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2024
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[2024] ZAFSHC 55
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Mbonambi v Mofokeng and Another (3236/2021) [2024] ZAFSHC 55 (28 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no: 3236/2021
In
the matter between:
JABULANI
VICTOR MBONAMBI
Plaintiff
and
JOHANNES
MOFOKENG
1
st
Defendant
MINISTER
OF POLICE
2
nd
Defendant
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
28 NOVEMBER 2023
DELIVERED
ON:
28 FEBRUARY 2024
[1]
The plaintiff instituted action against the defendants
for damages of
R3 000 000.00 (Three Million Rand) arising from the first
defendant having laid false charges of trespassing
against the
plaintiff which led to the plaintiff being charged at the Bethlehem
Police Station under CAS number 311/09/2019. The
matter culminated in
the prosecutor refusing to prosecute.
[2]
The first defendant is a Lieutenant Colonel and a member
of the South
African Police Service and a Station Commander at Bohlokong Police
Station. At all material times, he was acting within
the course and
scope of his employment. The second defendant is the Minister
responsible for the South African Police Services
being sued in the
main action in his representative capacity.
[3]
Pursuant to receipt of the plaintiff’s summons,
the defendant
raised a special plea of non-compliance with section 3 of the
Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002
(“the Legal Proceedings Act”
alternatively “the Act”), being that the plaintiff failed
to give notice in
writing within a period of 6 months from the date
on which the debt became due as provided for in the Act.
[4]
The charges against the plaintiff were laid on 25
th
September 2019, the date on which the defendants argue that the debt
became due. The section 3 notice was served on the defendants
on 29
th
May 2020, more than eight months after the date on which the case was
opened. It is for this reason that the defendants plead
non-compliance. The plaintiff averred that although the case against
him was opened on 29 September 2019, he only became aware of
it when
the Investigating Officer approached him on 5
th
December
2019 for an interview. It was only then that he became aware of the
facts giving rise to the claim as well as the identity
of the organ
of state. Consequently, he gave the notice on 29 May 2020 which date
fell within the prescribed 6 months’ notice
period.
[5]
This court is called upon to determine whether or not
the plaintiff
complied with the provisions of section 3 of the Legal Proceedings
Act as it avers and if not, to uphold the defendants’
special
plea of non-compliance as averred by the defendants. To do so, one
must look at the provisions of section 3 of the Legal
Proceedings Act
as well as the relevant facts of this matter. I now turn to do so.
[6]
Section 3 of the Legal Proceedings Act provides that:
“
1. No
legal proceedings for the recovery of a 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
legal proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal proceeding (s)-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
2
A notice must-
(a)
within 6 (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.
(3)
For purposes of subsection (2) (a) –
(a) a debt may not be
regarded as being due until the creditor has knowledge of the
identity of the organ of state and of the facts
giving rise to the
debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it could have
acquired it by
exercising reasonable care, unless the organ of state wilfully
prevented him or her or it from acquiring such knowledge;
and …”
[7]
I do not deem it necessary to discuss subsection (1)
and (2) as they
are self-explanatory and not in dispute in respect of what is before
this court to determine. The question on which
this matter turns
rests on sub-section (3). Subsection (3)(a) clearly states that
the debt does not become due until the
creditor acquires knowledge of
the identity of the organ of state and of the facts giving rise to
the debt. The plaintiff averred
that he only acquired knowledge of
the charges against him on 05 December 2019 when the Investigating
Officer approached him for
an interview. That the plaintiff only
acquired knowledge of the identity of the state organ, and of the
facts giving rise to the
debt on 05 December 2019, was undisputed by
the defendants and no evidence was led to the effect that the
plaintiff became aware
of the case against him on the date the case
was opened or earlier than 5 December 2019. There was also no
evidence before this
court to the effect that the plaintiff should be
regarded to have acquired such knowledge earlier than 5 December
2019. From a
simple mathematical reckoning of days, it is obvious
that the notice was served within a period of 6 months from the date
on which
the plaintiff acquired knowledge as envisaged in section
3(3) (a). For this reason, the defendants’ special plea has to
fail.
[8]
I now turn to deal with the issue of costs. The approach
to costs
rests on two principles, firstly that unless expressly otherwise
enacted, the granting or not of costs falls within the
discretion of
the court, which discretion is to be exercised judiciously. The
second principle is that generally, costs follow
the results, i.e.
they are awarded in favour of the successful litigant.
Consequently, I make the
following
Order
:
1.
The defendants’ special plea is dismissed with costs.
D.P.
MTHIMUNYE, AJ
Appearances:
For
the Plaintiff:
Adv M
A Mashinini
Advocate
in terms of section 34(2) read with
section 84(1)
& (2) of the
Legal Practice Act 28 of 2014
.
For
the Defendants
Adv K
Nhlapo-Merabe
Chambers,
Bloemfontein
Instructed
by the State Attorney, Bloemfontein