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[2016] ZAECPEHC 76
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Mohale v Minister of Safety and Security (1367/09) [2016] ZAECPEHC 76 (13 December 2016)
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 1367/09
Date
Heard: 1/12/16
Date
Delivered: 13/12/16
In
the matter between:
LUNGA
MOHALE
Applicant
and
THE
MINISTER OF SAFETY AND
SECURITY
Respondent
JUDGMENT
GQAMANA
AJ:
[1]
This is an application in which the applicant
[1]
seeks an order for condonation for his failure to serve to the
respondent
[2]
a notice
contemplated in section 3(1)(a) of the Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2002
(“the
Act”). The application is vehemently opposed by the
respondent.
[2]
It is trite that in terms of the provisions of section 3(1)(a) of the
Act, any party that intends to institute legal proceedings
against an
organ of state must serve a notice in writing of his intention to
institute such proceedings. Further the notice
must be served
within six (6) months from the date on which the debt became due.
[3]
However if the creditor’s failure to serve the notice in terms
of section 2(a) is raised as an issue by an organ of state,
the
creditor may apply to court for condonation of such failure.
[4]
This application concerns exactly that. In brief, the applicant
instituted an action for damages arising from an alleged
assault,
unlawful arrest and “unlawful custody” against the
respondent. It is apparent from the particulars of
claim that
the alleged cause of action arose on 21 May 2006. Summons and
particulars of claim were issued on 20 May 2009,
missing prescription
by one day. The action was instituted without the required
notice in terms of section 3(1)(a).
[5]
In response to the applicant’s claim, the respondent in his
plea raised a special plea pointing out the applicant’s
non-compliance with the provisions of section 3(1). The
respondent’s plea was served on the applicant’s then
attorneys of record, Mr Kuban Chetty (the first attorneys) on 28
October 2009. Despite this point having been pertinently
raised, the applicant took no action to remedy and bring the
application for condonation for such failure to this court.
[6]
In the course of the proceedings, the applicant swapped attorneys,
and engaged O’Brien Incorporated attorneys (the second
attorneys). Even with the second attorneys no application for
condonation was brought to this court. I will revert
later to
this in my judgment because there is an affidavit filed by Mr O’Brien
stating that, he advised the applicant of
the necessity to file the
condonation application to such that same was prepared and drafted by
Mr O’Brien but the applicant
refused to sign it. Mr
O’Brien withdrew as the applicant’s attorney on 14 August
2014 and the present attorney’s
services were engaged.
The present attorneys, Peter Mckenzie attorneys were on record as
from 9 September 2014. Still
no application for condonation was
filed and the matter having been set down for trial on 13 October
2014 was removed from the
roll. The status
quo
remained
even with the present attorneys of record, and the condonation
application surfaced for the first time on 7 October 2016.
This
was almost seven years after reliance on this point i.e.
non-compliance with section 3(1), was drawn to the attention of the
applicant.
[7]
The powers of this court to grant condonation is circumscribed by
section 3(4)(b). In short I can grant the application
if I am
satisfied that:
(a) the debt has not
prescribed;
(b) good cause exists for
the failure by the creditor; and
(c) there will be no
unreasonable prejudice to the respondent.
[8]
There is
plethora
of
jurisprudence
that gives guidance to the courts in exercising their discretion in
applications such as this one. The Supreme Court of Appeal,
faced with an appeal on the same issue in
Madinda
v
Minister
of Safety and Security
[3]
eloquently set out the principles to be followed in exercising the
discretion as prescribed in section 3(4).
[9]
In the instant application, it is common cause that the prescription
factor is not applicable. Mr Gajjar, counsel for
the respondent
did not submit that the respondent will be unreasonable prejudice,
therefore the third leg is also not applicable.
That then
brings me to the second consideration, namely the good cause.
In consideration of “good cause” I need
to bear in mind
and not conflate the failure to give notice within the prescribed
time period and the delay in bringing the application.
Unlike in
Madinda’s
case, in this matter the notice
has not been given at all. The explanation given by the
applicant for his failure, is lacking
and insufficient. With
all my attempts to assist the applicant, but I just cannot find an
explanation for his failure to
give the notice. Even after his
non-compliance was drawn to his attention by the respondent in his
plea no action was taken
to remedy same. In fact, except for Mr
O’Brien’s affidavit that the applicant refused to sign
the condonation
application, there is just no explanation.
[10]
In his founding affidavit in the condonation application, the
applicant mentioned that after the alleged assault, he
lost
consciousness and regained same only after three
[4]
days when he was in an intensive care unit at Livingstone Hospital.
