Mphati and Another v Minister of Police (600/2021) [2022] ZAFSHC 39 (7 March 2022)

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[2022] ZAFSHC 39
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Mphati and Another v Minister of Police (600/2021) [2022] ZAFSHC 39 (7 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 600/2021
In the matter
between: -
SIZWE
CALVIN PUMLANI MPHATI
First
Applicant/Plaintiff
KARABO
JACOB TAU
Second
Applicant/Plaintiff
and
THE
MINISTER OF POLICE
Respondent/Defendant
CORAM:
N. M.
MBHELE,
DJP
HEARD
ON:
18 NOVEMBER 2021
DELIVERED
ON:
07 MARCH 2022
[1]
The applicants, Messrs Sizwe Calvin Pumlani
Mphati (Mphati) and Karabo Jacob Tau (Tau) instituted a damages claim
against the
respondent, the Minister of Police, (the Minister) in
which they alleged that they were unlawfully arrested by the members
of the
South African Police Service (the SAPS). They failed to give
the Minister notice of the claim within the prescribed period, as
prescribed
in terms of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002 (the Act). The Minister filed
a special
plea in which this point was taken and, in response, the
applicants brought an application for condonation of the late filing
of
the notice.
[2]
The applicants sent their section 3 notice on
30 June 2020, about 22 months after the cause of action arose. The
reasons advanced
by the applicants for failure to file their notice
on time is that they were ignorant of the requirement of the Act that
provides
that the relevant notice must be filed within 6 months from
the date on which the debt became due. They only became aware of this
requirement when they consulted with counsel in their matter on 17
March 2020.
[3]
Section 3 of the Act sets out the requirements for giving notice of
the intention to institute
proceedings before issuing a summons
against an organ of the state for the recovery of a debt as follows:
“
(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 proceeding(s)-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subs (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 s
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.”
[4]
In terms of section 3(4)(a) and (b) of the Act, the court may condone
failure to issue a section
3 notice if it is satisfied that:
(i)    the debt
has not been extinguished by prescription;
(ii)   good cause exists for
failure by the creditor;
(iii) the organ of state was not
unreasonably prejudiced by the failure.
[1]
[5]
All these 3 requirements must be satisfied for a court to exercise
its discretion to grant condonation.
[2]
[6]
Since the summons was served on the Respondents within 3 years after
the cause of action arose,
the question of prescription does not
arise. What I have to decide is whether there is good cause shown for
the applicants’ failure
to timeously file their notice of intention
to launch their claim against the respondent and whether the
respondent was unreasonably
prejudiced by failure to give timeous
notice.
[7]
It is a well-established principle that in all cases, whether
statutory or in terms of the
rules of courts, the High Court has an
inherent right to grant condonation where principles of justice and
fair play demand it and
where the reasons for non-compliance with the
time limits have been explained to the satisfaction of the court.
[3]
[8]
The applicants’ Attorneys posted the notice 3 months after the
applicants became aware of
the requirement to file the notice, it
was, however, only received by the respondent 5 months after it was
posted. Mr. Mene, on behalf
of the respondent contended that
ignorance of the law is no excuse. He, further, submitted that the
applicants failed to bring the
application for condonation as soon it
was required to do so. The applicants brought this application 3
months after the respondent
took issue with the late filing of the
application. He, further, contended that the fact that the applicants
proffered no reason
for the delay, firstly in the time period between
the date of knowledge and the date of issuing the notice, secondly
from the date
of plea and the date when the application for
condonation was issued.
[9]
In
Dengetenge
Holdings
Pty
(Ltd) v Southern Sphere Mining and Development Company Ltd and
Others
[4]
Ponnan JA said the following when dealing with factors to be
considered in exercising the discretion to refuse or grant
condonation:
“
[11]
Factors which usually weigh with this court in considering an
application for condonation include the degree of non-compliance,
the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court below,
the
convenience of this court and the avoidance of unnecessary delay in
the administration of justice (per Holmes JA in
Federated
Employers Fire & General Insurance Co Ltd & another v
McKenzie
1969
(3) SA 360
(A)
at 362F-G)."
[10]
In
Darries
v Sheriff Magistrate Court, Wynberg and Another
[5]
the following remarks were made:
“
Condonation of
the non-observance of the rules of this court is not a mere
formality. In all cases, some acceptable explanation, not
only of,
for example, the delay in noting the appeal, but also, where this is
the case, any delay in seeking condonation, must be
given. An
appellant should whenever he realises that he has not complied with a
rule of court apply for condonation as soon as possible.
Nor should
it simply be assumed that, where non-compliance was due entirely to
the neglect of the appellants’ attorney that condonation
will be
granted. In applications of this sort the applicants’ prospects of
success are in general an important though not decisive
consideration. When application is made for condonation it is
advisable that the petition should set forth briefly and succinctly
such essential information as may enable the Court to assess the
appellant’s prospects of success. But appellant’s prospect of
success is but one of the factors relevant to the exercise of the
court’s discretion, unless the cumulative effect of the other
relevant factors in the case is such as to render the application for
condonation obviously unworthy of consideration. Where non-observance
of the Rules has been flagrant and gross an application for
condonation should not be granted, whatever the prospects of success
might be.”
[11]
In
Salojee
and Another NNO v Minister of Community Development
[6]
the following was said:
“
I should point
out, however, that it has not at any time been held that condonation
will not in any circumstances be withheld if the
blame lies with the
attorney. There is a limit beyond which a litigant cannot escape the
results of his attorney’s lack of diligence
or the insufficiency of
the explanation tendered. To hold otherwise might have disastrous
effect upon the observance of the Rules
of this Court. Considerations
ad misericordiam
should
not be allowed to become an invitation to laxity. In fact, this Court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences
of such relationship,
no matter what the circumstances of the failure are.”
