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[2022] ZAECELLC 15
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Mfikili v Minister of Police for the Republic of South Africa and Another (E.L873/2019) [2022] ZAECELLC 15 (12 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EAST
LONDON CIRCUIT LOCAL DIVISION]
CASE
NO.E.L 873/2019
In
the matter between:
SIBULELE
MFIKILI
Applicant
And
THE
MINISTER OF POLICE FOR THE
REPUBLIC
OF SOUTH AFRICA
First Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Second
Respondent
JUDGMENT
TOKOTA
J
Introduction:
[1]
The applicant instituted an action for damages’ claim arising
from the alleged
unlawful arrest and detention against the first
respondent (claim 1), malicious prosecution against the first and
second respondents
(claim 2) and loss of income against the first and
second respondents (claim 3). The respondents raised a special plea
contending
that the plaintiff is time-barred for failure to comply
with section 3(2) of the Institution of Legal Proceedings Against
Certain
Organs of the State Act No. 40 of 2002 (the Act).The Act
creates time-bar limits enjoining a person who wishes to sue the
State
to give six months' notice from the date on which the debt
becomes due, with the provision for condonation of the late giving of
such notice. In that notice the claimant must briefly set out the
facts giving rise to such debt. The purported notice was issued
outside the six-month period. This is an application for condonation
forfailure to comply with the provisions of the Act. The application
is resisted by the respondents.
Factual
background:
[2]
On 12 July 2017, the applicant was arrested by the police without a
warrant of arrest.
He was detained until he appeared in court. The
papers do not indicate the date of his appearance in court. Since
this is not an
issue it can be safely assumed that he appeared within
the forty-eight-hour period required in terms of section 50(1) of the
Criminal
Procedure Act 51 of 1977 (the CPA). The respondents pleaded
that the applicant was arrested on reasonable grounds of suspicion
that he had committed murder and robbery which are offences referred
to in schedule 1 of the CPA.
[3]
The applicant appeared in court on several occasions without his case
being tried.
The information given by the parties is so scanty that
one does not know when exactly was he released on bail. On 19 July
2018,
the charges against the applicant were withdrawn. The applicant
alleges that the magistrate remarked that the reason for the
withdrawal
was that there was no case against him. According to
the record it is recorded “case withdrawn by PP”. The
record
does not reveal that the magistrate said there was no case
against the applicant.
[4]
On 2 October 2018, a letter purporting to be a notice in terms of
section 3(2) of
the Act was sent by registered mail to the National
Commissioner of Police. No such notice was sent or served on the
second respondent.
On 12 August2019, the summons was served on the
first respondent and on 24 January 2020, the summons was served on
the second respondent.
On 19 June 2020, the summons was served on the
Provincial Commissioner.
[5]
Generally speaking, as the applicant was arrested on 12 July 2017 and
assuming that
the arrest and detention were unlawful, the debt would
have become due on that date and the six month-period would have
expired
in January 2018.
[6]
The applicant stated that sometime after he was released he got to
know that he could
institute a claim for damages for unlawful arrest
and detention and malicious prosecution. He then started looking for
a lawyer
who could take his case on a contingency basis. He contacted
an attorney who wrote a letter on 2 October 2018. Then on 12
August 2019 and 24 January 2020 summons was served on the respondents
respectively.
[7]
The applicant does not tell the court when exactly after his release
did he know that
he had a claim against the respondents.
Statutory
Framework:
[8]
Section 3 of the Act provides:
“
3(1) No legal
proceedings for the recovery of a debt may be instituted against an
organ of state unless-
(a)
the creditor 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; or
(b)
the organ of state in question has consented in writing to the
institution of that legal
proceedings-
(i)
without such notice; or
(ii)
upon receipt of a notice which does not comply with all the
requirements set out in subsection
(2).
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
in accordance with section 4 (1);
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.”
