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[2022] ZAECELLC 10
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Mngcebele v Minister of Police and Another (1195/2019) [2022] ZAECELLC 10 (31 May 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 1195/2019
Reportable:
Yes / No
In
the matter between:
THANDUXOLO
MNGCEBELE
Applicant
and
MINISTER
OF POLICE
1
st
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
nd
Respondent
JUDGMENT
ZILWA
J
[1]
This is an application by the applicant (as plaintiff in the
underlying action) seeking
orders in terms of the Notice of Motion.
With regard to the orders sought the Notice of Motion reads (warts
and all) as follows:
“
1. Declaring that
the Applicants first became aware on 17 April 2019 of the damages
claim against the Respondents, arising from
the wrongful and unlawful
arrest and detention of the applicant on 13 May 2017 by members of
the South African Police Services
(SAPS) in Mdantsane, on 16 April
2019 and his malicious prosecution by the employees of the first and
second respondents during
May 2017 to 12 April 2018;
1.1 Alternatively;
In terms of section 3(4)(a) of the Institution of Legal Proceedings
against Certain Organs of State Act
40 of 2002, the Applicant’s
failure to serve its notice dated 24 April 2019, in terms of Section
3(1) of the Institution
of Legal Proceedings against Certain Organs
of State Act 40 of 2002 timeously, be condoned,
2. In terms of
section 3(4)(a) of the Institution of Legal Proceedings against
Certain Organs of State Act 40 of 2002, the
Applicant’s
defective notice in terms of Section 3(1) of the Institution of Legal
Proceedings against Certain Organs of State
Act 40 of 2002 be
condoned;
3. Cost of the
application only in the event of the application being opposed.”
[2]
The application is opposed by the first respondent only, while the
second respondent
has remained supine.
[3]
At the commencement of the argument the applicant’s Counsel, Mr
Jikwana, informed
the Court that the applicant has abandoned the
declaratory relief sought in paragraph 1 of the Notice of Motion set
out above and
only seeks the alternative relief set out in
sub-paragraph 1.1 and paragraph 2, with costs.
[4]
In his founding affidavit the applicant has stated the basis for the
application to
be that after summons had been issued on his behalf
against the respondents (as defendants in the action) on 23 October
2019 claiming
damages for “unlawful arrest and detention on 13
May 2017 by members of the SAPS and subsequent prosecution by members
of
the National Prosecuting Authority in collaboration with members
of the SAPS during the period May 2017 to April 2018”.
[5]
In their Plea dated 07 January 2020 the defendants had raised a
Special Plea of non-compliance
by the applicant with section 3 and 4
of the Institutions of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (The
Act) on the basis that the applicant (as
plaintiff) failed to serve the requisite notices in terms of the Act
within six (6) months
and that the notice that was served did not
comply with section 3(2) of the Act.
[6]
Presently the applicant is a sentenced prisoner serving his sentence
at the Wesbank
Maximum Correctional Centre in East London. He
contends that after undergoing what he regards as an unwarranted and
unlawful arrest
and detention by members of the SAPS on 17 May 2017
without a warrant of arrest at his home in Mdantsane he was detained
at various
detention centres for a period of eleven (11) months at
the instance of various policemen and thereafter prosecuted by the
members
of the NPA without a reasonable or proper precause for so
doing until he was acquitted and released on 12 April 2018.
[7]
He further contends that as an illiterate layperson not schooled in
legal matters
he had thought that the respondents’ employees
cannot be held delictually liable for his arrest, detention and
malicious
prosecution. It was only during the month of April 2018
when a fellow inmate advised him that he was a client of his
(applicant’s)
present attorneys of record and arranged
consultation with them to visit and consult with him at the detention
centre on 16 April
2018. During such consultation he had narrated his
arrest, detention and prosecution that had culminated in his
acquittal as set
out above.
[8]
He contends that after his narration to his attorney, Mr Ntshiqa, the
latter had informed
him that his arrest, detention and prosecution
were wrongful and unlawful and that the respondents were liable to
pay him for the
damages suffered in respect thereof. It was only then
that he became aware for the first time that he had a cause of action
against
the respondents and he immediately gave instructions to the
attorney to institute civil proceedings against the respondents. On
the basis that he had only become aware of his cause of action
against the respondents on 16 April 2018 for purposes of section
3(3)(a) of the Act he seeks a declarator that his cause of action
only arose on that date. Alternatively, he seeks condonation
for his
failure to institute the proceedings after issuing the requisite
notices to the respondents within the prescribed time
frames in terms
of section 3(4)(a) of the Act.
