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2022
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[2022] ZAFSHC 246
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Malebo v Minister of Police and Others (446/2019) [2022] ZAFSHC 246 (26 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
446/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SELLO
JOHN MALEBO
Plaintiff
and
THE
MINISTER OF
POLICE
First
Defendant
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
Second
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Third
Defendant
JUDGMENT
BY:
REINDERS
ADJP
HEARD
ON
: 12
MAY
2022
DELIVERED
ON:
26 JULY 2022
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and released to SAFLII. The
date
and time for hand-down are deemed to be 16:00 on 26 July 2022.
[1]
This is an opposed application for
condonation in terms of Sec 3(4) of the Institution of Legal
Proceedings against Certain Organs
of State Act, 40 of 2002 ("the
Act"). The applicant is the plaintiff in the main action ("the
main action")
under case number 446/2019 and the respondents are
the defendants in the main action. For sake of clarity I will refer
to the parties
as in the main action.
[2]
The plaintiff instituted action against
the defendants in January 2019, claiming damages for his alleged
unlawful arrest and detention,
and malicious prosecution. In his
particulars of claim plaintiff avers that, prior to the institution
of the proceedings, he duly
complied with the provisions of the Act.
[3]
At the commencement of hearing the
application, plaintiff indicated that he had withdrawn his action
against the first defendant.
Although first defendant requested costs
of the day, in my discretion I do not intend to grant such costs.
Reference to second
and third defendants would hereafter be
collectively "the defendants".
[4]
On 6 June 2019 the defendants delivered
their plea. A special plea was raised denying that plaintiff complied
with the provisions
of s 3(1) of the Act in that plaintiff failed to
give written notice of his claim within six months from date on which
the cause
of action arose as required by the Act, alternatively
(regarding the third defendant) a notice that was served (if any) was
not
served within six months from date of which the cause of action
arose.
[5]
The defendants by way of an affidavit of
the state attorney oppose the application
on the basis that the plaintiff
has failed to establish
a good cause for his non-compliance with
the Act and has failed to prove that the defendants will not suffer
unreasonable prejudice
due to the delay in serving them with the
required notice. Reliance in particular is placed thereon that
plaintiff does not deal
with good prospects of success on the merits
of his claim and a lack on particularity in explaining the delay in
filing the required
notice.
[6]
Sec 3 (4) of the Act provides for
condonation and reads as follow:
(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.
(c)
...
[7]
It was held in
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) that the
court may grant an application for condonation if satisfied that the
three requirements have been met. The test
in doing so are not proof
on a balance of probabilities, but "the overall impression made
on a court which brings a fair mind
to the facts set up by the
parties." [at para 8]
7.1
The requirement of 'good cause' involves
an examination of 'all those factors which bear on the fairness of
granting the relief
as between the parties and as affecting the
proper administration of justice', and may include, depending on the
circumstances,
'prospects of success in the proposed action, the
reasons for the delay, the sufficiency of the explanation offered,
the bona tides
of the applicant, and any contribution by other
persons or parties to the delay and the applicant's responsibility
therefor'[at
para 10]
7.2
At para [12) Heher JA held that good
cause for delay is not 'simply a mechanical matter of cause and
effect' but involves the court
in deciding 'whether the applicant has
produced acceptable reasons for nullifying, in whole, or at least
substantially, any culpability
on his or her part which attaches to
the delay in serving the notice timeously'; and in this process,
'[s]trong merits may mitigate
fault; no merits may render mitigation
pointless'."
See
also:
Minister of Agriculture and Land Affairs v CJ Ranch
(Pty)
Ltd2010
(4)
SA 109 (SCA) at para [37).
[8]
Applying the above principles to the
merits of the application I am inclined to grant such condonation. It
is not contested that
he plaintiff's claims against the second and
third defendants had not prescribed at the time when the action was
instituted. The
plaintiff's claim was only completed on his acquittal
on appeal. It is uncontested that thereafter he consulted an attorney
who,
on the plaintiff's version, agreed to assist him on a
contingency basis. Although there might be criticism levelled against
the
plaintiff's lack of setting out with particularity the dates of
requests to his attorney for assistance in instituting possible
legal
action, I have been satisfied that he did not display a flagrant
disregard for the provisions of the Act, nor are any of
his actions
indicative of him not having an interest in proceeding with his
intended legal action against the defendants.
[9]
The notice in terms of s 3(2) was sent
to the second and third defendants at a time when the delivery
thereof was late for a period
of approximately two months. The
pleadings have been closed and second and third defendants have filed
their plea on the merits.
On a reading of the judgment (leading to
plaintiff's acquittal on appeal) the merits in the main claim seems
to be uncomplicated,
it being common cause therein that the plaintiff
and the complainant on the rape charge had intercourse -
the dispute ostensibly whether she gave
permission thereto and/or was in a state of sobriety to do so.
Whether the Director of Public
Prosecutions could have been malicious
in those circumstances to prosecute is a question for the trial court
to adjudicate and
I will refrain from expressing any prima facie
views thereon.
[10]
In its opposing affidavit third respondent avers that some of its
witnesses might not be available
any more wherefore it would suffer
prejudice. Not only were no names furnished of such witnesses, but it
is difficult to imagine
how the giving of the notice two months
earlier (and therefore the need for condonation) would have changed
the availability or
otherwise of such witnesses now. The contention
of the possibility of the unavailability of witnesses on the evidence
adduced,
appears to me not to be based on solid facts. Taking into
account all relevant considerations, I am satisfied that the
plaintiff
has shown good cause for his failure to timeously give the
notice as prescribed by the Act.
[11]
Although the plaintiff moves for an
indulgence which would normally result in liability for payment of
the costs of the application,
I am of the view that in proceedings of
this nature where a litigant is not vexatious but approaches the
court to vindicate his
alleged claims for damages, such a cost order
would not be warranted. The defendants however in my view was not
unreasonable in
opposing the application. I deem an appropriate cost
order to be that each party be liable for its own costs.
[12]
I therefore make the following orders:
1.
The application succeeds.
2.
Condonation is granted for the
applicant's failure to serve 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 section
3(2) of the Act.
3.
Each party to pay its own costs.
C
REINDERS, ADJP
For
the plaintiff:
Adv
ND Khoko
Instructed
by:
Mlozana
Attorneys
BLOEMFONTEIN
For
the first defendant:
Adv
Z Nyezi
Instructed
by:
State
Attorney
BLOEMFONTEIN
For
the second and third defendants: Adv
NM Phakama
Instructed
by: State
Attorney
BLOEMFONTEIN