• Law Reports
  • Mofolo v Minister of Police (3994/2020) [2022] ZAFSHC …

Mofolo v Minister of Police (3994/2020) [2022] ZAFSHC 236 (21 September 2022)

80 Reportability
Administrative Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Condonation — Application for condonation for late notice — Applicant seeking relief under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 — Applicant arrested during student protests while five months pregnant — Notice of claim sent over two years after incident — Respondent arguing inordinate delay and lack of explanation — Court finding applicant failed to provide adequate reasons for delay and no good prospects of success in underlying claim — Application for condonation dismissed.

Comprehensive Summary

Summary of Judgment


Introduction


This judgment concerns an opposed motion application for condonation relating to non-compliance with the statutory notice requirements applicable to litigation against an organ of state. The applicant sought an order excusing her failure to comply with the time periods and/or manner of service prescribed for the delivery of notice to the relevant state department, alternatively an order affording the respondent a further period to investigate and decide whether to accept, reject, or settle the contemplated claim.


The parties were Pakiso Innocentia Mofolo (applicant) and the Minister of Police (respondent). The matter was heard in the High Court of South Africa, Free State Division, Bloemfontein (Mathebula J) on 28 July 2022, with judgment delivered electronically on 21 September 2022 under case number 3994/2020.


The dispute arose from an incident on the University of the Free State campus during student protest activity in October 2017, culminating in the applicant’s arrest and detention. The contemplated “main claim” (for which the notice was required) was a damages claim against the Minister of Police, arising out of the arrest and detention. The immediate question before the court, however, was not the merits of that damages action, but whether the applicant should be condoned for delivering the statutory notice significantly outside the prescribed time period.


Material Facts


The applicant was a registered law student at the University of the Free State. On or about 20 October 2017, she was studying in a study room near the Sasol Library when a group of student protesters disrupted her and compelled her to leave. She then left the campus for her residence.


The papers reflected that there was more than one group of protesters and that general commotion followed. Police and campus control intervened and fired shots to disperse protesters. The applicant stated that she, together with others, took refuge in nearby buildings.


It was common cause that the applicant was arrested later that day and detained at Bainsvlei Police Station. It was also common cause that at the time she was five months pregnant, and that she was released on own recognisance, with her pregnancy appearing to be the reason for that release.


The applicant approached her attorneys only in May 2020 with instructions to institute a damages claim against the Minister of Police. The applicant’s explanation for not acting earlier was that she was unaware that she had a potential claim. A notice purportedly in terms of section 3 of the relevant statute was sent by her attorneys on 4 May 2020.


The respondent contested condonation. The respondent’s affidavit asserted, in summary, that the arrests (including that of the applicant) were lawful, and relied on the existence of a court order (an interdict obtained in the context of the protest activity) which, on the respondent’s version, justified police action. The respondent emphasised that the statutory notice was delivered more than two years and six months late, and contended that such a delay required a cogent and full explanation, which was said to be absent. The respondent also alleged practical prejudice arising from the passage of time, including that police personnel involved had retired or resigned and were no longer in the respondent’s service.


Where the parties diverged, the dispute was not about whether a late notice had been given (this was not in issue), but about whether the applicant had provided a sufficient explanation for the delay and whether there were prospects of success in the contemplated damages claim such as to justify the indulgence of condonation. The respondent further took issue with the applicant’s emphasis on the conduct of university security, while the university was not joined.


Legal Issues


The central legal questions were whether the applicant had made out a proper case for condonation for late service of a statutory notice under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, and, if condonation were not granted, whether any alternative procedural relief (a period for investigation and decision-making) should be ordered.


These questions were primarily concerned with the application of established legal requirements to the facts placed before the court, combined with a discretionary or evaluative assessment typical of condonation proceedings. The court had to evaluate, on the papers, whether the applicant’s explanation met the standard required for condonation (a value-laden assessment of adequacy and candour), and whether the applicant’s articulated prospects of success were sufficiently strong to justify indulgence, particularly in circumstances of extensive delay.


