Sixakwe v Minister of Safety and Security and Another (1763/08) [2009] ZAECPEHC 44 (1 September 2009)

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[2009] ZAECPEHC 44
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Sixakwe v Minister of Safety and Security and Another (1763/08) [2009] ZAECPEHC 44 (1 September 2009)

FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
THANDO WELLINGTON SIXAKWE V MINISTER OF SAFETY & SECURITY
+ 1
NOT
REPORTABLE
Case
Number:
1763/08
High
Court:
PORT
ELIZABETH
DATE
HEARD:
20
AUGUST 2009
DATE
DELIVERED:
1
SEPTEMBER 2009
JUDGE(S):
EKSTEEN
AJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
ADV
NOBOTANA
for
the Defendant(s):
ADV
GQAMANA + ADV LAHER
Instructing
attorneys:
Plaintiff(s):
D
GOUWS ATTORNEYS
Defendant(s):
STATE
ATTORNEY
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 1763/08
Date
delivered: 1 September 2009
In
the matter between:
THANDO
WELLINGTON
SIXAKWE
Applicant
and
MINISTER
OF SAFETY AND SECURITY
First Respondent
MINISTER
OF CORRECTIONAL SERVICES
Second Respondent
JUDGMENT
EKSTEEN
AJ:
The plaintiff is
an adult male resident in KwaZakhele, Port Elizabeth. On 29
November 2006 he was arrested by members of the
South African Police
Services in Port Elizabeth and charged of housebreaking and theft.
Charges were subsequently withdrawn
and the applicant is
now
desirous of instituting legal proceedings for the recovery of
damages for an alleged wrongful and unlawful arrest and detention

and malicious prosecution. In these proceedings the applicant seeks
condonation in terms of section 3(4) of the Institution
of Legal
Proceedings against certain Organs of State Act, 40 of 2002
(hereinafter “the Act”) for his failure to comply with
the Act
in respect of notice of his intention to institute an action against
the respondents.
Sections 3(1) and
(2) of the Act sets out the obligation imposed upon a party wishing
to institute proceedings against an organ
of state to give notice.
These sections read as follows:
“(1) No legal proceedings for the
recovery of the debt may be instituted against an organ of state
unless-
(a) the creditor
has
given the organ of state in question notice in writing of his or
her or its intention to institute the legal proceedings
in
question;
(b) …
(2) A notice must-
(a) within six
months from the date on which the debt
became
due, be served on the organ of state in accordance with section
4(1); and
(b) briefly set out-
(i) the facts
giving rise to the debt; and
(ii) such
particulars of such debt as are within the knowledge of the
creditor.”
Section 3(4)
provides for condonation to be granted in circumstances where the
notice referred to section 3(1) and (2) was not
given. It reads as
follows:
“(4)
(a) If
an organ of state relies on a creditors 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 (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.”
The papers
establish that the applicant was arrested without a warrant, along
with a second accused, on 29 June 2006 and charged
with
housebreaking and theft. The applicant and his co-accused were
detained in custody until their first appearance in court
on 1
December 2006. On this occasion the matter was postponed to 7
December 2006 and it was ordered that both the accused be
detained
in custody. A warrant of detention was duly made out in respect of
the applicant and he was held in custody pending
the second
appearance on 7 December. On 7 December the matter was once again
remanded to 20 December and again it was ordered
that the applicant
and his co-accused be held in custody and the necessary warrants
were completed.
Prior to the third
appearance, however, attorneys representing the applicant’s
co-accused caused the co-accused to be requisitioned
for purposes of
the bringing of an application for bail. The application was to be
heard on 13 December 2006, however, prior
to the hearing of the
application the prosecutor withdrew the charges against both the
applicant and his co-accused. It appears,
ex
facie
the inscription by the magistrate on the court papers filed of
record that he ordered that a release warrant in respect of the

applicant should be made out. Whether this occurred and whether it
was transmitted to the Department of Correctional Services
is not
apparent from the papers. It is, however, common cause that the
plaintiff was not released. Plaintiff remained in custody
until 20
December 2006.
The applicant did
not serve notice as envisaged in section 3(1) and (2)
.
A notice was however prepared and delivered on 11 December 2007,
some six months after the notice was due. The letter containing
the
said notice addressed to the respondents by attorney D Gouws
Incorporated requests the respondents to consent to the Institution