After his discharged from Livingstone Hospital, in October
2006
[5]
,
he was again arrested and was only released on bail during November
2006.
[6]
Thereafter on 13
November 2006, he attended to Mount Road Police Station to lay
charges against the police member that assaulted
him. Further
when he also wanted to “open” a civil case against the
police, he was advised (by whom is not mentioned),
that civil action
can only be instituted once the criminal case is finalised.
Since then no further actions was taken by
him until he spoke to a
certain Advocate Crompton during April 2009, who then referred him to
his first attorney, Mr Chetty and
summons were then issued on 20 May
2009. As I have mentioned no notice was ever served on the
respondent and the condonation
application was only served and filed
in October 2016. Not that the applicant was oblivious to the
need to serve the envisaged
notice and/or to bring the condonation
application but, despite such knowledge no notice or condonation
application was forthcoming.
[11]
As guided by the principles set out in
Madinda
(
supra
),
“good cause” requires one to look at all factors which
have the bearing on the fairness and proper administration
of
justice. Therefore in considering “good cause”, I
need to take into account various factors,
inter alia
, the
prospects of success, the reasons for the delay, the sufficiency of
the explanation offered, the
bona fides
of the applicant, any
contribution by other persons or parties to the delay and the
applicant’s responsibility therefor.
[12]
On facts and evidence before me the explanation given for failing to
give such notice is lacking and insufficient.
In addition to
this even the explanation for the delay in bringing the condonation
application suffers the same fate. No
other person except the
applicant can be blamed for the delay. The
bona fides
of
the applicant is questionable. When Mr O’Brien, his
second attorneys draw to the applicant’s attention the
need for
the condonation application, the applicant refused to sign the
condonation application. Regarding the prospects
of success,
this is not one of the cases that the strength of the merits in
favour of the applicant can be easily dissected from
the pleadings.
The applicant contends that he was assault and unlawfully arrested by
members of the SAPS. In his plea,
the respondent denied the
assault and the unlawful arrest and pleaded that the shooting
occurred during the scaffolding between
the applicant and his friend
when they were attempting to rob Constable Xatasi his firearm. The
plea goes on and state that, the
arrest was legally justified in
terms of section 40(1)(a), alternatively,
section 40(1)(b)
of the
Criminal Procedure Act 51 of 1977
in that, the applicant was arrested
and detained on the charges of housebreaking, attempted robbery of a
firearm, resisting a lawful
arrest and assault. Without
expressing a firm view but, on the facts pleaded, the applicant’s
prospects of success
are very slender.
[13]
Therefore on the facts and all the evidence before me, I am not
satisfied that good cause favours the applicant and consequently
condonation application must be refused.
[14]
I need to deal also with the issue of the reserved costs on 25
October 2016. In doing so, I must sketch out the
following
relevant facts. The condonation application was served on the
respondent’s attorneys on 7 October 2016, with
no opportunity
afforded to the respondent to exercise his rights in accordance with
the time frames set out in Rule 6 of the Uniform
Rules. On 21
October 2016, the notice of opposition was served on the applicant’s
attorneys. Consequently the
application set down on 25 October
2016 had to be postponed and costs were reserved. I have no
reservations in my mind that
had the application been brought in the
long form, the matter would not have been set down on 25 October 2016
and the costs occasioned
by the postponement on the said date would
have been avoided. The applicant was the creator of this
misfortune and consequently
he must suffer the consequence that flows
from that.
[15]
In the circumstances the following order is made:
(a) The application for
condonation for the non-compliance with section 3(1) of the Act is
refused.
(b) The applicant is
ordered to pay the respondent’s costs including the reserved
costs occasioned by the postponement on
25 October 2016.
_______________
NW
GQAMANA
Acting
Judge of the High Court
Counsel
for the Applicant:
Adv AC Barnett
Port Elizabeth
Instructed
by:
Messrs Peter Mckenzie Attorneys
Port Elizabeth
Counsel
for the Respondent:
Adv GJ Gajjar
Port Elizabeth
Instructed
by:
State Attorneys
Port Elizabeth
Date
Heard:
1 December 2016
Date
Delivered:
13 December 2016
[1]
Plaintiff in
the main action.
[2]
Defendant in the main action.
[3]
2008(4) SA 312 (SCA), paras [9] – [16].
[4]
This must have been on or about 23 May 2006 because the alleged
assault happened on 21 May 2006.
[5]
I am not told of the exact date and also same is not clear from the
hospital records.
[6]
Again the exact date is not mentioned.