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[2022] ZANCHC 19
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Moeng v Minister of Police (2124/2014) [2022] ZANCHC 19 (18 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2124/2014
Date
Heard: 11/02/2022
Date
Delivered: 18/03/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
PHEMELO
MOENG
Applicant
and
MINISTER
OF
POLICE
Respondent
APPLICATION
FOR LEAVE TO APPEAL: RULING
DAUDS
AJ
[1]
This matter was characterised by several instances of lack of care.
The
matter revolved almost entirely around the provisions of
section
3
of the
Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002
.
[2]
To provide the briefest of background for context. The matter
involves
an application for leave to appeal the Court's decision made
by way of an order dated 06 December 2019 to dismiss the Applicant's
application for condonation. The order was made after extensive
argument was heard on behalf of both the Applicant and Respondent
on
08 November 2019. The Applicant sought condonation for his failure to
comply with the provisions of
section 3(1)
read with (2) of Act 40 of
2002. These two subsections require a potential Plaintiff to give an
organ of State notice of his/her
intention to commence civil action,
and to give such notice within six (6) months of the date on which
the cause of action for
the civil claim arose, or any debt relevant
to the civil action became due.
[3]
It was common cause that the requisite notice was not served on the
Ministry
of Police, an organ of State, within the six months as
required by section 3(2)(a). On 07 May 2013, the Applicant - together
with
a group of other individuals - was, according to the Applicant,
arrested by members of the South African Police Service (SAPS),
and
detained for two days at the Jan Kempdorp Police Station, Northern
Cape. The Applicant was released after making an appearance
in Court.
The matter was adjourned for further investigation. At the time of
the arrest the Applicant was a police officer serving
in the South
African Police Service. The Applicant's case is that the arrest and
detention were unlawful. He accordingly sought
to claim civil damages
from the Respondent, the Minister of Police. To all intents and
purposes therefore, the cause of action
or "debt" for
purposes of Act 40 of 2002 arose on 07 May 2013.
[4]
The requisite 6-month notice was written and dispatched to the
Respondent
on 10 November 2014 (and received by the Respondent's
attorneys, the office of the State Attorney, on 14 November 2014).
That was
18 months after the Applicant's arrest and detention, i.e.
after the cause of action arose or debt became due. The very next
month
though - on 02 December 2014 - summons was issued and served on
the Respondent on behalf of the Applicant commencing legal
proceedings
for civil damages.
[5]
It is worth noting again that this matter was characterised by a
number
of instances of lack of care. According to the Applicant, he
consulted with an attorney, one Mr Ikaneng, on 13 or 17 May 2013. (It
was not clear which date precisely - in his affidavit in support of
the condonation application, the Applicant wrote it was 13
May, but
in his affidavit in support of the application to permit the filing
of a supplementary affidavit he said it was 17 May).
The purpose of
the consultation with the attorney was to explore bringing a civil
claim in respect of the Applicant's alleged unlawful
arrest and
detention.
[6]
Section 3(2)(b) sets the bar for the contents of the 6-month notice
low.
All that is required is that a potential Plaintiff sets out - in
brief form - in the notice:
(a)
the facts giving rise to the "debt"; and
(b)
such particulars of such debt as are within the knowledge of the
"creditor".
[7]
The facts giving rise to the debt were - in brief - the Applicant's
alleged
unlawful arrest and detention. And some of the obvious
particulars which were within the Applicant's knowledge were the date
of
arrest, the place of arrest, the place of detention, the identity
of the police officer or officers who carried out the arrest.
(If the
identity of the arresting officer or officers were not known at the
time of arrest, such information could have been established
relatively easily and almost immediately by the Applicant, who was a
police officer.)
[8]
In other words, by 13 or 17 May 2013, when the Applicant consulted
with
his attorney, Mr Ikaneng, enough information was available for
purposes of the contents of the 6-month notice. Yet, according to
the
Applicant, instead of preparing the 6-month notice and dispatching it
the attorney informed him that before he could properly
advise him on
the prospects of success of his claim, he (the attorney) needed
access to the contents of the police docket. Seemingly,
because the
Applicant was at the time a police officer, the attorney apparently
suggested that he approach the investigating officer
on the matter
and request copies of the contents of the police docket.
[9]
In paragraph 4.8 of his affidavit, in support of the application for
leave
to permit the filing of a supplementary affidavit, the
Applicant acknowledged that he
"should have been aware of the
fact that criminal proceedings were still pending and that
notwithstanding the contemplated
civil action I
would not have
been entitled to
a
full
copy of
the
police
docket,
inclusive
of
all
the
parts
thereof, at
least until
the
criminal matters have reached disclosure stage".
I dare say
even more so, since the Applicant was (and presumably still is) a
police officer and he would have been familiar with
these processes.
Yet, in spite of this, the Applicant involved himself in what the
Court believes was an exercise in absolute futility,
which was very
time-consuming. In paragraphs 12 and 13 of his affidavit in support
of the condonation application, the Applicant
wrote that he
"went
to the Jan Kemp Police Station on
countless number of
occasions with a
view to
request same
[contents
of the police docket].
On each occasion I would be advised that
the investigations are still continuing and as a result I cannot be
furnished with a copy
of the contents of the docket".
