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[2022] ZAECQBHC 5
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Uithaler v Minister of Police and Another (97/2021) [2022] ZAECQBHC 5 (26 April 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Case
No.: 97/2021
Date
heard: 10 March 2022
Date
delivered: 26 April 2022
In
the matter between:
DARRYL
NATHAN UITHALER
Applicant
and
THE MINISTER OF
POLICE
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Respondent
JUDGMENT
ZIETSMAN
AJ:
[1] This is an
application for condonation in terms of section 3(4) of the
Institution of Legal Proceedings Against Certain Organs
of State Act
40 of 2002 (“the Act”), prompted by a special plea having
been raised by the Respondents.
[2]
The
background and purpose of the Act were recently reaffirmed in
Mabaso
v National Commissioner of Police and Another
.
[1]
[3]
In
Mabaso
the court emphasised that provisions such as section 3 are primarily
for the benefit of organs of State, rather than prospective
litigants.
[2]
The
underlying purpose being one of convenience, in order to assist the
particular organ of State to conduct proper investigations
into the
claim and then to decide whether to make payment or defend the
intended action.
[3]
[4] Before I proceed to
deal with the merits of the matter, I will first deal with
Applicant’s point
in limine
which was not raised as an
issue in the practice note, but persisted with at the hearing of the
matter.
Point
in limine
[5]
Applicant took issue with the late filing of the Respondents’
answering affidavit. The argument on behalf of Applicant
was
that as First Respondent’s answering affidavit and the Second
Respondent’s confirmatory affidavit were filed late,
without an
accompanying application for condonation, it should be treated as
“
pro non scripto
and should be disregarded”,
effectively proceeding on an unopposed basis.
[6] Applicant filed a
replying affidavit. The relevance thereof will become apparent
below.
[7]
Ms du Toit,
who appeared on behalf of Applicant, relied on
Phasha
v Morudi N.O. and Others
,
[4]
in particular paragraph 10 thereof. The applicant who was the
respondent in the main application (for eviction), brought
an
application for condonation for the late filing of his answering
affidavit (in the eviction application). The respondents,
who
were the applicants in the main application, opposed the applicant’s
condonation application. The respondents served
and filed their
answering affidavits one day out of time and the court held that
“without an application for condonation,
… the court
will not
mero
motu
or
from an application from the bar grant the respondents condonation”.
The court proceeded to determine the condonation
application on the
applicant’s founding affidavit. The facts of the matter
are, in my view, distinguishable in that
the applicant did not file a
replying affidavit. Applicant in this matter took a further
step by filing a replying affidavit.
[8]
Mr Barnett,
who appeared on behalf of the Respondents, referred to a recently
reported judgment by Kroon AJ in
Ardnamurchan
Estates (Pty) Ltd v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd
and Others
[5]
.
The court held that:
“…
where
… an answering affidavit is delivered out of time and an
applicant takes a further step by delivering a replying
affidavit,
that applicant is in the same position as an applicant who has agreed
in terms of rule 27(1) to afford a respondent
an extension for the
delivery of the answering affidavit.”
[6]
[9] Applicant filed a
replying affidavit. Accordingly, the answering affidavit cannot
be treated as a nullity and is in my
view, properly before court.
[10] In any event, I
raised the issue of prejudice with Ms Du Toit, of which there could
be none, and I therefore proceeded, in
the interest of justice, to
hear the matter.
Legal framework
[11] Sections 3(1) and
(2) deal with the obligation on a party wishing to institute
proceedings against an organ of State to give
notice of the intended
legal proceedings. The notice must be given within six months
from the date on which the debt became
due.
[12] Section 3(4)
provides for condonation if an organ of State relies on a creditor’s
failure to serve a notice contemplated
by sections 3(1) and (2).
It reads:
‘
(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.’
[13]
Once the
court is so satisfied, the discretion to condone operates according
to the established principles in such matters.
[7]
It is trite that the court’s discretion may only be exercised
if the three criteria are met. Effectively, it
is a balance
between good cause on the one side and prejudice on the other.
