Brief Summary

Condonation — Legal Proceedings Act — Application for condonation for non-compliance with notice requirements — Applicant arrested for rape, charges withdrawn after three years — Notice of intention to institute legal proceedings served after six-month period — Respondent argues claim has prescribed and no good cause shown for delay — Court finds applicant's affidavit substantially complies with regulations and that the claim has not prescribed — Good cause established due to circumstances surrounding the arrest and subsequent legal advice — Condonation granted.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an interlocutory application for condonation brought in terms of section 3(4) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002. The applicant sought condonation for non-compliance with the statutory requirement to serve a timeous notice of intended legal proceedings on an organ of state.

The parties were Thabang Berney Mokhemisa as the applicant (and plaintiff in the contemplated action), and the Minister of Police as the respondent (and intended defendant). The respondent opposed the condonation application and sought its dismissal with costs.

Procedurally, after the applicant had served a section 3 notice and issued summons for delictual damages, the respondent delivered a plea raising a special plea of non-compliance with section 3. The applicant then pursued condonation. Before addressing condonation, the court also dealt with a preliminary objection that the founding affidavit was not properly commissioned under the applicable regulations.

The underlying dispute related to intended delictual claims for compensation for unlawful arrest and associated loss of income, arising from the applicant’s arrest on a rape charge and the eventual withdrawal of that charge.

2. Material Facts

On 22 March 2020, the applicant was arrested at his workplace on a charge of rape. He made his first court appearance on 25 March 2020. The matter was postponed, and he remained in custody for approximately three months, until his release on bail in June 2020.

The criminal charge was ultimately withdrawn on 9 March 2023 on the stated basis of lack of evidence. Shortly thereafter, the applicant sought legal advice. He consulted an attorney on or about 14 March 2023 and served a statutory notice in terms of section 3 of Act 40 of 2002 on 15 March 2023, indicating an intention to institute proceedings for damages based on unlawful arrest and loss of income.

The applicant then issued summons on 16 March 2023 and served it on the respondent on 17 March 2023, shortly after the section 3 notice. The respondent delivered a plea in which it raised a special plea that the applicant had not complied with section 3, primarily because the notice was not served within six months of the date on which the “debt became due” as contemplated in section 3(2)(a), and because the respondent did not consent to proceedings without such compliance.

In opposing condonation, the respondent contended (among other points) that the applicant’s claim had prescribed, that the applicant had not shown good cause for the late notice, and that the late notice caused prejudice to the respondent. The respondent also raised a preliminary challenge to the validity of the applicant’s founding affidavit, alleging defective commissioning under Regulation 4(1) and (2) of the Administration of Oath Regulations.

Where the merits of the intended damages claim were mentioned, the court treated them at the level of allegations relevant to prospects, noting the applicant’s assertions that SAPS members failed to follow up on an alibi and that DNA results were negative and not made available timeously. The court did not determine those disputed merits but considered them only insofar as they bore on condonation.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicant should be granted condonation for non-compliance with the notice provisions in section 3(1)(a) read with section 3(2)(a) of Act 40 of 2002, and whether the requirements in section 3(4)(b) were satisfied.

Before reaching condonation, the court had to decide a procedural issue: whether the founding affidavit should be admitted despite alleged non-compliance with the commissioning requirements in the relevant regulations.

The dispute involved a combination of legal interpretation and the application of law to fact, particularly in relation to (i) the statutory requirements for condonation, (ii) the respondent’s prescription argument connected to section 5(2) and (3) of Act 40 of 2002, and (iii) whether the applicant’s explanation constituted “good cause” and whether the respondent suffered unreasonable prejudice. The “good cause” and prejudice inquiries required an evaluative assessment guided by the statutory framework and the case law cited.

4. Court’s Reasoning

The court first addressed the respondent’s point in limine concerning the alleged defective commissioning of the founding affidavit. It set out the requirements of Regulation 4(1) and (2), which require the commissioner of oaths to certify the deponent’s acknowledgement of the contents and to state the manner, place, and date of administering the oath, as well as to provide the commissioner’s full name and business address. The court found that the commissioner’s stamp reflected that commissioning occurred at Botshabelo Police Station on 17 May 2023. Although there was a complaint that only initials appeared in parts of the affidavit, the court considered that the commissioner’s identity was capable of being ascertained from the document as a whole. Relying on Absa Bank Ltd v Botha NO and Others 2013 (5) SA 563 (GNP), the court exercised its discretion to admit an affidavit where there had been substantial compliance with the regulations, and rejected the respondent’s objection.

Turning to condonation, the court set out section 3 of Act 40 of 2002 and emphasised that condonation under section 3(4)(b) requires satisfaction of three conjunctive requirements: the debt must not have prescribed, good cause must exist for the failure, and the organ of state must not have been unreasonably prejudiced. The court relied on Minister of Agriculture and Land Affairs v C R Rance 2010 (4) SA 109 (SCA) for the proposition that these requirements are conjunctive. It further relied on Madinda v Minister of Safety & Security [2008] ZASCA 34; [2008] 3 All SA 143 (SCA) for the standard implicit in the phrase “if [the court] is satisfied”, describing it as an overall impression rather than proof on a balance of probabilities.