In
paragraph 4.9 of his affidavit, in support of the application for
leave to permit the filing of the supplementary affidavit,
the
Applicant wrote
"The
only
way in which I could
have obtained a portion of the docket at that stage was
when
the
criminal
proceedings proceeded to
the
phase
where
the State
had
to
disclose
to
an
accused
as
per
the
Criminal
Procedure Act. Even at that stage my
attorney would not have been in a position to obtain the full docket
and would have received
[only]
the portion of the docket that
contains all the statements.
My attorney would not have been
placed in possession of the investigative diary and various documents
which
is
[are]
quintessential
in
considering the
merits
of
an unlawful
arrest".
As far as the Court is concerned, it is not
far-fetched to conclude that the Applicant would have known all this
by virtue of his
position and experience as a police officer. Yet, he
undertook a time-consuming and futile exercise to obtain something
which he
himself must have been fully aware was not possible at that
stage.
[10]
Presumably because he was not happy with his first attorney, Mr
Ikaneng, the Applicant
then approached a second attorney, Mr Isang
Nakale, of Isang Nakale Incorporated. It was Mr Nakale who wrote the
requisite 6-month
notice - on 10 November 2014 - and dispatched it to
the Respondent's lawyers at the office of the State Attorney, who
acknowledged
receipt thereof on 14 November 2014. The very next
month, on 02 December 2014, Mr Nakale issued summons and had it
served on the
Respondent through the office of the State Attorney.
And therein lies the problem. Section 3( 1) of Act 40 of 2002 is very
clear:
"No legal
proceedings for the recovery of a debt may be instituted against an
organ of state unless:
(a)
the creditor
[the person who intends to institute legal
proceedings against an organ of state]
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..."
And according to section
3(2):
"A notice must-
(a)
within six months from the date on which the debt became
due, be
served on
the organ of state ...;
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''
[11]
It is common cause that when legal proceedings were commenced with
against the Respondent,
notice of the Applicant's intention to
institute the legal proceedings had not been served within the
requisite 6 months of the
date that the cause of action arose, or the
debt had become due. The Applicant was arrested and detained on 07
May 2013. His notice
was only written and dispatched to the
Respondent's attorneys on 10 November 2014 - 18 months later. Summons
was issued and served
on 02 December 2014. An application to condone
the Applicant's failure to comply with the 6-month notice requirement
set forth
in section 3(2)(a) was only brought on 23 July 2015 by
Isang Nakale Incorporated. Legal proceedings had by then already been
commenced
with against the Respondent. This raises the question
whether the summons issued and served on the Respondent was
defective, and
therefore to all intents and purposes non-existent -
at least until the defect was cured by way of a successful
condonation application.
[12]
The Applicant parted ways with his second firm of attorneys, Isang
Nakale Incorporated, and ended up with a third
firm, Gildenhuys
Malatji Incorporated. This is also the firm that brought the
application on behalf of the Applicant for leave
to permit the filing
of a supplementary affidavit in the condonation application which was
brought by the second firm, Isang Nakale
Incorporated. The third firm
also brought the application for leave to appeal on behalf of the
Applicant after the Court, while
granting the Applicant leave to file
the supplementary affidavit, had dismissed the condonation
application.
[13]
According to 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;
(a)
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"
[14]
When the Applicant instituted legal proceedings by issuing and
serving summons on the Respondent, the latter resisted
the action by
filing a special plea on 23 March 2015 wherein the Respondent took
issue with the fact that the Applicant had not
complied with the
provisions of section 3 of Act 40 of 2002 in that the Applicant had
failed to serve notice within the requisite
6 months before
instituting legal proceedings against the Respondent. When the
special plea was filed, there was no condonation
application before
the Court - such application was only brought on 23 July 2015.
[15]
One of the issues that arises from the Applicant's non-compliance
with the provisions of section 3(2) is
whether the debt might have
been extinguished by prescription. More so, considering the summons
issued and served on the Respondent
may well, as explained above,
have been defective and was accordingly to all intents and purposes
non-existent (until a successful
condonation application). During the
hearing of the application for leave to appeal, it was argued on
behalf of the Applicant that
the debt had not in fact prescribed. The
question remains open.
[16]
The other issue worth exploring is whether
good cause
existed
for the Applicant's failure to comply with the provisions of section
3(2), i.e. to comply with the 6-month notice requirement.
The
Applicant's failure to comply with this requirement has been dealt
with extensively above. At the hearing it was strenuously
argued on
behalf of the Applicant that good cause did exist. The Court was not
swayed, and remains unconvinced. The question whether
or not the
Respondent was unreasonably prejudiced by the Applicant's failure to
comply with the 6-month notice requirement thus
becomes academic.
[17]
The appeal has, in the Court's view, no reasonable prospect of
success. Nor is there any compelling reason
why the appeal should be
heard.
Conclusion
In
the circumstances, the following order is made:
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
Dauds
AJ
For
the Applicant:
Adv. C.G.V.O Sevenster
Applicant's
Attorneys:
Gildenhuys
Malatji Incorporated, Pretoria
For
the Respondent:
Adv. A.G.
van Tonder
Respondent's
Attorneys:
State Attorney, Kimberley