A further issue arose from the applicant’s reliance on a purposive approach to similar statutory provisions, drawing on authority concerning non-mechanical interpretation. The court had to determine whether that approach materially assisted the applicant in meeting the requirements for condonation on the facts presented.


Court’s Reasoning


The court approached the matter on the footing that an application for condonation is an indulgence and is not granted merely because it is asked for. It emphasised that a founding affidavit must contain adequate information to enable the court to exercise its discretion, and that the dates and chronology are particularly important in time-related non-compliance. The court stated that an applicant is expected to “take the court into her confidence” through a frank disclosure, providing a full, detailed, and accurate account of the delay, supported by cogent reasons that address culpability for the non-compliance.


On the facts, the court found that the delay was inordinately long. It held that the applicant’s explanation was materially deficient: the papers did not provide a detailed or plausible account explaining why approximately two years passed without action, and where an explanation was offered, it was framed in general statements without adequate engagement with specific periods. The court noted that there were “gaps” in the account, including an extent of unexplained time amounting to roughly a year. The asserted focus on a criminal matter (which was described as having been postponed several times and, on the respondent’s argument, withdrawn in 2018) was not explained in a way that demonstrated how it prevented the applicant from pursuing civil remedies or complying with the notice requirement.


The court rejected the applicant’s contention that she did not act earlier because she was unaware that she had been wronged or had a claim. It treated this as far-fetched and untenable, invoking the principle that ignorance of the law is not an excuse. The court accepted the respondent’s submission that elevating such ignorance to a sufficient explanation would undermine compliance with statutory time limits.


In addressing the submission that strong merits may mitigate fault, the court acknowledged that this principle has been recognised, but it found that the applicant’s prospects of success were also weak. In relation to the applicant’s argument that the university’s court order did not apply to her, the court held that this contention was without merit because the order prohibited everyone on the university grounds from disturbing the peace. It therefore did not accept that the court order could not be used in the circumstances described.


The court further addressed the applicant’s alternative contention that there was no reasonable suspicion that she had committed any wrong. It noted that in her own founding papers the applicant placed herself on the scene and described herself as being in the company of protesters who engaged in conduct characterised as malicious damage to property or public violence, and that she “actively associated” herself with them. On that factual account, the court considered it unrealistic to expect police to obtain a warrant to arrest persons committing offences in their presence. It also observed that the applicant described the impact of the arrest on her, but did not set out a factual basis establishing that the arrest was unlawful. On this basis the court concluded that there were no good prospects of success.


The applicant’s reliance on Minister of Police and Others v Molokwane was treated as misplaced. The court summarised Molokwane as concerning a narrow question: whether omission to serve a copy of summons properly issued rendered it a nullity, in the context of non-compliance with section 2(2) of the State Liability Act 20 of 1957, and the adoption of a purposive approach consistent with constitutional values. The court held that Molokwane did not dispense with the requirements applicable to condonation applications and could not be used as authority to grant condonation where the applicant had failed to meet those requirements.


Having found the explanation non-existent or inadequate and the merits weak, the court considered that the application could be refused on that basis. It then turned to costs and applied the general principle that costs follow the result, finding no basis to depart from it.


Outcome and Relief


The court dismissed the application for condonation (and thus refused the alternative relief sought). The applicant was ordered to pay the respondent’s costs.


Cases Cited


Minister of Defence and Military Veterans and Others v Public Servants Association and Others (2022) 43 ILJ 633 (LAC) at para 39.


Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at 297H–J.


Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at para 51.


Minister of Police and Others v Molokwane (730/2021) [2022] ZASCA 111 (15 July 2022).


Legislation Cited


Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, section 3 (and reference to Schedule 3 and/or 4 in the relief sought).


State Liability Act 20 of 1957, section 2(2).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the applicant failed to provide a full, detailed, and accurate explanation for an inordinately long delay in delivering the statutory notice required for proceedings against an organ of state. The explanation advanced—primarily ignorance of a potential claim and general references to focus on criminal proceedings—was found inadequate. The court further held that the applicant’s prospects of success in the contemplated damages claim were weak on the facts set out in her own papers, including the applicability of the court order regulating conduct on campus and the circumstances giving rise to police intervention. The application was dismissed with costs.


