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2023
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[2023] ZAECMKHC 118
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Yapi v Minister of Police (499/2021) [2023] ZAECMKHC 118 (24 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 499/2021
In
the matter between:
MOFFAT
CHAZA YAPI
APPLICANT/PLAINTIFF
and
MINISTER
OF POLICE
RESPONDENT/DEFENDANT
JUDGMENT
Rugunanan
J
[1]
This is an opposed application in which the
applicant seeks condonation for his non-compliance with the notice
provisions of section
3(2) of the Institution of Legal Proceedings
against Certain Organs of State Act 40 of 2002 (the Act).
[2]
The application follows a special plea raised by
the respondent to the applicant’s claim for damages based on a
wrongful arrest
and detention. In its special plea the respondent
adopts the stance that the applicant is debarred from bringing his
action because
he has not complied with section 3(2) for failure to
have served such notice within the prescribed period.
[3]
Section 3 of the Act provides:
3. Notice of intended
legal proceedings to be given to organ of state
(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 the legal
proceedings in question; or
(b)
the organ of state in question has consented in writing to the
institution of that legal
proceedings-
(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 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
(b)
a debt referred to in
section
2
(2)(a),
must be regarded as having become due on the fixed date.
(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.
[4]
For purposes of the Act, the word ‘debt’
is defined in section 1 as:
[A]ny cause of action-
(a)
which arises from delictual, contractual or any other liability,
including a cause of action
which relates to or arises from any –
(i)
act performed under or in terms of any law; or
(ii)
omission to do anything which should have been done under or in terms
of any law; and
(b)
for which an organ of state is liable for payment of damages …’
[5]
The
requirements in section 3(4)
(b)
are
conjunctive and must be established by an applicant seeking
condonation.
[1]
Before
attempting to deal with the requirements, it is considered convenient
to turn to the founding affidavit.
[6]
The crux of the applicant’s case is set out
in the following material averments (all sic):
‘
12.
On or about the 14
th
day of June 2018 at King
Williams Town, within the jurisdiction of this Honourable Court I was
unlawfully and wrongfully arrested
by members of the South African
police service stationed at King Williams Town police station.
…
14.
After the aforementioned unlawful and wrongful arrest I was detained
at King William’s
Town for 4 days and I was transferred to
Mdantsane Correctional Centre up until I was released on the 25
th
of October 2019.’
[7]
Elsewhere the applicant states:
‘
15.
I submit that section 3 statutory notice was sent to the National
Commissioner by registered mail
on the 20
th
of January 2020…
16.
I submit that the cause of action arose on the 14
th
day of
June 2018 and I was discharged by the court on the 25
th
of
October 2019 for lack of evidence implicating me to the offence.
…
18.
I submit further that I only became aware of the identity of the
creditor and facts giving
rise to the debt after I was acquitted by
King Williams Town Magistrates Court on the 25
th
of
October 2019.
19.
It is my submission that the statutory notice was sent to the
National Commissioner on the
20
th
of January 2020 within 6
Months after I was acquitted…’
[8]
In a supplementary affidavit the applicant makes
the averment:
‘
10.
It is my respectful submission that the debt against the respondent
has not been extinguished
by prescription. I submit further that I
acquired a complete cause of action for the recovery of my debt
against the respondent
after I was acquitted by King Williams Town
Magistrates Court on the 25
th
of October 2019.’
[9]
Relating to what the applicant states in paragraph
18 above, this is presumably a reference to section 3(3)
(a)
of the Act wherein it is stated that 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. The subsection incorporates a rider to the effect that a
creditor
must be regarded as having acquired such knowledge as soon
as he could have acquired it by exercising reasonable care unless the
organ of state wilfully prevented him from doing so.
[10]
There are two observations to be made from all the
above:
(a)
The applicant clearly identifies his ‘cause of action’ as
a wrongful arrest and detention;
and
(b)
His debt only became due on 25 October 2019 once he acquired
knowledge of the identity of the organ
of state and the facts giving
rise to the debt.
[11]
In the light of the aforegoing the question before
this Court concerns the date on which the debt became due.
