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2023
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[2023] ZAFSHC 474
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Sekwela v Minister of Police (1380/2020) [2023] ZAFSHC 474 (4 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 1380/2020
In
the matter between:
SEKWELA
THANDI PETRUS
and
MINISTER
OF POLICE
Applicant
Respondent
CORAM:
P R CRONJé, AJ
HEARD
ON:
7 SEPTEMBER 2023
DELIVERED
ON:
4
DECEMBER 2023
JUDGMENT
BY:
P
R CRONJé, AJ
[1]
The Applicant was arrested on 24 August 2018. He seeks compensation
of R3 050
000.00 for unlawful arrest and detention. On 26 October
2020, the Respondent filed its Plea wherein it relies on the
Applicant’s
non-compliance with the Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2020 (“the
Act”).
[2]
The Applicant thereafter brought an application to condone
non-compliance with
Section 3 of the Act; that the Applicant’s
prosecution of the action be condoned; and leave be granted to
proceed with the
prosecution of the action.
[3]
The application for condonation was issued on 23 October 2022 and was
opposed
[4]
On 5 September 2023, the Applicant withdrew his application for
condonation,
which was served on the State Attorney on 5 September
2023.
[5]
The State Attorney, on 5 September 2023, dispatched a letter to the
Applicant’s
attorney placing on record that the Applicant
abuses Court process and that the Applicant failed to take any steps
in the application
for condonation from 18 January 2023 until 26 July
2023. It is also noted that the Respondent set the matter down
and that
no reaction was forthcoming from the Applicant until 4
September 2023. It appears that the Applicant’s attorneys
telephoned
the State Attorney asking that the opposed application be
postponed or removed from the roll and the Applicant tendered the
wasted
costs. The Respondent quoted Rule 41 of the Uniform Rules of
Court, which provides for withdrawal of applications and actions.
[6]
On 6 September 2023, the Applicant’s attorneys stated that the
attorney
who dealt with the matter on behalf of the Applicant left
the employ of the firm, failed to set the matter down and to brief
Counsel
timeously. They only became aware of the set-down of the
matter on 4 September 2023. The Applicant proposed that the
application
for condonation be withdrawn, a fresh application be
brought and tendered the cost of the application, including cost
associated
with the appearance of Counsel on 7 September 2023.
[7]
On 6 September 2023, the Applicant issued an application seeking to
withdraw
his application for condonation. He also sought to be
permitted to institute a fresh application to condone non-compliance
with the Act.
[8]
On 7 September 2023, the Respondent filed a notice of intention to
oppose the
withdrawal of the application for condonation.
[9]
The only issue between the parties, is whether the Applicant is
entitled to
withdraw the application in contravention of Rule 41(1).
A court has a discretion to allow a party to withdraw an application.
Other than costs, I could not find any basis not to allow withdrawal
of the application.
[10]
The Applicant seeks an indulgence to withdraw the matter. It is trite
that,
generally, the party seeking an indulgence has to pay the costs
thereof. I could find no exception that would not entitle
the
Respondent to wasted costs of the application.
[11]
Having considered the papers and having heard argument by the
respective legal
representatives, I am of the view that leave should
be granted to the Applicant to withdraw the condonation application.
Costs
were already tendered.
[12]
Wherefore I make the following order:
ORDER:
1.
Leave is granted to the Applicant to withdraw his application for
condonation,
issued on 23 October 2022.
2.
The Applicant pays the cost of the Respondent on party and party
scale.
3.
Leave is granted to the Applicant to institute an application to
condone his
non-compliance with Section 3 of the Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2020.
P R CRONJé, AJ
On
behalf of the Applicant
:
Mohale
Moifo Attorneys
Bokwa
Incorporated
Bloemfontein
On
behalf of the Respondent
:
Adv
P Chaka
G P
Chauke
Office
of the State Attorney
Bloemfontein