LEGAL PRINCIPLES


Condonation for non-compliance with statutory time requirements is an indulgence and is not granted merely upon request. An applicant must provide a frank, full, detailed, and accurate explanation covering the entire period of non-compliance, particularly where the delay is extensive. In time-related non-compliance, the explanation should clearly address the date, duration, and extent of the delay.


A bare or generalised explanation, especially where substantial periods remain unaccounted for, is insufficient. Where an explanation is materially lacking, this may justify refusal of condonation; while strong merits may in some circumstances mitigate fault, weak prospects of success do not assist an applicant who has not properly explained the delay.


A purposive approach to procedural or statutory requirements (as discussed in authority concerning service requirements) does not dispense with the substantive requirements that govern condonation applications. Ignorance of legal rights or remedies, treated as “ignorance of the law,” is not accepted as a sufficient explanation for failure to comply with statutory notice periods.

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 236
|

|

Mofolo v Minister of Police (3994/2020) [2022] ZAFSHC 236 (21 September 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3994/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PAKISO
INNOCENTIA MOFOLO
Applicant
and
MINISTER
OF POLICE
Respondent
HEARD
ON:
28
JULY 2022
CORAM:
MATHEBULA,
J
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII

on 21 SEPTEMBER 2022. The date and time for hand-down is deemed to be
21 SEPTEMBER 2022 at 16H00.
[1]
These are opposed motion proceedings. In the instant application, the
order sought
is couched in the following terms: -
“
1.
Condonation for failing to adhere to time frames and/or form of
service be granted in terms of Schedule
3 and/or 4 of the
Institution
of Legal Proceedings Against Certain Organs of State Act 40 of 2002
;
2.
Alternatively, that the respondent be given 30 days within which to
investigate the matter
and decide whether it wishes to accept, reject
or settle the applicant’s main claim;
3.
Costs in the event of opposition; and
4.
Further and/or alternative relief.”
[2]
The factual basis of the application drawn from the papers is as
follows. The applicant
is a registered law student at the University
of the Free State. Around 20 October 2017, she was studying for the
upcoming examination
in one of the study rooms near the Sasol
Library. She was interrupted by a group of student protesters who
forced her to abandon
her mission and she left campus for her
residence.
[3]
There was more than one group of protesters and general commotion
ensued. The police
and campus control intervened and fired shots to
disperse the protesters. Together with others she took refuge in the
nearby buildings.
It is common cause that at the end of the day she
was arrested and kept in custody at Bainsvlei Police Station. At the
time she
was five (5) months pregnant and this seems to be the reason
why she was released on her own recognizance.
[4]
Sometime in May 2020, she
approached her attorneys of record and instructed them to institute
a
claim for damages against the respondent. The only reason why she did
not act earlier is simply that she was unaware that she
had a
potential claim. The notice in terms of section 3 of the Institution
of Legal Proceedings Against Certain Organs of State
Act 40 of 2002
(Act 40 of 2002) was sent by her attorneys on 4 May 2020. In a
nutshell these are the facts that underpins her application.
[5]
In response to the allegations in the founding affidavit, the sworn
affidavit on behalf
of the respondent sets out in detail the events
leading to the granting of the interdict. Having set out this summary
of facts,
the respondent disputes any allegation that members of the
police service acted in an unlawful manner when they effected the
arrests
including the one of the applicant. On the issue of the
required notice, it was pointed out that it is more than two (2)
years
and six (6) months late. Therefore, such an inordinate delay
requires a cogent and full explanation. In this matter such
clarification
is lacking.
[6]
The deponent also canvassed the point that there were no prospects of
success. The
allegations made are that the applicant was contravening
the court order and the invocation of police powers was justified in
the
circumstances. He took issue with the fact that although the
applicant went to great lengths pointing an accusing finger at the