3(3) For purposes of
subsection (2) (a)-
(a)
a debt may not be regarded as being due until the creditor has
knowledge
of the identity of the organ of state and of the facts
giving rise to the debt, but a creditor must be regarded as having
acquired
such knowledge as soon as he or she or it could have
acquired it by exercising reasonable care, unless the organ of state
wilfully
prevented him or her or it from acquiring such knowledge;
and...”
[9]
Section 3(4) of the Act provides:
“
(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.
(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”.
[10]
Section 12(3)
of the
Prescription Act 68 of 1969
is worded in a
similar fashion as section 3(3)(a) of the Act where it provides:
“
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.”
[11]
Subject to the provisions of section 3(4) of the Act, if the creditor
fails to serve the notice
within six months from the date on which
the debt became due he is precluded from instituting legal
proceedings against an organ
of State. The debt becomes due when the
creditor gains knowledge of the facts giving rise to it and of the
identity of the debtor,
or from the date on which he must be regarded
as having acquired knowledge thereof by reason of exercising
reasonable care.
Discussion:
[12]
The question to be determined is whether the applicant’s
failure to serve notices on the
respondents in terms of section
3(2)(a) of the Act can be condoned. Section 3(4)(b) gives the court
the power to grant condonation
upon being satisfied that the
applicant has met the three requirements mentioned therein.
[13]
Condonation is not granted for mere asking
[1]
.
A party seeking condonation must make out a proper case showing good
cause entitling it to the court's indulgence.
[2]
For condonation, an applicant is expected to explain the entire
period of the delay.
[3]
[14]
I now consider whether the applicant has satisfied the treshhold set
out in section 3(4) of the
Act to enable the court to grant
condonation. In
Road Accident Fund and Another v Mdeyide
2011
(2) SA 26
(CC)
(2011 (1) BCLR 1
;
[2010] ZACC 18)
para 8, for the
vital importance of prescription the Constitutional court said:
'This court has
repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal affairs,
and maintaining
the quality of adjudication. Without prescription periods, legal
disputes would have the potential to be drawn
out for indefinite
periods of time, bringing about prolonged uncertainty to the parties
to the dispute. The quality of adjudication
by courts is likely to
suffer as time passes, because evidence may have become lost,
witnesses may no longer be available to testify,
or their
recollection of events may have faded. The quality of adjudication is
central to the rule of law. For the law to be respected,
decisions of
courts must be given as soon as possible after the events giving rise
to disputes, and must follow from sound reasoning,
based on the best
available evidence.'
[15]
In considering whether or not condonation should be granted I am
guided by the requirements set
out in section 3(4)(b) of the Act.
Concerning the first requirement, the applicant was arrested on 12
July 2017. The case against
him was withdrawn on 19 July 2019. As can
be gleaned from the above it is clear that when the summons was
served, the claims had
not yet prescribed. Therefore the first
requirement has been satisfied.
[16]
Concerning the second requirement, the applicant proffered an
explanation that ‘some time’
after his release he got to
know that he could institute civil proceedings claiming damages
against the respondents. The applicant
does not take this court into
confidence and explain when exactly did he obtain this legal advice.
He tenders no explanation
for the period between his arrest and
his release.
[17]
In considering the good cause a distinction must be drawn between
knowledge of facts giving rise
to the debt and knowledge of a right
to sue. In
Minister
of Finance and Others v Gore NO
[4]
the
court held:
[17] This Court has,
in a series of decisions, emphasised that time begins to run against
the creditor when it has the minimum facts
that are necessary to
institute action. The running of prescription is not postponed until
a creditor becomes aware of the full
extent of its legal rights, nor
until the creditor has evidence that would enable it to prove a case
'comfortably'.[Footnotes omitted.]