[9]
The present application was precipitated by the respondent’s
Special Plea to
the applicant’s combined summons, which Special
Plea is annexed to the applicant’s founding papers as annexure
TN3.
For reasons that will become apparent later it is essential to
quote paragraphs 4 and 5 of the respondent’s Special Plea
referred to above. Such paragraphs read as follows:
“
4.
In terms of Section 4(1)(a) of Act 40 of 2002 where the organ of
state is –
4.1
the Department of Police, the notice must be sent to the National
Commissioner and the Provincial
Commissioner of the province in which
the cause of action arose, as defined in section 1 of the South
African Police Services Act,
1995; and
4.2
a functionary or institution referred to in paragraph (c) of the
definition of ‘organ
of state’, as is the National
Prosecuting Authority, to the chairperson, head or chief executive
officer, or equivalent officer,
of that functionary or institution,
or where such functionary is a natural person, to that natural
person.
5.
The plaintiff has not compiled with sections 3 and 4 of Act 40 of
2002 in that
he did not give any notice, whatsoever to –
5.1
the National Commissioner and the Provincial Commissioner: Eastern
Cape; and
5.2
the second respondent,
within six (6) months of
the amount becoming due or at all.”
[10]
From the afore-going it becomes clear that one of the bases for the
respondent’s Special
Plea was the applicant’s failure to
give notice to, amongst others, the Eastern Cape Provincial
Commissioner of the SAPS.
Such failure constitutes non-compliance
with the peremptory requirement in Section 5(1)(b)(ii)(bb) of the
Act.
[11]
With regard to the applicant’s failure to also serve the Notice
in terms of Section 3(1)
of the Act on the Eastern Cape Provincial
Commissioner of SAPS as required in the Act, the applicant’s
explanation in the
founding affidavit is that his attorney had
advised him that he (the attorney) was under the mistaken impression
that there was
no need to also serve the Notice on the Provincial
Commissioner and that only service on the National Commissioner was
required.
[12]
In its response to the applicant’s explanation for the failure
to effect the service on
the Provincial Commissioner the first
respondent only offers a bare denial and also points out the absence
of a confirmatory affidavit
from the applicant’s attorney
responsible for the omission. The confirmatory affidavit was only
annexed to the applicant’s
replying affidavit. The respondents
also deny that the omission has not caused them to suffer any
prejudice. They contend that
the first respondent’s members
that were involved in the applicant’s arrest and detention and
the investigation of
the charges against him
may
(emphasis
added) not have knowledge of the facts of the matter on account of
the passage of time.
[13]
Section 3(4)(b) of the Act sets out the Court’s powers and the
relevant aspects for consideration
in dealing with condonation
applications such as the one in issue herein. Before it can grant
condonation the Court has to be satisfied
that:
(i)
The debt has not been extinguished by prescription;
(ii)
Good cause exists for the failure by the creditor, i.e. to serve the
statutory notice
according to Section 3(2)(a) or to serve a notice
that complies with the prescriptions of Section 3(2)(b); and
(iii)
The Organ of State was not unreasonably prejudiced by the failure.
[14]
With regard to the first requirement of the debt not having been
extinguished by prescription,
it is common cause between the parties
that the debt in issue in this case has indeed not been extinguished
by prescription. Accordingly,
the first requirement is satisfied.
[15]
Regarding the second requirement of good cause that should exist for
the failure by the creditor
it is apposite to cite the trite position
that “good cause” looks at all those factors which bear
on the fairness of
granting the relief as between the parties and as
affecting the proper administration of the justice. As the Court
aptly observed
in
Madinda
v Minister of Safety and Security
[1]
in any
given factual complex it may be that only some of many such possible
factors become relevant. These 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 of parties to
the delay and the applicant’s responsibility therefor.
[16]
As it was held in
Chetty
v Law Society, Transvaal
[2]
good cause usually comprehends the prospects of success on the merits
of a case, for obvious reasons. In its quest to establish
whether
good cause for the delay has been established the Court must decide
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.
Strong merits may mitigate fault; no merits may render litigation
pointless. There are two main elements at play
in Section 4(b), viz
the subject’s right to have the merits of his case tried by a
court of law and the right of an Organ
of State not to be unduly
prejudiced by delay beyond the statutorily prescribed limit for the
giving of notice.
