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2023
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[2023] ZAFSHC 231
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Gumbi v Minister of Police and Another (1823/2021) [2023] ZAFSHC 231 (7 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1823/2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
JOAO
DA MARIA GUMBI
Applicant
And
MINISTER
OF POLICE
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Respondent
HEARD
ON:
23
FEBRUARY 2023
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 07 June 2023 at 11H30.
[1]
On 23 April 2021 the applicant as plaintiff instituted a claim
against the respondents as defendants
for R1 450 000.00 as
damages arising from his arrest and subsequent prosecution.
[2]
The summary of the plaintiff’s pleaded claim is the following:
On
25 February 2019 he was arrested without a warrant whilst walking
down the street at Paballong village on Welkom on a suspicion
of
contravening the provisions of section 49(1) of the Immigration
Act
[1]
by entering and remaining
in the Republic without a valid passport. Pursuant to the arrest, he
was detained at Hofmeyer police
station in
Welkom.
On the next day he was taken to court where he appeared before the
magistrate and was thereafter remanded in custody without
bail as the
public prosecutor insisted that he should not be released until he
produced his passport. He was ultimately released
on 6 March 2019
after his brother handed in his passport. The charge was also
withdrawn.
[3]
The respondents defended the action and apart from the plea to the
merits the respondents also
raised a special plea objecting to the
applicant’s non-compliance with the provisions of section 3 (2)
(a) of the Institution
of Legal Proceedings Against Certain Organs of
State Act (the Act)
[2]
on the
basis that
the
applicant’s
notice
of
his
intention to institute legal proceedings
against
the respondents was served outside the prescribed period of six (6)
months from the date the debt became due.
[4]
In terms of section 3 (1) (a) of the Act,
no
legal proceedings for the recovery of a debt may be instituted
against second respondents as organs of State unless the
applicant has given written notice to the respondents to institute
such legal proceedings within six (6) months after the claim
became
due.
[3]
[5]
The fact that the applicant’s notice
as
contemplated in section 3 (1) (a) of the Act was only served on the
respondents on
25
February 2021
some
eleven months after the debt became due is not in dispute. The
applicant’s concession triggered this application. He
seeks an
order condoning the late service of the notice on the on the grounds
that the delay is not due to a wilful default on
his part but
occasioned by the inaction on the part of his erstwhile attorneys,
Messrs Mphela Attorneys.
[6]
Section
3(4)(b) of the Act confers a discretion on the court to
grant
condonation
if
it is satisfied that: the
debt
which forms the basis of the applicant’s claim has not
prescribed; good cause exists for the failure to serve the notice
timeously; and the respondents were not unreasonably prejudiced by
the failure to serve the notice timeously.
[7]
The discretion is exercised judicially by having regard to
interrelated factors which include
amongst others, the degree of
lateness, the explanation of the delay, the applicant’s
prospects of success in the proposed
action, the applicant’s
interest in progressing the matter and the avoidance of unnecessary
delay in the administration of
justice.
[4]
[8]
The parties are
ad
idem
that the applicant’s claim has not prescribed therefore for the
applicant to succeed with this application, he must basically
show
that good cause exists for the failure to serve the notice timeously
and that the respondents are not unreasonably prejudiced
by the late
notice.
[9]
Good cause involves ‘
all
those factors which bear on the fairness of granting the relief as
between the parties and as affecting the proper administration
of
justice. 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 applicant’s
responsibility therefor’
.
[5]
[10]
The applicant attributes the delay for the service the notice to the
ineptitude of his erstwhile attorneys
Messrs Mphela Attorneys. In his
affidavit, he explains precisely a month after he was released from
custody in May 2019 he consulted
his attorney of record Mr Sefo to
institute the claim against the respondents. Mr Sefo in turn
instructed Mphela Attorneys on the
basis that they were experts in
matters relating claims involving unlawful arrests. Following the
acknowledgment of receipt of
instructions by Mphela Attorneys on 7
June 2019, Mr Sefo transmitted another letter instructing Mphela
Attorneys issue the section
3 notice. Then on 12 February 2021 Mr
Sefo received an email from Mphela Attorneys stating that Ms Mphela
was no longer with the
firm as a result Mr Sefo took over the matter
and on 25 February 2021 he served
the
section
3 notice to the respondents.
[11]
According to the respondents, the explanation provided by the
applicant is in inadequate
to enable the court to
evaluate his contribution to the delay and his
bona
fides.
There
is
an
unexplained delay of
eight (8) months from 7 June 2019 to February 2021 and the applicant
has provided no explanation with regard to what efforts he
had made
to expedite his claim.
[12]
I am of the view
that having regard to the fact that a month after the applicant was
released from custody he consulted Mr Sefo
and provided instructions
for the claim to be lodged on his behalf and this does not support
the averment that he did nothing to
prosecute his claim instead, it
does
appear that the delay is attributable to both his attorneys
.
Mr Sefo forwarded the instructions to another attorney but it turns
out he was and is able to institute these proceedings on behalf
of
the applicant. Inexplicably, he has offered no explanation why it
took him eight (8) months to do so. There is also no explanation
from
Mphela Attorneys as to what led to the delay. For these reasons, I am
unable to fault the applicant for relying on his attorneys
to act
appropriately.
I cannot detect
any
mala
fides
on
the side of the applicant and I am also
satisfied
that the
delay
has
been sufficiently explained.
