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[2022] ZAFSHC 200
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Ndlovu v Minister of Police (5908/2018) [2022] ZAFSHC 200 (17 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5908/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SIBUSISO
PRESLEY NDLOVU
Applicant
And
THE
MINISTER OF POLICE
Respondent
HEARD
ON:
26
MAY 2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 15h00 on 17 August 2022.
[1]
On 23 November 2018 the applicant issued summons against the
respondent for payment
of an amount of R500 000.00 as damages he
allegedly sustained as a result of being unlawfully arrested on 7 May
2017 and thereafter
detained for a month.
[2]
The applicant’s summons was preceded by a written notice of
intention to sue
(“the notice”) as contemplated in
section 3 of the Institution of Legal Proceedings against Certain
Organs of State
Act
[1]
(“The
Act”).
[3]
The respondent defended the action and in addition to the plea, the
respondent raised
a special plea objecting to the applicant’s
non-compliance with the provisions of section 3(2)(a) of the Act
contending that
the applicant’s notice was not served within
six months from the date the debt became due as prescribed in section
3(2)(a).
[4]
Section 3(1) (a) and 3(2) (a) of the Act clearly states that no legal
proceedings
for the recovery of a debt may be instituted against an
organ of state unless the creditor has given the organ of state in
question
a written notice of his/her intention to sue it within six
months from the date the debt became due.
[5]
The underlying principle for the requirement of prior notification of
intention to
sue is premised on the recognition that: “
with
its extensive activities and large staff which tends to shift, it
needs the opportunity to investigate claims laid against
it, to
consider them responsibly and to decide before getting embroiled in
litigation at public expense, whether it ought to accept,
reject or
endeavour to settle them.
”
[2]
[6]
Except for the disputed date of arrest,
[3]
it is common cause that the requisite notice was only served on the
respondent on 31 August 2018 well over a period of about 12
months
after the date on which the applicant alleges the debt became due
namely, 7 May 2017.
[7]
In this application the applicant seeks a declaratory order that he
has complied with
the requirements of section 3(2) (a) in the
alternative, he seeks condonation for his non-compliance.
[8]
The applicant’s assertion that he has complied with the
provisions of the Act
is unsound. On the facts germane to this matter
it is clear that the notice was not served within the six months’
period
prescribed by section 3(2) (a).
[9]
In terms of section 3(4)(b) the court has a discretion to condone
non-compliance in
respect of the delivery of the notice if the
applicant satisfies the court that the debt which forms the basis of
his claim has
not been extinguished by prescription, good cause
exists for the failure to serve the notice timeously and the
respondent was not
unreasonably prejudiced by the failure.
[10]
It has been pointed out in
Madinda
v Minister of Safety and Security
[4]
that the phrase “
if
the court is satisfied
”
does not require proof on a balance of probabilities “
rather
it is the
overall
impression made on a court which brings a fair mind to the facts set
up by the parties.”
[11]
In this matter, it is not in dispute that the applicant’s claim
has not prescribed therefore
for the applicant to succeed with this
application, he must simply show that good cause exists for the
failure to serve the notice
timeously and that the respondent was not
unreasonably prejudiced by the late notice.
[12]
Good cause involves “
all those
factors which bear on the fairness of granting the relief as between
the parties and as affecting the proper administration
of justice.
These factors may include prospects of success in the proposed
action, the reasons for the delay, the sufficiency of
the explanation
offered, the bona fides of the applicant and any contribution by
other persons or parties to the delay and the
applicant’s
responsibility therefor
.” See
Madinda
at
para 10.
[13]
These factors are not individually decisive but interrelated in that,
they must be weighed one against
the other. Thus a slight delay
and a good explanation may help to compensate for prospects of
success which are not strong or,
strong merits may mitigate fault.