[3]
[17]
In the founding affidavit the applicant has contended that it was
only during April 2018 upon
discussing the circumstances of his
arrest and detention with a fellow inmate in custody who had
mentioned that his attorney, who
later became the applicant’s
attorney in this case, was assisting him with a claim arising out of
similar circumstances and
after actually consulting with the
attorney, that he became aware of his cause of action that resulted
in the launching of the
present action. To those contentions the
first respondent has only pleaded lack of knowledge and the
contention that the applicant
should have known that he had a cause
of action prior to such consultations. In argument Ms Da Silva, who
appeared for the first
respondent, drew a parallel between the
requirements of the relevant section in this Act and those that
govern the running of prescription
in terms of
section 11
of the
Prescription Act 68 of 1969
. She referred the Court to the full court
appeal judgment of this division by Van Zyl DJP in the matter of
Minister of Police v Abongile Zamani
under case CA10/2021 that
was handed down on 12 October 2021. However, I am of the view that
that case is distinguishable from the
present case both on the facts,
principle and the subject matter for determination. It dealt with the
aspect of when prescription
had started running on the facts of that
case and not with condonation sought in terms of the Act in issue
herein. I am of the
view that the requirements and relevant
considerations between the two statutes and causes of action in the
two cases are distinguishable.
[18]
In his founding papers and annexures thereto the applicant sets out a
prima facie
case of unlawful arrest and detention which, if
not successfully refuted in defence, may possibly result in judgment
in his favour.
His ignorance, inexperience, naïveté or
simple lack of intelligence in realising that the manner of his
arrest and
detention gives rise to a cause of action before
consulting with his attorney of record in the present matter cannot,
in my view,
trump the conclusion that he has shown good cause for the
failure to serve the requisite notice either timeously or at all. It
is not insignificant that the failure to realise the requirement for
service of the notice on the Provincial Commissioner as well
is the
applicant’s attorney’s fault, not his own.
[19]
It should always be borne in mind that the purpose of condonation as
envisaged in section 4 of
the Act is to allow the action to proceed
despite the fact that the peremptory provisions of Section 3(1) have
not been complied
with. Either a complete failure to send a notice,
or the sending of a defective notice, entitles a creditor, such as
the applicant
herein, to make the application for condonation. Even
this is qualified: it is only if an organ of State relies on a
creditor’s
failure to serve a notice that the creditor, such as
the applicant in the present application, may apply for condonation.
If the
organ of State makes no objection to the absence of a notice,
or a valid notice, then no condonation is required.
[4]
I am satisfied that the applicant has satisfied the requirement of
good cause for his failure as envisaged in Section 3(4)(b)(ii)
of the
Act.
[20]
With regard to the final requirement that the organ of State was not
unreasonably prejudiced
by the failure the applicant has, in his
founding affidavit, averred that the respondent has suffered no such
prejudice in consequence
of his failure. In response the first
respondent has denied that contention. The only basis for such denial
is the contention that
its members that were involved in the arrest
and detention of the applicant and the investigation of the charges
against him
may
not have independent knowledge of the facts of
the matter on account of the passage of time (emphasis added).
[21]
I am not persuaded that the respondent has successfully refuted the
applicant’s contention
that it has not been unreasonably
prejudiced by the failure.
[22]
In
Madinda v Minister of Safety and Security (supra)
Heher JA
held (at paragraph [21] page 320) that:
“
The third leg of
Section 3(4)(b) required the appellant to satisfy the court that the
respondent had not been unreasonably prejudiced
by the failure to
serve the notice timeously. This must inevitably depend on the most
probable inference to be drawn from the facts
which are to be
regarded as proved in the context of the motion proceedings launched
by an applicant. The approach to the existence
of
unreasonable
prejudice (not simply any level of prejudice, an aspect which the
judgment of the court
a quo
blurs) requires a common sense
analysis of the facts, bearing in mind that whether the grounds of
prejudice exists often lies peculiarly
within the knowledge of the
respondent. Although the
onus
is on an applicant to bring the
application within the terms of the statute, a court should be slow
to assume prejudice for which
the respondent itself does not lay a
basis.”
[23]
As already indicated above, the only ground upon which the respondent
contends for prejudice
is an assumption that the members of the
service involved in the arrest, detention and the investigation of
the charges against
the applicant
may
not have independent
knowledge of the facts of this matter on account of the passage of
time. Needless to say, in the absence of
any confirmatory affidavits
by the members referred to about the effect which passage of time has
had on their ability to deal
with the relevant events renders the
respondent’s contention nothing more than baseless conjecture
and surmise. It does not
come within even shouting distance to the
requirement that the respondent itself should lay a basis for any
prejudice that it contends
for.