[13]
As to the prospects of succeeding with the claim, it is the
applicant’s case that the police had no
probable cause to stop
and arrest him and after he was arrested the prosecution had no valid
reason to seek his continued incarceration
without bail. Based on
these reasons, his prospects of succeeding with his claim against the
respondents are good.
[14]
On the other side, it is the respondents’ case that the
applicant’s arrest was lawful as it was
carried out by the
arresting officers (constables Mokoena and Appels) in terms of
section 40(1)(a) of the Criminal Procedure Act
(the CPA)
[6]
in that, he had committed the offence of entering and remaining in
the Republic without a valid passport in the presence of the
said
arresting officers.
[15]
The respondents state that the applicant is a Mozambican national.
His arrest followed upon his failure to
identify himself as provided
for in section 41 of the Immigration Act
(the
Immigration Act)
[7]
and to produce a valid passport or any other document as proof that
he was legally in the Republic. After explaining that his passport
was at his residence, he was escorted to the said address but no
passport could be found and he ultimately admitted that he did
not
possess a valid passport. Pursuant to the arrest, the applicant
appeared in court on the next day therefore, there is also
no basis
to the applicant’s contention that the prosecution was
malicious. His papers do not even raise any issue indicating
the
purported malice and/or
animus
iniuriandi
on the part of the second respondent accordingly, the applicant has
not satisfied the requirements for a claim of malicious prosecution.
[16]
Having
regard to the facts of this matter, the applicant was arrested
without a warrant and charged for being an illegal immigrant.
Section
40(1) (a) and 40 (1) (i) of the CPA read with section 41 (1) of the
Immigration Act permits an arrest of a suspect without
a warrant who
is suspected of being an illegal immigrant.
[17]
An arrest without a warrant is
prima
facie
unlawful.
[8]
The onus is on the
respondents to prove the lawfulness thereof on a balance of
probabilities. It is not for the applicant to set
out facts which
proves the unlawfulness of the arrest.
[18]
With regard to the alleged malicious prosecution, the onus is indeed
on the applicant to allege and prove
that, the respondents
acting
without reasonable and probable cause but purely with malice (or
animo
iniuriandi
)
set the law in motion (instigated or instituted the proceedings
against the applicant) and that the resultant prosecution has
failed.
[9]
[19]
The fact that the respondents set the law in motion by arresting the
applicant is indisputable. The provisions
of
section
41(1) of the Immigration Act places a responsibility on the arresting
officer to assist the suspect in verifying his identity
or status and
only detain him if necessary. On the available facts, it seems that
responsibility was delegated to the applicant.
For all these reasons,
it
does
appear that the applicant has good prospects of succeeding with the
claim.
[20]
Regarding the issue of prejudice, the applicant contends that the
respondents are not prejudiced by the late
notice as they have been
aware of the applicant’s intended action since January 2020.
The contents of the docket, the record
relating to the criminal case
pertinent to the applicant’s arrest and the details of the
respondents’ witnesses are
known to the respondents and also
readily available as such no further investigation will have to be
undertaken by the respondents.
It is submitted that it is the
applicant who stands to be prejudiced if the late notice is not
condoned. His constitutional right
to access to justice would be
curtailed.
[21]
The respondents submit that they are prejudiced by the late notice
because: “ ‘
it is general knowledge that memories fade
and that police officers and State Prosecutors deal with hundreds of
cases every year.
Yet the police officers and the State Prosecutor
will still need to testify at the trial to disprove the Applicant’s
averments
and would still need to rely on their memories for details
relating to the incident
.’ It is thus argued that the
application ought to fail.
[22]
I find that there has been not even an attempt made by the
respondents to
lay
a basis for unreasonable prejudice. They merely allude to
generalities and speculations that:
that
the arresting officers and the state prosecutor will have to testify
at the trial to disprove the applicant’s case and
due to the
fact that they deal with hundreds of cases every year their memories
might have faded at the time they are required
to testify. These
facts are not
pertinent
to this matter. I am thus not persuaded that the respondents are
unreasonably prejudiced by the late notice.
[23]
In
conclusion, I hold that all the factors that I have decided in favour
of the applicant cumulatively, they establish good cause
for the
court to apply its discretion in favour of granting condonation.
[24]
The applicant
seeks an indulgence therefore he should be saddled with the costs of
this application.
[25]
The
following order is granted:
(1)
The
application for an order to condone the late service of the notice
contemplated
in section
3(1)(a)
of
the
Institution
of Legal Proceedings Against
Certain Organs of State Act, 40 of 2002
within
the period laid down in
s 3(2)(a)
of the Act is granted.
(2)
The applicant shall pay the costs of the application.
N.S. DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
NM Bahlekazi
Instructed
by:
Sefo
Attorneys
C/O
Mlozana Attorneys
BLOEMFONTEIN
Counsel
on behalf of Respondents
Adv.
D De Kok
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Act
No, 13 of 2002.
[2]
Act
No, 40 of 2002.
[3]
Section 3(1) (a) and 3 (2) (a) of the Act.
[4]
United
Plant Hire (Pty) Ltd v Hills and Others
1976
(1) SA 717
(A) at page 720 paras E-G quoted with approval
in
Madinda v Minister of Safety and
Security
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA)
at paras 12 and 16.
[5]
Madinda
at
para
10.
[6]
Act
No, 51 of 1977.
[7]
Act
No, 13 of 2002.
[8]
Minister
of Safety & Security v Tyulu
2009
(2) SACR 282
(SCA).
[9]
The
Minister for Justice and Constitutional Development and 2 Others v
Sekele Michael Moleko,
Case Number 131/07, (SCA) at par. 8.