[12]
Evident
from the definition of the word ‘debt’ in the Act, is
that it includes a cause arising from delictual liability.
As to when
a debt becomes due the Supreme Court of Appeal in
Truter
and Another v Deysel
[2]
held that:
‘
[It
is] due when the creditor acquires a complete cause of action for the
recovery of the debt, that is, when the entire set of
facts which the
creditor must prove in order to succeed with his or her claim against
the debtor is in place or, in other words,
when everything has
happened which would entitle the creditor to institute action and to
pursue his or her claim.’
[13]
The expression ‘cause of action’ has
been held to mean:
‘
[E]very
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment of
the court. It
does not comprise of every piece of evidence which is necessary to
prove each fact, but every fact which is necessary
to be proved.’
[3]
[14]
The meaning given to the expression is expatiated
as follows:
‘
The
proper legal meaning of the expression “cause of action”
is the entire set of facts which gives rise to an enforceable
claim
and includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim. It includes all that
a plaintiff
must set out in his declaration in order to disclose a cause of
action. Such cause of action does not “arise”
or “accrue”
until the occurrence of the last of such facts and consequently the
last of such facts is sometimes loosely
spoken of as the cause of
action.’
[4]
[15]
In
Thompson
& Another v Minister of Police and Another
[5]
– in dealing with the question as to when a cause of action
arises in a claim for wrongful arrest and detention – the
court
stated:
‘
In
[a] claim based on a wrongful arrest… the delict is committed
by the illegal arrest of the plaintiff without the due process
of the
law. Improper motive or want of reasonable and probable cause
required for malicious arrest have no legal relevance to this
cause
of action. It is also irrelevant whether any prosecution ensues
subsequent to the arrest; and, even if it does, what the
outcome of
the prosecution is. The injury lies in the arrest without legal
justification, and the cause of action arises as soon
as that illegal
arrest has been made.’
[16]
Exactly when did the applicant acquire a complete
cause of action for the recovery of the debt is the question that now
arises i.e.
when did he have the entire set of facts which he
must prove to prosecute his claim against the respondent. The
question, put another
way, is when did everything happen which would
have obliged the applicant to have given notice within the period
stipulated by
the Act?
[17]
The question is answered with reference to the
dicta
quoted
above – and self-evidently in the founding affidavit at
paragraph 16 where, on his own version, the applicant declares
his
cause of action to have arisen on 14 June 2018.
[18]
The power of the court to grant condonation is
circumscribed by the requirements in section 3(4)
(b)
of the Act. In what follows hereafter, I turn to
address these.
[19]
In dealing with the requirement of prescription
(in a supplementary affidavit), the applicant avers that he acquired
a complete
cause of action for the recovery of the debt after his
acquittal on 25 October 2019, and that the complete cause of action
was
only established after consulting with his attorneys on
17 January 2020. It bears noting that the respondent has not
raised
a special plea alleging that the applicant’s claim, and
by implication the debt, has been extinguished by prescription. For
this reason I make no factual finding on the issue of extinctive
prescription. It bears emphasising that on his own version the
applicant acquired a cause of action on 14 June 2018. This much was
properly conceded by his counsel in argument. What emerges
on the
facts is that as of 14 June 2018 the clock started ticking for
the purposes of the requirement in section 3(2)
(a)
that notice be served within six months of that
date.
[20]
This brings me to the next part of the enquiry:
What then is the applicant’s explanation for the delay in
failing to comply
with section 3(2)
(a)
of the Act?
[21]
It
is a well-known principle that an applicant for condonation must give
a full and satisfactory explanation for delays and furthermore
that
when condonation is required it must be sought as soon as the party
concerned realises that it is so required.
[6]
This goes to the requirement to show good cause and the reason/s for
the delay.
[22]
In
Madinda
v Minister of Safety and Security
[7]
good cause was held to entail:
‘
[A]
consideration of all of those factors which had a bearing on the
fairness of granting condonation and affecting the proper
administration of justice. Relevant factors might include (i) the
prospects of success in the proposed action, (ii) the reasons
for the
delay, (iii) the sufficiency of the explanation offered, (iv) the
bona fides of the applicant, and (v) any contribution
by other
persons or parties to the delay and the applicant’s
responsibility therefor.’