of Proceedings without compliance of section 3(1)(a) and 3(2)(a).
The letter contains an inscription at the foot thereof that
the
offices of Attorney Gouws would be closed from 14 December 2007 and
re-opened on 7 January 2008. The papers do not reveal
whether any
response was received from the respondents to the notice, however,
on 28 July 2008 summons was issued on behalf of
the applicant.
Respondents now rely on plaintiffs failure to serve notice of the
intended action. Hence this application.
In order to
succeed in an application of this nature the three considerations
set out in sub-section (4)(b) must be established
to the
satisfaction of this court. It is common cause that the debt relied
upon has not been extinguished by prescription and
this
consideration does not give rise to difficulty.
In
argument
it was somewhat tentatively suggested that the respondents would be
prejudiced if condonation were granted in that the
respondents would
have difficulty in obtaining the records of the alleged events and
statements from relevant personnel who may
have been involved in the
matter. I do not consider that any basis has been laid in the
papers in support of this submission.
The applicant in his founding
papers alleges that the respondents could suffer no prejudice. The
respondents did not respond
to that allegation at all and it stands
undisputed. The submission made on behalf of the respondents does
not appear to be borne
out by the amount of relevant documentation
which has indeed been annexed to the answering papers. The delay
which has occurred
was merely six months and I am satisfied that the
respondents would not be prejudiced were condonation to be granted.
The real issue to be decided and
which has been the subject of enthusiastic debate at the Bar is
whether I can be satisfied that
good cause exists for the failure by
the applicant.
In
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) Hehrer JA considered this requirement as
follows at 316E-G:
“
The second
requirement is a variant of one well known in cases of procedural
non-compliance. See
Tallwood
Properties v South African Reserve Bank
1996 (1) SA 215
(W) at 227I-228F and the cases there sited. “Good
cause” looks at all those factors which bear on the fairness of
granting
the relief as between the parties and as effecting the
proper administration of justice. In any given factual complex it
may be
that only some of many such possible factors become relevant.
These may include prospects of success in the proposed action, the

reasons for the delay, the sufficiency of the explanation offered,
the
bona
fides
of the applicant and any contribution by other persons or parties to
the delay and the applicants responsibility therefore”
In
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352H-353A Schreiner JA said:
“
It is enough for present purposes
to say that the defendant must at least give an explanation of his
default sufficiently full to
enable the Court to understand how it
really came about, and to assess his conduct and motives.”
The applicant states in his founding
affidavit that it was only whilst preparing the particulars of claim
that he was advised
by his legal advisors that he had not complied
with section 3 of the Institution of Legal Proceedings against
certain Organs
of State Act, 40 of 2002. The failure is explained
as follows:
“
I did not do so
timeously, becaus
e
I was not aware of the time limitations in terms of the Act, the only
limitation I knew was that the action must be brought within
three
years, failing which it will prescribe. A further reason for the
delay was the fact that I was (s)trapped for cash, and
couldn’t
instruct my legal advisors to proceed with the required speed.”
Scant as the
explanation may be the thrust thereof is clearly that the applicant
was unaware of the requirement in law until he
was advised by his
attorney, at the time of the preparation of the particulars of
claim, that he had failed to comply with the
requirements. The
applicant does not say precisely when this occurred, but we do know
that notice was given in December 2007.
The summons was served some
six months later, however, the particulars of claim are not dated.
What is, however, clear is that
when he was first informed of the
requirement compliance was no longer possible
It is true that he
advances a secondary reason relating to his financial disability.
In this regard much was made in argument
of the absence of any
explanation relating to his financial resources, his employment and
earnings, his endeavours to raise the
money or the difficulties
experienced in this regard. In support of this argument strenuous
reliance was placed on the judgment
in
Minister
of Safety and Security v Desmond Spalding
an unreported Full Bench Judgment of this Court, delivered on 5
December 2008 under case number CA136/08. In that matter the