[18]
The applicant was arrested on 12 July 2017. Six month-period expired
on 13 January 2018. He does
not explain why the notice was only
issued on 2 October 2018. There is a gap of unexplained period of
eight months prior to the
issuing of the notice. The special plea was
raised on 8 January 2020 and this application was launched on 3
November 2021. However,
the subsequent delay in bringing the
application for condonation, after the special plea was raised, does
not fall within the ambit
of section 3(4)(b)(ii). I mention it merely
to indicate the dilatory tendency of the applicant.The applicant was
legally represented
at the criminal trial.
[19]
In
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) ([2006] ZASCA
16) para 16-17 a case which dealt with section 12(3) of the
Prescription Ac it was said
“
For the
purposes of the Act, the term 'debt due' means a debt, including a
delictual debt, which is owing and payable. A debt is
due in this
sense when the creditor acquires a complete cause of action for the
recovery of the debt, that is, when the entire
set of facts which the
creditor must prove in order to succeed with his or her claim against
the debtor is in place or, in other
words, when everything has
happened which would entitle the creditor to institute action and to
pursue his or her claim.
[17] In a delictual
claim, the requirements of fault and unlawfulness do not constitute
factual ingredients of the cause of action,
but are legal conclusions
to be drawn from the facts:
'A cause of action
means the combination of facts that are material for the plaintiff to
prove in order to succeed with his action.
Such facts must enable a
court to arrive at certain legal conclusions regarding unlawfulness
and fault, the constituent elements
of a delictual cause of action
being a combination of factual and legal conclusions, namely a
causative act, harm, unlawfulness
and culpability or fault.'
[5]
[20]
In
Madinda v Minister of Safety & Security
[2008] ZASCA 34
;
2008 (4)
SA 312
(SCA) ([2008]
3 All SA 143
;
[2008] ZASCA 34)
para.10 it was
said:
. '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 justice. 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 or
parties to the delay and the applicant's responsibility
therefor.
[21]
The applicant knew or must have known of the facts giving rise to the
debt as well as the identity
of his debtor when he was arrested.
According to him, he protested about his arrest. It does not appear
from his affidavit that
he did not know about facts. What becomes
clear is that he did not know if he could institute a claim against
the respondents.
He only sought advice in this regard ‘some
time’ after he was released.
[22]
Knowledge of the right to institute damages’ claim against the
respondents is a conclusion
of law which does not “
constitute
factual ingredient of the cause of action.
[6]
In his affidavit, he does not claim that he did not know the facts
nor does he claim not to have known the debtor prior to the
expiry of
six months after his arrest and detention. As to the prospects of
success, the applicant merely states that “
I
am advised that the prospects of succeeding in the claim against the
respondents are good.”
[23]
With regard to the claim for malicious prosecution, the cause of
action in that regard arose
when the case was withdrawn against the
applicant on 19 July 2018. The so-called notice was then issued on 2
October 2018 which
was still within the six months’ period. In
the letter of demand dated 2 October 2018, the applicant’s
attorneys demanded
R400 000.00 for ‘humiliation and
embarrassment, pain and suffering’ and R2 million rand for
‘bully boy conduct’
of the members of the South African
Police Services assisted by the prosecutor in causing the applicant
to be detained.
[24]
From the contents of the purported notice, it is clear that the
notice did not comply with section
3 in that it refers to something
else other than the claim that the respondents are facing. At the
risk of repetition, the claims
against the respondents are (a)
unlawful arrest and detention (claim 1); malicious prosecution (claim
2) and (3) loss of earnings.
(Claim 3). There is no explanation for
this discrepancy. There is no link between the claim and the notice
whatsoever. There is
also no explanation in the affidavit why the
claims mentioned in the letter were not pursued.
[25]
There was no notice given to the second respondent at all. The
applicant in his affidavit did
not address this problem. He gave no
explanation whatsoever as to why such notice was not given.
Furthermore, he does not seek
any condonation for not having done so.
There is therefore nothing to consider in relation to the second
respondent and the application
in this regard should be dismissed
cadit quaestio.