[5]
[14]
In his founding affidavit, the applicant alludes to various factors
which he contends caused
the delay in serving the notice namely that:
he only became aware of his right to claim damages against the
respondent after he
was informed by his erstwhile attorney Mr
Mofokeng during March 2018. Mr Mofokeng referred him to his present
attorneys Messrs
Herman Podbielski and Sam Maqalo however, he only
consulted with Mr Maqalo on 6 August 2018 due to lack of financial
means to appoint
an attorney. He states that since the case was
merely withdrawn he decided to wait and see whether the charges will
be reinstated
or not before instituting the action. After consulting
Mr Maqalo, he (Mr Maqalo) had to investigate the merits of the claim
before
instituting the action with the result that the notice was
only transmitted to the respondent on 31 August 2018. The delay in
launching
the condonation application was occasioned by the lockdown
imposed pursuant to the National State of Disaster to curb the spread
of Covid-19 which caused his attorneys to operate with a limited
number of staff, inability to access emails and to consult with
clients.
[15]
It is the applicant’s case that he has good merits as no
reasonable grounds existed warranting
his arrest and detention.
[16]
The application is opposed on the grounds that the applicant has
failed to provide sufficient
reasons for the delay in serving the
notice and also in launching this application.
[17]
The respondent states that except to allege that he was informed by
his previous attorney about
his claim he does not provide the context
of that conversation. The applicant states that it was only in August
2018 that he consulted
with his attorney for the first time and this
was due to financial constraints but he does not provide any details
with regard
to the specific time when he experienced the alleged
financial constraints and if indeed this is true, there is no
explanation
why he did not utilise the services of the Legal Aid
Board or even approach the Legal Practice Council’s pro-bono
desk. The
applicant was legally represented throughout the criminal
proceedings which are subject of his claim therefore, his attorney
ought
to have advised him accordingly.
[18]
The respondent submits that the applicant has no prospects of success
with his claim as the arrest
was lawful as it was effected by
Constable Machesa (“the arresting officer”) on 7 June
2017 at Welkom court where the
applicant was appearing on an
unrelated charge. The applicant was implicated by his co-perpetrators
and also identified on the
premises’ CCTV camera footage as one
of the robbers of a guest house. The subsequent detention was also
lawful as it was
authorized by the court pending his application for
bail. The applicant was ultimately released on bail on 28 July
2017 where-after
the charges proffered against him were withdrawn.
[19]
It is trite that
good
cause in section 3(4)(b)(ii) is linked to the failure to act
timeously.
The subsequent delays in bringing the condonation application do not
factor in the enquiry of good cause as they did not contribute
to the
delay in serving the notice. They are ‘part of the exercise of
the discretion to condone’ the late notice.
[6]
[20]
With regard to the delay in serving the notice, I’m in
agreement with the respondent’s
contentions that the delay in
serving the notice is extreme while there is a paucity of the details
pertaining to the ineptitude.
On his own admission the applicant was
advised of his rights to institute a claim against the respondent
some 15 months before
the notice was served on the respondent.
Instead of consulting the recommended attorneys he decided to wait
and see if the charges
would be reinstated or not. The applicant’s
conduct is this regard is irrational. Lack of financial means to
consult an attorney
is indeed a valid explanation however, as
correctly pointed out by the respondent’s counsel there is no
explanation why the
applicant did not consult the offices of Legal
Aid for assistance if indeed he was desirous in progressing his claim
against the
respondent. His submission that Mr Maqalo had to first
investigate the merits of the claim before instituting the claim is
illogical
considering the fact that on his own submission Mr Mofokeng
had already told him over 15 months ago that he had a claim against
the respondent. The applicant’s explanation of default and how
it came about is wholly inadequate.
[21]
The fact that the applicant has failed to explain fully and
reasonably the delay in serving the
notice, on its own does not
entitle the court to summarily refuse condonation. The prospects
of success in the proposed action
is also a factor that the court
takes into account as strong merits may mitigate fault.
[7]
[22]
The respondent’s version with regard to the reason and the
circumstances under which the
applicant was arrested is not disputed.
Except to fleetingly aver that the arrest and the detention was
unlawful the applicant
has inexplicably avoided to provide the
details which precipitated his arrest. See paragraphs 5 and 6 of his
founding affidavit
and the particulars of claim, respectively.
[23]
An arrest is
prima
facie
unlawful
[8]
the
onus
rests on the respondent to justify the arrest.