The facts and analysis
[14] Applicant’s
alleged claims for unlawful arrest and initial detention, against the
First Respondent, is for the period
27 to 29 January 2018, and for
further detention, against both Respondents, is for the period 29
January to 30 October 2018.
Notices in terms of section 3(1) of
the Act were given on 30 September 2019 and 18 December 2020
respectively, nearly 20 and 26
months respectively after the causes
of action are alleged to have arisen and nearly 14 and 20 months
respectively after the expiry
of the six month period within which
notice is required to be given. Summons was issued on 21
November 2019, out of the Regional
Court, in respect of the First
Respondent only. Subsequently, summons was issued on 18 January
2021, out of this court, against
both Respondents. The action
against the First Respondent in the Regional Court was withdrawn.
[15]
The founding affidavit was deposed to by Applicant. He attempts
to explain the entire period of delay in paragraphs 32
to 34 and 36,
38, 40 and 54:
‘
32.
When I was released from custody, my mother sent me to live in Cape
Town for a while because she did
not want me to become involved in
gangsterism, which is rife in the H[….] (aka “Katanga”)
area.
33.
I stayed in Mitchell’s Plain in Cape Town at my uncle’s
house until July 2019 and
then returned to Port Elizabeth.
34.
Upon my return to Port Elizabeth, I then decided that I would pursue
a claim against the police
and my mother then asked Jafta Wright
(“Oom Japie”) if he knows someone, who could assist me
with a civil claim without
charging any upfront fees. He then
told me that he would take me to his attorney. On the 5
th
of July 2019, he then took me to his attorney, Mr. Mckenzie, who then
accepted my instructions on a contingency basis.
…
36. He
advised me he would first have to investigate and consider the merits
and then draft the required statutory
notices and have it served on
the Respondent via registered mail.
…
38.
After receiving no objection to the validity of my claims from the
First Respondent, my attorney then proceeded
with summons in the Port
Elizabeth Civil Regional Court, on the 21
st
of November
2019 against the First Respondent only because he was not in
possession of a copy of the relevant police case docket.
…
40.
After receiving a copy of the relevant police case docket …
from the Respondents’ Attorney …
my attorney then
advised me that a claim against the Second Respondent should also be
instituted. I then instructed him to
proceed accordingly.
…
54. I
respectfully submit that I have demonstrated herein that good cause
exists for my failure to give timeous
notice to the Respondents.
Furthermore, I only completed Grade 9 at school and do not have any
legal background. Therefore,
I was not at all aware of the fact
that I had to institute proceedings against the Respondents within
six (6) months after the
date that the cause of action arose.’
[16] With regard to
prospect of success, Applicant alleges that there are strong
prospects of success in respect of his claims against
both
Respondents. He explains as follows:
‘
On
or about the 9
th
of January 2018, I was walking alone in
B[….] Street, H[….], Port Elizabeth. I cannot
recall what time it was,
but it was during the early afternoon.
I came from my ex-girlfriend’s (Lucretia) house in B[….]
Street, H[….].
I was on my way home at [….] L[….]
Street … I then saw a person, whom I know as Jamesie,
standing on
the corner of O[….] S[….] Road ...
There was a woman nearby, who was standing next to a wall of one of
the
houses in O[….] S[….] Road… Suddenly Jamesie
pulled out a firearm and starting firing shots in my direction.
I then turned around and ran away. I also saw a guy wearing a
grey top and pink hair, firing shots with a firearm in Jamesie’s
direction. I then ran to my house. At no stage did I
shoot anyone on the day in question because I was not in possession
of a firearm, and I had absolutely no reason or motive to shoot
anyone. I was, in fact, carrying a tablet device in my hand
at
the relevant time. Although I reside in a crime-ridden and
gang-infested area, I must emphasize that I am not part of
any gang
and until my arrest and detention on the 27
th
of January
2018, I was never arrested and did not have any brushes with the
law.’
[17] He further explains
that the basis for the wrongfulness and unlawfulness of his arrest
and subsequent detention has been fully
set out in his particulars of
claim.
