is then provided and it is further
stated that the
case was transferred to the Carletonville Detective Branch. The
names of the investigating officer and his commander
are also
furnished as well as their contact telephone numbers. Some three
months later in a letter dated 20 March 2007 plaintiff’s
attorneys acknowledged receipt of the aforementioned letter and
proceed to inquire where the plaintiff was arrested for drunkenness
and by whom. The police responded to the letter by way of a letter
dated 4 April 2007, which is exhibit “N” of the
record,
that plaintiff was arrested by Constable Tshilo and that the
prosecutor had refused to prosecute the charge of drunkenness.
[17] At
this point it should be noted that according to the plaintiff she was
arrested on the night of 29
th
of December 2006. The period within which the prescribed notice had
to be served was six months from that date. The prescribed
notice is
dated 7 April 2008, and was delivered to the defendants on 11 April
2008, that is, almost a year after the last letter
from the police
dated 4 April 2007. By this latter date, that is, 4 April 2007,
plaintiff’s already had sufficient information
on hand to
prepare the prescribed notice, as will be apparent in what follows.
[18] Ms.
Verster emphasised that the main reason for the late delivery of the
prescribed notice which, incidentally, was on her
firm’s
letterhead, was because the police docket was not available from the
SAPS. She testified or explained that the facts
and evidence in the
notice was only obtained in April 2008, hence the delay. She
insisted that the police docket was necessary
to assess the
possibility of success of the claim. Surprisingly, even though the
notice was served well beyond the prescribed
time limit she testified
that she ultimately served the notice without the contents of the
docket being available because she was
pressed for time. However, a
perusal of the notice indicates that the submissions made by the
plaintiff’s Pretoria correspondent,
Ms Verster are not tenable.
In this regard it is worth setting out the contents of the notice in
some detail:
“Geliewe
kennis te neem dat ons hiermee instruksies ontvang het vanaf ons
kliënt N M B om ’n aksie te loods teen
die Minister van
Veiligheid & Sekuriteit, die Kommissaris van Polisie, onbekende
polisiebeamptes en konstabel THISO weens haar
onregmatige,
kwaadwillige en opsetlike arrestasie te Khutsong Polisiestasie op 29
Desember 2006, sowel as verskeie aantastings
van haar regte,
onregmatige aanhouding en ernstige kompromie van ’n behoorlike
klag van aanranding wat deur die kliënt
gelê sou word.
Die besonderhede van die
voorval was dat op Vrydag, 29 Desember ons kliënt en
haar kêrel by sy woning sekere
drankies gedrink het, wat nie
daartoe gelei het dat sy onder die invloed van drank was nie. Sy het
ongeveer 20:00 teruggestap
huis toe wat ongeveer 300 meter van sy
huis was. Dit was donker en die straatligte het gebrand, waarna ’n
man, slegs aan
haar bekend as TELO haar van agter aangeval het, in
die bosse ingesleep het en verkrag het.
Dieselfde aand ongeveer
24:00 is sy na die Polisiestasie te Khutsong om die voorval aan te
meld, was baie ontsteld en het ontroosbaar
gehuil. Konstabel THISO
was aan diens en het geweier om enige verklarings van haar te neem en
het gesê dat sy dronk is en
moet terugkom. Sy het daarop
aangedring om gehelp te word, waarna Konstabel THISO haar gearresteer
het vir dronkenskap en na die
aanhoudingselle geneem het. Alhoewel
sy herhaaldelik vermeld het dat sy verkrag is en onmiddellik
ondersoek moet word, is sy enige
behandeling, oproepe of verdere hulp
of ondersteuning geweier.
Op Sondag 31 Desember 2006
het Superintendent THOMPSON by die selle aangedoen waarna sy vermeld
het dat sy verkrag is en dat sy
toegesluit is sonder enige hulp.
Omtrent 16:00 is daar aan haar gesê dat sy kan huis toe gaan as
sy R150-00 betaal. Teruggekom
by die huis het haar ouers toegesien
dat sy teruggaan na die Polisiestasie en weer eens is sy geweier om
’n klag te lê.
Uiteindelik is daar na vele gesukkel ’n
klag van verkragting gelê en het ’n ondersoek beampte ons
kliënt
na Carltonville Hospitaal geneem, waar sy deur Dr F
Rosado gesien is. Daar is aan haar vermeld dat meer as 72 uur
verloop het
en dat daar geen bewyse is of opgespoor kan word dat sy
wel verkrag is nie. Sekere tablette is aan haar gegee om te drink en
sy
is huis toe. Haar vader het haar weer teruggeneem na die
Carltonville Hospitaal en aan hom is ook vermeld dat meer as 72 uur
verloop
het.
Ten spyte van verskeie
navrae en beloftes dat daar na hulle teruggekom sal word, het 2 weke
verloop waarna daar wel ’n verklaring
deur die kliënt
afgelê is te Carletonville Polisiestasie.”
[19] The
information provided in the notice was within the knowledge of the
plaintiff and in all probability emanated from the plaintiff
herself
and was not dependant upon any information from the police or the
docket after the letter from the police dated 4 April,
2007. Hence
Ms Venter’s evidence is woefully inadequate in explaining why
the notice was not served timeously.
[20] The
question that arises is whether this fault should be attributed to
the plaintiff i.e. the failure to show good cause.
I say this in the
particular circumstances and facts of this case before me.
[21] Plaintiff’s
attorneys were clearly aware that they needed to show good cause and
in this regard I refer to the pre-trial
minutes from which I quoted
earlier.
[22] In
plaintiff’s counsel’s written heads of argument reliance
is primarily or almost exclusively I should say, placed
on the
evidence of Ms. Verster to show good cause. Ms Verster’s
evidence does not, in my view establish good cause.
[23] I am
therefore of the view that the special plea should be upheld.
However, having said that, plaintiff may be well advised
to seek
legal advice as to whether her remedy now lies elsewhere. Having
heard the evidence on the merits I am of the view that
but for the
special plea having succeeded, the plaintiff would in all probability
have succeeded in her claim based on the facts
and the evidence led
during the trial.
[24] In the result I make
the following order:
1. The special plea is
upheld.
2. The
plaintiff’s claim is dismissed with costs.
N RANCHOD
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF: ADV. LD SCHOLTZ
INSTRUCTED
BY: VERSTER SWART INC, PRETORIA
FOR
THE DEFENDANTS: ADV. MS PHASWANE
INSTRUCTED
BY: STATE ATTORNEY, PRETORIA