applicant approached his attorney immediately after the cause of
action had arisen and was advised of the requirement relating
to the
notice and to time limits. His attorney, however, required a
deposit to be paid up front and by virtue of his financial
position
he was unable to instruct his attorney. With full knowledge of his
obligation the applicant failed to comply with the
Act. Against
this background he sought condonation and gave no explanation as to
what finances he had at his disposal whether
he was employed, what
endeavours he made to raise money for the deposit or what the
reasons were for his inability to raise the
funds to meet the
prescriptive deadline of which he had been informed.
In my view the
facts of the present matter are distinguishable from those
considered in the said judgment in that the applicant
in the present
matter was unaware of the requirement to give notice and of the time
limit. In those circumstances I do not
consider that his
financial position requires as extensive an explanation. It is the
ignorance of the applicant of the legal
requirement which gave rise
to the lack of urgency. I am satisfied that this account,
notwithstanding that it is scant in detail,
is sufficient in
explanation for the court to understand how it came about.
In addition to the
alleged lack of explanation it
was
argued on behalf of the respondents that there are no reasonable
prospects of success in the action and that the application
should
accordingly be refused on that basis. I have set out the facts
pertinent to the applicant’s claim in the proposed action
above.
They do not appear to be seriously in dispute. The applicant
contends that he was wrongfully and unlawfully arrested
and detained
from 29 November to 20 December 2006 and that servants of the first
respondent maliciously and without reasonable
and probable cause set
the law in motion against him. It is common cause that he was
charged of housebreaking and theft and
that the charges were
withdrawn on 13 December 2006 without any evidence being tendered.
Notwithstanding the withdrawal of the
charges and the order by the
magistrate that a release warrant be issued in respect of the
applicant the applicant remained in
detention until 20 December
2006.
The withdrawal of
charges without tendering any evidence in support thereof is,
prima
facie
,
evidence that reasonable prospects of success exist in a claim for
wrongful and unlawful arrest and for a malicious prosecution.
The
proceedings terminated in the plaintiff’s favour in a manner
indicative thereof that the prosecutor was of the view that
there
was no
prima
facie
case for the plaintiff to answer.
The respondents
argue that by virtue of the fact
that
warrants of detention were issued after the first appearance the
detention of the plaintiff was accordingly lawful. This
argument
does not account for the original arrest and detention prior to the
first appearance. Whether it would protect the
first respondent in
the event of the plaintiff establishing that member of the South
African Police Services acted with malice
in setting the law in
motion appears to me to be doubtful, however, it is not necessary
for me at this stage to determine that
issue.
As against the
second respondent it is alleged that the second respondent cannot be
liable where warrants of detention were issued
on
1 December and again on 7 December for the detention of the
applicant until 20 December. The second respondent, so it
is
argued, is obliged to comply with the warrant.
I have already
stated that when the charges were withdrawn on 13 December it
appears from the magistrate’s inscription that
an order was made
that a release warrant in respect of the applicant should be issued.
The applicant was not released on 13
December 2006 and remained in
custody until 20 December 2006. The papers do not reveal whether
the release warrant was in fact
issued and whether it was conveyed
to the second respondent. This is a matter which would ultimately
be determined on evidence
in possession of one or other of the
respondents. Whatever the result of that enquiry may be it appears
to me,
prima
facie
,
that the applicant does have a reasonable prospect of success of
recovering from the State damages in respect of the detention
for
the period from 13 December to 20 December 2006, whether from first
respondent or second.
The applicant
cannot at this stage be blamed for not knowing which of the
respondents would be liable for such period. His claim
,
in any event, lies against the State. See
section 1
of the
State
Liability Act, 20 of 1957
. The Minister is merely cited in his
nominal capacity as a representative of the Executive Government.
Compare
Minister
of Railways and Harbours v Johannesburg Municipality
1912
AD 595.
As against the State the applicant appears to have strong
prospects of success on at least part of his claim.
In all the
circumstances, weighing up the considerations which have bearing on
the concept of “good cause” I am satisfied
that good cause does
exist for the delay.
In the circumstances it is ordered
that:
1. The failure by
the applicant to give notice to the respondents within the required
time period as set out in
section 3(1)(a)
read with 3(2)(a) of the
Institution of Legal Proceedings against certain Organs of State
Act, 40 of 2002, is condoned in terms
of the provisions of section
3(4) of the said Act.
2. The applicant is authorised to
effect service of the particulars of claim annexed to the notice of
motion herein upon the respondent.
3. The
respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the costs of this application.
­­­­­­­­­­­­­­­
______________________
J W EKSTEEN
ACTING JUDGE OF THE HIGH COURT