university security officers, the university was not joined as a
party to the proceedings.
[7]
Both counsel made compelling submissions which are worth repeating
here. Mr Naidoo
based his contentions on the fact that the
applicant was arrested without a warrant. Therefore, the onus shifts
to the respondent
to show that the arrest was lawful. The respondent
must then rebut the presumption that the arrest was unlawful. Another
point
to fortify his submission was that there were good prospects of
success. On this one he pointed out that the final court orders
did
not apply to the applicant. As such they could not be used as a
justification for the arrest of the applicant.
[8]
Perhaps on realisation that this argument may be unsustainable, he
submitted that
the court orders did not give authorisation to the
police to effect arrests. There was no reasonable suspicion that the
applicant
had committed any crime.
[9]
He argued that the reason for the delay is that the applicant was
preoccupied with
the criminal trial which took a long time. She was
unaware that she could institute a claim for damages against the
respondent.
Conceding rather vaguely that the reasons advanced on
this aspect might be inadequate, he argued rather forcefully that
strong
merits may mitigate fault. This has been considered favourable
by the courts in a number of decided matters.
[10]
The most important contention he made, whilst accepting the facts as
they are, is that he referred
to the proper approach that must be
adopted by the court in matters of this nature. The purpose of the
notice, he argued, was to
give a department of State sufficient time
to null over various possibilities when confronted with impending
litigation. The key
decision being whether to defend or settle the
lis
. In the present matter, he submitted that the facts
favoured the applicant. He beseeched the court to adopt a purposive
approach
and penalize the applicant with costs for mounting an
unreasonable opposition to the application.
[11]
Mr Masihleho, who appeared on behalf of the respondent, submitted
that the applicant had failed
to make out a case for the relief
sought. He argued that the applicant does not give reasons why the
notice was not issued within
six (6) months starting from
the date of the incident on 20 October 2017. He too, referred to the
underlying reasons
why litigants must file the notice to a department
of State as required by law.
[12]
He pointed out that a lackadaisical approach to this issue would
undoubtedly result in unreasonable
prejudice to the respondent. The
reality is that the respondent is beset with many peculiar
circumstances like high staff turnover
and penchant for chance takers
to initiate frivolous litigation. In this matter, the respondent is
faced with a real problem that
the personnel who were involved have
either retired or resigned. They are no longer within the service of
the respondent.
[13]
He submitted that the delay in this matter was inordinately long. The
conundrum is compounded
by the lack of explanation on the part of the
applicant. He specifically pointed out that the applicant does not
explain what she
did in 2017 to 2019 in order to give effect to her
rights. His contention was that the explanation that her main focus
was on the
matter which was withdrawn in 2018 equates to
non-explanation. She did not even attempt to explain how that
inhibited her from
setting the wheels of justice in motion.
[14]
He added that the assertion by the applicant that she was unaware
that she could enforce her
rights is a non-explanation. If this is
somehow elevated to the status of an explanation, it will mean that
no one will be on the
wrong side of compliance. Therefore, in cases
where there is no explanation, like the instant one, the court should
not even bother
to look at the prospects of success.
[15]
Another argument was that the prospects of success were not on the
side of the applicant. Her
focus was only on the conduct of the
police and no reference to other criminal acts alleged against her
viz
malicious damage to property and public violence.
Importantly, she placed herself on the scene, ran away with the
protesters as
well as hid herself away with them. This association
meant that she was a party to criminality on the day in question.
[16]
A court considering an application of this nature must be satisfied
that all the requirements
have been met. The founding affidavit must
contain adequate information necessary to grant the appropriate
relief. The dates are
important and it is incumbent on the applicant
to deal with them in a manner that leaves no doubt at all. Primarily
in an application
for condonation, the applicant is seeking an
indulgence from the court. It is expected that the applicant must
take the court in
her confidence and make a frank disclosure. The
courts have over the years held that an application for condonation
is not there
for the taking by merely requesting for it.
[1]
[17]
There is no doubt that the delay under discussion is inordinately
long. The applicant carries
the responsibility to explain the delay
before and after the summons were issued. What is required of an
applicant is to give a
full, detailed and accurate account of the
delay. This means that there must be cogent reasons which nullify any
culpability on
the part of the applicant for the delay.
[2]
In particular where non-compliance is time-related, the courts have
reiterated that clear explanation on the date, duration and
extent
must be spelled out.
[18]
The case for the applicant is weak on this aspect. The paucity of the
information in the papers
is startling. The applicant does not give a
detailed or plausible explanation why a long period of two (2) years
went by without
any action on her part. Where she proffers some kind
of an explanation, it is a general statement with no focus on any
date or
time. There are gaps in the papers to an extent that a full
year remains unexplained. It is unclear to what extent her focus on