[23]
The finding in this judgment is that the notice
was served out of the prescribed time period stipulated in the Act.
The applicant’s
explanation is this:
‘
12.
[I] was legally represented by Legal Aid South Africa during criminal
trial and it was impossible
for me to seek legal advice on the civil
claim whilst the criminal trial had not been disposed of…
[E]ven if I was legally
represented by Legal Aid in the criminal
trial, it was impossible for me to instruct Legal Aid to pursue a
civil claim whilst the
criminal trial was still being litigated and
had not reached conclusion.’
[24]
To the contrary the deponent to the respondent’s
answering affidavit avers:
‘
40.
A person in detention is not deprived of exercising his rights to
institute legal proceedings
against another person, including the
respondent. I submit that the applicant has not taken the honourable
court into his confidence
by setting out how it was not practically
possible for him to send the statutory notice to the respondent while
he was incarcerated.
I challenge the applicant to explain this
impossibility in his replying affidavit should there be such an
explanation.’
[25]
Indeed, the applicant does not take this Court
into his confidence by laying a sufficiently candid basis for his
assertion that
it was impossible for him to seek legal advice, nor
for that matter is there any indication that he was wilfully
prevented from
exercising his rights as an arrested, detained or
accused person.
[26]
An aggravating feature of the applicant’s
misguided approach is that he dragged his feet for almost two years
after the special
plea was taken in September 2020 by launching this
application in July 2022. No explanation is put up for this delay.
[27]
To sum it all up, he somewhat offhandedly he
states:
‘
10.
I find it very strange that the respondent herein avers that I have
failed to show good cause for my
failure to send statutory notice
within 6 months. I submit that I have furnished this Honourable Court
with an explanation of my
default and it is sufficiently full to
enable the court to understand how it really came about.’
[28]
Adverting
to the requirement of the absence of unreasonable prejudice. The
applicant’s approach (that the notice period commenced
on 25
October 2019) would defeat the whole purpose of section 3(2)
(a)
of
the Act. Time limits play a vital role in bringing certainty and
stability to social and legal affairs and in maintaining the
quality
of adjudication. Without prescriptive periods, the propensity for
legal disputes being drawn out for indefinite periods
of time would
be great thereby bringing about prolonged uncertainty to the parties
to the dispute. Moreover, as time passes, the
quality of adjudication
by the courts is likely to be affected because evidence may have
become lost, or witnesses may no longer
be available to testify, or
the recollection of events may have faded.
[8]
These considerations assume relevance in the context of the purpose
served by timeous notification, and that is to afford an organ
of
state the opportunity to investigate and consider a claim laid
against it. In argument and in laying a basis for being prejudiced
the respondent adverted to the foregone opportunity to have
considered mediation as part of the investigative process.
[29]
As if oblivious of the purposes highlighted above
the applicant contents himself by making the vacant assertion:
‘
26.
The defendants will not suffer any unreasonable prejudice if
application for condonation is granted
in that the statutory notice
was sent within six months after my acquittal by the court.’
[30]
For these reasons I make the following order:
1.
The application for condonation is dismissed.
2.
The applicant is ordered to pay the costs of the
application.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant:
P
Toni
, Instructed by M T Klaas Attorneys c/o Mgangatho
Attorneys, Makhanda (Ref:
A Mgangatho
)
For
the Respondent:
D
Pitt
, Instructed by The State Attorney c/o Lulama Prince Inc.,
Makhanda (Ref:
L Prince
)
Date
heard:
03
August 2023
Date
delivered:
24
October 2023
[1]
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[2010]
ZASCA 27
para 11.
[2]
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) para 16.
[3]
Evins v
Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838E.
[4]
Ibid
at 838G.
[5]
1971 (1) SA 371
(ECD) at 375F-G.
[6]
Commissioner
for Inland Revenue v Burger
1956 (4) SA 446
(AD) at 449G.
[7]
2008 (4) SA 312 (SCA).
[8]
Mtokonya
v Minister of Police
[2017] ZACC 33
para 84.