[18]
Applicant, in his founding affidavit, refers to his warning statement
which he deposed to on 28 January 2018, when he was formally
charged,
but fails to annex it to his founding affidavit. It is however
annexed to his request for trial particulars, as
annexure “C”.
Having regard to the warning statement, Applicant places himself on
the scene, however in his founding
affidavit he refers to it as his
“exculpatory version”. Applicant then goes on to
allege that the only witness,
one Ms Herwels, falsely implicated him,
that her statement is contradicted by warrant officer Schoeman’s
statement as well
as the statement deposed to by the victim who was
shot, Ms Damons. According to Applicant, these statements
allegedly support
his “exculpatory version”. However,
none of the statements are attached to Applicant’s founding
affidavit
and a copy of the docket was not placed before court.
This was pertinently raised with Applicant’s counsel, who
conceded
as much.
[19]
Although
the strength of the case is not decisive,
[8]
the failure to attach the statements on which Applicant relies makes
it impossible to evaluate whether he has a
prima
facie
case,
as alleged, and it is relevant to the evaluation of the
bona
fides
of Applicant.
[20]
Applicant submitted that the Respondent’s “failure to
specifically challenge his factual allegations regarding
the issue of
strong prospects of success, has the effect that it stands
unchallenged”. This is not correct. It
is for
Applicant to place facts before court which will place the court in a
position to make an assessment on the merits.
If he fails to do
so, he does so at his own peril.
[21]
In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
the
court held that:
[9]
“
The
prospects of success of the intended claim play a significant role -
‘strong merits may mitigate fault; no merits may
render
mitigation pointless. The court must be placed in a position to
make an assessment on the merits in order to balance
that factor with
the cause of the delay as explained by the applicant. A paucity
of detail on the merits will exacerbate
matters for a creditor who
has failed to fully explain the cause of the delay. An
applicant thus acts at his own peril when
a court is left in the dark
on the merits of an intended action, eg where an expert report
central to the applicant’s envisaged
claim is omitted from the
condonation papers.”
[22]
Applicant also contends that his constitutional rights were not read
to him, but admits that he signed the notice of rights.
In
addition thereto, his warning statement also refers to the fact that
he was duly informed by detective warrant officer Gouws
of his
rights. In my view, this does not assist Applicant on the
merits.
[23]
The Respondents allege that Applicant was lawfully arrested, without
a warrant, since the arresting officer entertained a reasonable
suspicion that Applicant committed a schedule 1 offence, being
attempted murder. Further, that Applicant was at all times
lawfully detained. Since Applicant was charged with an offence
which is also listed in schedule 5 of the Criminal Procedure
Act 51
of 1977 (“CPA”), the onus rested on him to satisfy
the court hearing his bail application that it was
in the interest of
justice to release him from custody. Applicant, who was legally
represented at the bail hearing, failed
to discharge the onus on him
and, as a result, he was detained until 30 October 2018. The
charges against Applicant were
withdrawn only after the complainant
and witness refused to testify in the matter since they feared for
their lives. The
complainant indicated, in particular, that she
resided in the same area where the New Kids Gang operates. This
is the only
reason that the matter could not proceed to trial.
Significantly, this is not denied by Applicant. He merely notes
that neither the complainant nor the witness claimed that he made any
threats towards them.
[24] It is trite that all
three requirements listed in section 3(4) of the Act must be
established before a court may exercise its
discretion in favour of
condonation.
[25] It is common cause
that the first requirement has been established. The cause of
action has not been extinguished by
prescription.
[26]
The second
requirement is whether ‘good cause exists for the failure by
the creditor’. Depending on the facts
of each matter,
these factors may include ‘the 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 applicant’s responsibility therefore’.
[10]
[27]
With regard
to prospects of success in the proposed action, the First Respondent
must prove that the arresting officer entertained
a reasonable
suspicion, suspicion but not certainty, when arresting Applicant.
Applicant must prove that his post-appearance
detention
resulted in the wrongful and malicious deprivation of his
liberty.