Section
40(1) (b) of the Criminal Procedure Act 51 of 1977 (“The CPA”)
permits a peace officer to arrest a suspect without
a warrant
whom
he reasonably suspects of having committed an offence referred to in
Schedule 1 of the Act.
[9]
Schedule 1 offences include robbery. Concerning the issue of
whether the arresting officer entertained a reasonable suspicion
when
arresting the applicant, the
information
available to the arresting officer at the time that he makes an
arrest is
interpreted
objectively and must be of such a nature that a reasonable person
would have had a suspicion. There must be evidence
upon which the
arresting officer formed this suspicion, in other words, the
arresting officer must also carry out some investigations
into the
essential elements of the offence complained about in order to
qualify the suspicion as reasonable.
[24]
On the available facts, except to aver that the applicant was
implicated by his co-perpetrators
and also identified from the
CCTV
camera footage of the business premises there is no evidence that
there were some investigations that were carried it to qualify
the
suspicion as reasonable to warrant the arrest bearing in mind that at
all material times hereto the applicant was in custody
therefore his
whereabouts were known. The arresting officer had ample time to
conduct his investigations before effecting the arrest.
I’m
thus of the view that
prima facie,
the applicant
has set up a case upon which the respondent’s liability can be
imputed. There are good prospects of success.
[25]
With regard to prejudice, it is the applicant’s case that the
respondent is not prejudiced
by the late notice because it has always
been in possession of the case docket which contains all the relevant
evidence and the
facts relating to the applicant’s arrest. The
respondent was also served with the notice albeit late.
[26]
The respondent countered that prejudice arises from the finances and
human capital of the State
to defend a meritless action when the
resources could be utilized somewhere else. The alleged cause of
action arose about four
years ago, then the claim was delayed for
more than two and a half years. The delay in bringing the condonation
application amounts
to serious prejudice as memories of the witnesses
may have faded, other witnesses might be difficult to find or may be
deceased.
It is also uncertain whether the respondent will be able to
recover its costs in the event that this application is dismissed
with
costs.
[27]
The grounds of prejudice for
receiving the notice out of time are ordinarily within the knowledge
of the respondent.
The
respondent’s contentions are
simply
based on speculative grounds
namely
that:
the memories of the
witnesses may have faded, other witnesses might be difficult to trace
or they may be dead. There is no evidence
that an attempt was made to
trace the witnesses and what was the outcome. Based on these generic
averments, it cannot be said that
the respondent was unreasonably
prejudiced by the late notice.
[28]
In the circumstances, I’m satisfied that a proper case has been
made out for condonation
of
the late filing of the
notice in terms of section 3.
Costs
[29]
The applicant sought the court’s indulgence, there is no reason
why he should not be saddled
with the costs taking into consideration
the inordinate and unexplained delay. The opposition of the
application was not unreasonable.
[30]
The following order is made:
(1)
Condonation
is granted to the applicant for the late service of the notice in
terms of
s
3(1) (a)
of
the
Institution
of Legal Proceedings Against
Certain Organs of State Act, 40 of 2002
.
(2)
The applicant to pay the costs of the application.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
E.G.
Lubbe
Instructed
by: VZLR
INC.
C/O Du Plooy Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Respondent: Adv.
T.T. Ngubeni
Instructed
by: The
State Attorney
BLOEMFONTEIN
[1]
Act 40 of 2002.
[2]
Minister
of Agriculture and Land Affairs v CJ Rance
(PTY)
LTD
2010
(4) SA 109
(SCA) at para 13.
[3]
According to the respondent, the applicant was arrested on 7 June
2017.
[4]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para 8.
[5]
United Plant Hire (Pty) Ltd v Hills and others
1976
(1) SA 717
(A)
page 720 para E-G quoted with approval in
Madinda
at paras 12 and 16.
[6]
Madinda at p
aragraph
14.
[7]
Ibid fn 5 above.
[8]
Section 12(a) of the Constitution of the Republic of South Africa
Act No 108 of 1996.
[9]
Minister of Safety and Security
v
Tyulu
2009 (2) SACR 282
(SCA).