[24]
In those circumstances, I am satisfied that on the facts before me
there is no basis for rejecting
the applicant’s contention that
the respondent was not unreasonably prejudiced by the applicant’s
failure to comply
with the notice requirement. It should be
remembered that the point in issue is the statutory notice of the
cause of action. The
applicant has the same rights as any other
litigant in relation to when he issued summons in the matter: he had
to do so before
his claim prescribed and the action, once instituted,
would be subject to the usual hazards of litigation including
systemic and
other delays.
[5]
Since, as already indicated above, it was common cause that the
plaintiff’s cause of action has not prescribed, the passage
of
time referred to by the respondent that may or may not have affected
the independent knowledge by the relevant functionaries
of the facts
of this matter, has no bearing on the point in issue in the present
application.
[25]
In argument Ms Da Silva submitted that since in this case no notice,
defective or otherwise,
was served on the Eastern Cape Provincial
Commissioner of police as required in section 5(1)(b)(ii)(bb) of the
Act no case has
been made for the grant of the relief sought. She
argued that while the Court may condone late service of notice it
cannot condone
a complete failure to give notice. She further argued
that since up until this stage no notice to the Provincial
Commissioner has
been served at all there is nothing to condone.
[26]
In rejecting this argument I can do no better than simply restating
Lewis JA’s
dictum
in page 463 paragraph [18] in
Minister
of Safety and Security v De Witt (supra)
, where he stated thus:
“
[18]
Similarly, although the court below correctly found that condonation
should be granted
to De Witt for his late service of notice, the
court statement that condonation cannot be granted where no notice at
all is served
is incorrect. It is not consonant with wording of s3 or
its purpose.”
This
was further confirmation of what the learned judge had stated earlier
on in the judgment that the section states what the creditor
may do
should he have failed to comply with the requirements of Sections (1)
and (2) i.e. he may apply for condonation for the
failure: whether
there is
complete failure
to send notice, or the sending of a
defective notice.
[27]
In the premises I am satisfied that the applicant has made out a
proper case for the condonation
sought.
[28]
Finally, having succeeded in the application the applicant would
ordinarily be entitled to have
the costs of the application awarded
in his favour. However, in the exercise of my discretion regarding
costs I am of the view
that on the particular facts of this
application I should make no order of costs in the applicant’s
favour. The applicant’s
papers are very slovenly drawn. It does
not appear that any care was taken by whoever drew the papers to
ensure that a proper job
is done in drawing those papers that were to
serve before this Court. The relief sought in paragraph 1 of the
Notice of Motion
is worded in a way that does not make sense at all.
Small wonder that at the commencement of the argument Mr Jikwana for
the applicant
abandoned and disavowed any reliance on the “relief”
sought therein. He only sought the reliefs in paragraphs 1.1, 2
and
3.
[29]
Even the relief sought in paragraph 1.1 of the Notice of Motion,
which merely refers to condonation
of the applicant’s failure
to serve its notice dated 24 April 2019 in terms of section 3(1) of
the Act timeously, is not
a model of clarity. The relief that was
ultimately argued pertained to failure to serve such notice on the
Provincial Commissioner
of Police. It is only by putting substance
over form that the court shall grant the proper relief, having heard
full argument with
regard thereto from both sides.
[30]
The slovenliness even permeated the founding affidavit. The numbering
of the paragraphs thereof
is confused and confusing, resulting in
considerable problems for the respondent in properly responding
thereto in its answering
papers. As a measure of censure I consider
it proper not to award any costs in favour of the applicant despite
his success in the
application.
[32]
In the result the following order shall issue:
1.
The applicant’s failure to serve its notices in terms
of
Section 3(1) read with Section 5(1)(b)(ii)(bb) of Act 40 of 2002 is
hereby condoned.
2.
The applicant is granted leave to proceed with its action in
case
EL1195/2019 despite the failure referred to in paragraph 1 above.
3.
Each party shall pay its own costs of the application.
P
ZILWA
JUDGE
OF THE HIGH COURT
BHISHO
Counsel
for the Applicant:
Adv. Jikwana
Instructed
by:
Mzi Ntshiqa Attorneys Inc.
29 Koch Street
Brookmead
AMALINDA, EAST LONDON
Counsel
for the Respondents:
Adv. Da Silva
Instructed
by:
Office of the State Attorney
Old Spoornet Building
17 Fleet Street
EAST LONDON
Date
Heard:
19 MAY 2022
Judgment
Delivered:
31 MAY 2022
[1]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at 316E – F.
[2]
1985
(2) SA 756(A)
at 765D – E.
[3]
Madinda,
page
317C – D.
[4]
See
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
at 461 para [10].
[5]
See
Madinda
v Minister of Safety and Security (supra)
at
page 321D.