the criminal matter that was postponed several times literally
inhibited her from giving effect to her rights.
[19]
This application is as though the applicant genuinely believed that
by merely requesting, it
will be granted. The argument that she did
not know that she was wronged stands to be rejected because it is
far-fetched and untenable.
It is a doctrine of law that ignorance of
the law is not an excuse. I agree with counsel for the respondent
that if this argument
was to pass master, then the floodgates for any
person escaping accountability relying on it will be open.
[20]
Confronted with such non-existent explanation, it is enough to deny
the application.
[3]
However, it
has been held that strong merits may mitigate fault. In the instant
matter the prospects of success are equally weak.
The argument that
the court order obtained by the university did not apply to the
applicant is bereft of any merit. The court order
prohibited everyone
on the university grounds from disturbing the peace there.
[21]
The alternative argument is that there was no reasonable suspicion
that the applicant has committed
any wrong. In her founding papers
the applicant places herself on the scene of crime. She was in the
company of the so-called protesters
who either maliciously damaged
property or engaged in acts of public violence. She actively
associated herself with them.
In the circumstances described in her
papers, it is preposterous to expect the police to arrest a person
committing a crime in-front
of their eyes with a warrant. Again the
applicant explained the effect the arrest had on her without
explaining the grounds that
render it unlawful. The conclusion is
that there are no good prospects of success.
[22]
The gist of the argument on behalf of the applicant is thinly based
on the purposive approach
adopted by the Supreme Court of Appeal in
the case of
Minister
of Police and Others v Molokwane
.
[4]
In that matter, the nub of the appeal was whether the omission by the
respondent to serve a copy of a summons properly issued rendered
the
summons a nullity. The issue was the non-compliance of the respondent
with
section 2(2)
of the
State Liability Act 20 of 1957
. The court
concluded that interpretation of similar provisions by our courts
must not be mechanical and favoured a purposive approach
which is in
sync with our constitutional values.
[23]
Reliance on the Molokwane judgment as authority that condonation in
this matter should be granted
is misplaced. There the court was
saddled with a narrow issue as stated in paragraph 22
supra
.
The court did not in any way jettison the requirements in an
application for condonation that must be complied with to entitle
the
applicant the relief sought. This argument is not meritorious.
[24]
What remains is a question of costs. There is no reason advanced as
to why the losing party should
not pay the costs. Therefore, the
court shall not depart from the principle that costs follow the
result.
[25]
The following order is made: -
25.1.
The application is dismissed and the applicant must pay the costs.
M.A.
MATHEBULA, J
On
behalf of the applicant:
Adv.

K. Naidoo
Instructed
by:

Makubalo Attorneys
BLOEMFONTEIN
On
behalf of the respondent:                    Adv.

P.T. Masihleho
Instructed
by:                                            State

Attorney
BLOEMFONTEIN
[1]
Minister of Defence and Military Veterans and Others v Public
Servants Association and Others (2022) 43 ILJ 633 (LAC) at para
39.
[2]
Uitenhage Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA) at  297H-J.
[3]
Grootboom v National Prosecuting Authority and Another
2014 (2) SA
68
(CC) at para 51.
[4]
(730/2021)
[2022] ZASCA 111
(15 July 2022).

Back to Law Reports