[12]
It is well established that
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must be
spelled out.
[7]
[13]
Mr. Bomela, on behalf of the applicants contended that failure to
give a detailed account of delay is
off set by the prospects of
success that the applicants’ case enjoy. The applicants did not
deal with the prospects of success
of their action against the
respondent in the founding affidavit. They dealt with it in the
replying affidavit.  It is the respondent
who shed some light on
what happened on both dates of arrest. I learned for the first time
in the respondent’s answering affidavit
that the arrest of the
first applicant on 6 December 2018 was as a result of a warrant of
arrest issued by a peace officer. The validity
of that warrant of
arrest has not been successfully challenged. In
Bowman
N.O v De Sousa
Roldao
[8]
the court set out the approach to be followed when dealing with the
question of the applicant who failed to make out its case in
the
founding affidavit. The following was said:
“
In limine Mr
Zeiss, who appears for the respondent, argued that the applicant has
not made out a case in the founding affidavit to
entitle him to any
relief in terms of the notice of motion; he submits that there is a
material and fatal lacuna in the founding
affidavit which cannot be
cured. Generally speaking, an applicant must stand or fall by his
founding affidavit; he is not allowed
to make out his case or rely
upon new grounds in the replying affidavit. See, for example,
Director of Hospital Services v Mistry
1979 (1) SA 626
(A) at 635 in
fin - 636 where Diemont JA said the following:
'When, as in this
case, the proceedings are launched by way of notice of motion, it is
to the founding affidavit which a Judge will
look to determine what
the complaint is. As was pointed out by Krause J in Pountas' Trustee
v Lahanas
1924 WLD 67
at 68 and as has been said in many other cases
"... an
applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible
to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts
stated therein, because
those are the facts which the respondent is called upon either to
affirm or deny".
Since it is clear
that the applicant stands or falls by his petition and the facts
therein alleged.
"it is not
permissible to make out new grounds for the application in
the replying
affidavit".'
What should be set
out in the founding affidavit and the particularity required has been
dealt with in a number of cases; see, for
example, Joseph and Jeans v
Spitz and Others
1931 WLD 48
; Victor v Victor
1938 WLD 16
at 17 and
Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and
Others
1974 (4) SA 362
(T) at 369B. Each case will depend on its own
facts. The correct approach is set out in the Titty's Bar case supra
as follows:
'It lies, of course,
in the discretion of the Court in each particular case to decide
whether the applicant's founding affidavit contains
sufficient
allegations for the establishment of his case. Courts do not normally
countenance a mere skeleton of a case in the founding
affidavit,
which skeleton is then sought to be covered in flesh in the replying
affidavit.'
This type of
objection must be considered on the basis of an exception to a
declaration or a combined summons.
The relevant
considerations are:
(a)   the
founding affidavit alone is to be taken into account;
(b)   the
allegations in the founding affidavit must be accepted as established
facts;
(c)   are
these allegations, if proved, sufficient to warrant a finding in
favour of the applicant?
”
[14]
The applicants must stand or fall by their pleaded cause of
action.
[9]
The information in
the applicants’ founding affidavit is scanty on circumstances
surrounding their arrest. The applicants, in their
founding
affidavit, refrained from setting out facts on the merits of their
claim to enable me to determine whether there are any
prospects of
success.
[15]
The applicants submitted that the respondent has not shown any
prejudice to his ability to properly investigate
this case. The
applicants showed that the criminal trial is ongoing and the relevant
witnesses are still testifying in the criminal
trial. The argument
that the respondent will find it difficult to properly investigate
the matter because memories of the relevant
witnesses fade with time
is unsubstantiated regard being had that they are available to
testify in the criminal trial.
[16]
Good cause denotes the obligation on the applicant to place before me
facts which are reasonable and
plausible to enable me exercise my
discretion. Such facts were absent in the founding affidavit. As a
result of the applicants’
failure to explain the delay and
existence of prospects of success, I am unable to find that good
cause exists for condonation to
be granted. As regards to costs,
there is no reason to depart from the general rule that costs must
follow the result. The matter
is not complicated, it does not justify
the employment of two counsel by the respondent.
[17]
I make the following order:
1.
The application for condonation is dismissed with costs.
2.
Costs to include those occasioned by the employment of one counsel.
N.M. MBHELE, AJP
Appearances:
For the
Plaintiff/Respondent:
Adv. L. Bomela
Instructed by MDP
Attorneys
Bloemfontein
For the
Defendant/Applicant:
Adv. B. S. Mene SC with
Adv. M. T. Lebuso
Instructed by State
Attorney
Bloemfontein
[1]
Section
3:
“
(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.”
[2]
Minister
of Safety and Security v De Witt 2009 (1) SA 457 (SCA) at par. 13
[3]
Erasmus;
Superior Court Practice B1; 359 – 360.
[4]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd & Others (619/12) 2013 (2) All
SA 251 (SCA).
[5]
Darries
v Sheriff Magistrate’s Court, Wynberg and Another
[1998] ZASCA 18
;
1998 (3) SA 34
(SCA) at 40H-41E.
[6]
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA 135
(A).
[7]
Uiten
hage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
[8]
Bowman
N.O. v De Souza Roldao
1988 (4) SA 326
T at 327.
[9]
Khumalo
and Another v Member of the Executive Council for Education: Kwazulu
Natal
2014 (5) SA 579
(CC) at par. 90.