[11]
As
stated above, there is a paucity of detail on the merits.
Applicant refers to the only witness having falsely
implicated him,
that her statement is contradicted by warrant officer Schoeman’s
statement as well as the statement deposed
to by the victim, and that
these statements allegedly support his “exculpatory version”
as contained in his warning
statement. He also refers to the
investigation diary and that nowhere in the diary is it recorded that
a photo identification
parade was held. None of the statements
are attached to Applicant’s founding affidavit and a copy of
the docket is
not before court.
[28] Strong merits may
mitigate fault, no merits may render mitigation pointless.
[29]
What is before court is Applicant’s warning statement wherein
he in fact confirms that he was on the scene. As
stated above,
it is common cause that the charges against Applicant were withdrawn
only after the complainant and witness refused
to testify in the
matter since they feared for their lives. This is the only
reason that the matter could not proceed to
trial. In my view,
this does not assist Applicant at all.
[30] To the contrary,
Applicant has neither set out sufficient facts to establish prospects
of success nor that he has a
prima facie
cause of action.
[31]
As to
Applicant’s failure to act timeously, he had to ‘
at
least furnish 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’.
[12]
[32]
In my view, the reasons for the delay are not
fully explained. I agree with the Respondents that Applicant’s
explanation
lacks detail in that he does not state when exactly he
went to live in Cape Town, why he did not pursue his claim before
leaving
and why his claim could not be pursued, and notice given,
whilst he was in Cape Town. He states that he decided to pursue
a claim upon his return, but not that he was unaware of his rights
before then or that he was not aware that a claim could be instituted
against the Respondents. Despite the fact that he consulted
with his attorney of record on 5 July 2019, the required notices
were
only given on 30 September 2019 and 18 December 2020 respectively.
[33]
Finally,
the Respondents attempt to make something of prejudice, but in my
view this is somewhat exaggerated. The Respondents
contend that
there is always the inherent danger that the memories of witnesses
have faded and that the full extent of the prejudice
is normally only
revealed at trial when a plaintiff has
carte
blanche
to make any allegation which suits his narrative, with the defendant
being unable to counter it with a clear and independent recollection
of the matter. Whilst this might be so, unreasonable prejudice
complained of must of necessity be related to the delay in
giving
notice.
[13]
It is
thus only prejudice that arose between July 2018 and April 2019, six
months after the causes of action arose,
and 30 September 2019 and 18
December 2020, when notices were given, that is relevant. The
Respondents ought to have records,
and it appears that they do have,
of the arrest and post-appearance detention of Applicant. The
Respondents have therefore
failed to establish unreasonable prejudice
as a bar to the grant of condonation.
[34] However, Applicant
has failed to establish all three requirements of section 3(4)(b) of
the Act. It therefore follows
that the only appropriate order
in the circumstances is to dismiss the application for condonation.
Costs
[35] I can see no reason
why there should be any deviation from the rule that costs follow the
result.
[36]
The following order is issued:
1.
The application is dismissed with costs.
______________________
T.
Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
Applicant:
Adv. M. du Toit, instructed by Peter McKenzie Attorneys,
Gqeberha
Obo
Respondents: Adv. A. Barnett, instructed by
the State Attorney, Gqeberha
[1]
2020 (S) SA 375 (SCA).
[2]
Mabaso
supra at para [13].
[3]
Mabaso
at para [15].
[4]
(3046/2018) [2019] ZALMPPHC (7 May 2019).
[5]
[2021] 1 All SA 829 (ECG).
[6]
At para [26].
[7]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at paras [6] and [16].
[8]
Madinda
at para 18.1.
[9]
2010 (4) SA 109
(SCA) at para [37].
[10]
Madinda’s
at para [10].
[11]
Minister
of Police and Another v Erasmus
(366/2021)
[2012] ZASCA 57
at paras 11 and 12.
[12]
See
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A, cited with approval in
Madinda’s
case at para 11.
[13]
Premier,
Western Cape v Lakay
2012
(2) SA 1
(SCA) at paras 22 – 23.