On prescription, the respondent argued that section 5(2) and (3) of the Act meant summons served before the expiry of 60 days after the section 3 notice must be “regarded” as served only after that 60-day period, and that this deemed service date caused the claim to prescribe. The court rejected this approach. It reasoned that section 5(3) was intended to regulate matters from the respondent’s side, particularly the steps to be taken in response to prematurely served process, and it noted that the respondent itself appeared to have approached the timing of its plea on the basis of that understanding. The court also considered it significant that the respondent had not pleaded prescription or relied on section 5(2) and (3) in its special plea. Applying the general principle (treated by the court as trite) that service of summons interrupts prescription, the court concluded that, at the time summons was served on 17 March 2023, the claim had not prescribed. The respondent’s prescription contention was therefore rejected.

On good cause, the court drew from Madinda that the inquiry is directed at fairness and may include factors such as prospects of success, reasons for delay, the sufficiency of the explanation, and bona fides. Without deciding the merits of the intended action, the court took into account the applicant’s allegations regarding investigatory failures and negative DNA results, concluding that if those allegations were established, the applicant’s prospects of success appeared favourable. The court further placed weight on the chronology following the withdrawal of charges: the applicant indicated he did not know notice was required, but once he obtained legal advice after the criminal case ended, he acted promptly, serving notice the day after consulting his attorney. The court regarded this as an important factor supporting good cause.

On prejudice, the respondent contended that issuing summons almost immediately after the notice deprived it of an adequate opportunity to investigate and to locate records (such as pocket books and occurrence books), which it asserted were archived due to the passage of time. The court was unpersuaded. It found it implausible that relevant records would have been out of reach given that the criminal case had only been withdrawn six days before notice was served, and it noted that the respondent’s members were custodians of the relevant records. The court also considered the respondent’s claim of insufficient time to prepare a defence to be inconsistent with the fact that it had filed a plea which included a special plea. Referring again to Madinda, the court endorsed the caution that courts should be slow to assume prejudice where a respondent does not properly lay a factual basis. It concluded that the respondent had not shown unreasonable prejudice resulting from the non-compliance.

The court also rejected the respondent’s contention that the application was brought only after receipt of the special plea, noting that the application had been served and filed before the plea, and accepting the applicant’s explanation that it anticipated such a plea. Ultimately, the court held that the statutory requirements were met and that it was in the interests of justice to grant condonation.

5. Outcome and Relief

The court granted the application for condonation under section 3(4) of Act 40 of 2002. It ordered that costs be costs in the cause, meaning the costs of the condonation application would follow the outcome of the main action.

Cases Cited

Absa Bank Ltd v Botha NO and Others 2013 (5) SA 563 (GNP).

Minister of Agriculture and Land Affairs v C R Rance 2010 (4) SA 109 (SCA).

Madinda v Minister of Safety & Security [2008] ZASCA 34; [2008] 3 All SA 143 (SCA).

Legislation Cited

Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.

Rules of Court Cited

No specific uniform rules were cited by number in the judgment; the court referred generally to “the rules of court” in discussing ordinary pleading timelines.

Held

The court held that the applicant’s founding affidavit, despite alleged defects in commissioning, substantially complied with the relevant regulations and should be admitted.

The court further held that the applicant satisfied the three conjunctive requirements for condonation under section 3(4)(b) of Act 40 of 2002. It rejected the respondent’s prescription argument based on section 5(2) and (3), accepted that good cause existed for the late notice given the prompt steps taken after withdrawal of charges and the prospects factor, and found that the respondent had not established unreasonable prejudice. Condonation was therefore granted, with costs in the cause.

LEGAL PRINCIPLES

Condonation for non-compliance with the notice provisions in section 3 of Act 40 of 2002 is governed by section 3(4)(b), which requires the applicant to satisfy three conjunctive elements: the debt must not have been extinguished by prescription, good cause must exist for the failure, and the organ of state must not have been unreasonably prejudiced.

In applying section 3(4)(b), the court adopted the approach that the statutory phrase “if [the court] is satisfied” entails an evaluative standard based on the overall impression made on the court rather than proof strictly on a balance of probabilities, as articulated in the cited authority.

The assessment of good cause is not confined to a single factor and is directed at fairness; it may include consideration of the explanation for the delay, bona fides, and prospects of success, without requiring the condonation court to determine the merits of the main claim.

In relation to affidavit formalities, the court applied the principle that a court retains a discretion to admit an affidavit that does not comply in every respect with commissioning requirements where there has been substantial compliance, particularly where the commissioner’s identity and the essential formalities can be ascertained from the document.

Mokhemisa v Minister of Police (1340/2023) [2023] ZAFSHC 436 (9 November 2023)