In relation to the first respondent since the
aspect of the malicious prosecution was not addressed and I refrain
from making any
findings in this regard.
[26]
As regards prospects of success,the applicant merely states that he
has been advised that there
are prospects of success. That is not
enough. In dealing with prospects of success the applicant is
expected to deal with each
head of his claim. In this regard, there
is no such exposition. I agree with Mr
Jikwana
who
appeared for the respondents that the applicant has not demonstrated
that there are prospects of success in his claims. The
claims of
torture are not supported by any evidence. He does not even state how
he was tortured. Furthermore, there is no claim
for assault.
[27]
I now turn to deal with the reasons for the delay. As pointed out
above the explanation for the
delay is poor. All the applicant
did ‘some time’ after his release was to seek legal
advice regarding the claims.
The
only excuse I could glean from the affidavit is that the applicant
did not know if he had a claim against the respondents until
‘some
time’ after he got advice from his lawyers. The right to claim
against the respondents as stated in the above-quoted
cases relates
to the conclusion of law and therefore falls outside the ambit of
section 3(4).
[7]
[28]
In an application for condonation, a full explanation for the entire
period is required.
[8]
The
applicant has failed to do so. In their answering affidavit the
respondents pertinently pointed out that “
at
the time of his arrest and subsequently thereafter, the applicant
knew the minimum facts necessary to institute a claim against
the
respondents’.
The
applicant filed no replying affidavit to demonstrate the contrary.
[29]
The respondents in their answering affidavit point out that at the
criminal trial the applicant
was legally represented and therefore
had access to legal advice. The State did not prevent him from acting
against it. The applicant
elected not to file any replying affidavit
to contend otherwise. I agree with Mr
Jikwana
that the
applicant knew or ought, by reasonable exercise of care, to have
known all the minimum facts giving rise to the debt as
well as the
identity of the debtor as envisaged in the Act as far back as 12 July
2017 and elected not to do anything regarding
his claims. It has been
held that a man whose legal interests are threatened should be
vigilant to protect them and not to wait
for others to protect them
for him. The law comes to the aid of those who act and not those who
slumber;
Vigilantibus non dormientibus jura subveniunt. .
In
Mtokonya v Minister of Police
2018 (5) SA 22
(CC)
(2017
(11) BCLR 1443
;
[2017] ZACC 33)
para.145 Jafta J stated
“
the purpose served by s 12(3) is to prevent the
commencement of prescription being delayed by the negligent inaction
of the creditor
who faces no impediments to instituting legal
proceedings. The legitimate purpose served by provisions of a
limitation such as
s 12(3) is founded on public policy and is
underpinned by two principles. The first is the interest of the state
which requires
that there should be a limit to litigation. The second
is that the law helps the vigilant and not those who slumber.”
[30]
In all the circumstances I am of the view that the applicant has
failed to meet the second requirement
of section 3(4)(b).
[31]
With regard to the prejudice, the applicant in his purported notice
letter dated 2 October 2018
no mention is made of any unlawful arrest
and detention. Although malicious prosecution is mentioned, according
to the notice,
the claims were for humiliation and embarrassment,
pain and suffering in the amount of R400 000 and a ‘bully
conduct’
of the members of SAPS for R2million rand. In this
regard the prejudice is obvious. The cause of action is now something
different
from the notice itself. No opportunity was given to the
respondents to consider their positions in terms of the claim.
[32]
In all the circumstances to the extent that the claim concerns
unlawful arrest and detention
as well as loss of income the applicant
has failed to give a reasonable explanation why section 3 of the Act
was not complied with.
Costs:
[33]
The general rule is that costs should follow the result. There is no
reason why the rule should
not apply in this case.
[34]
In the result the following order will issue:
1.
The application for condonation in terms of section 3 of Act 40 of
2002 is dismissed with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: J
L Kilani
Instructed
by Lutango
Sigcawu
Attorneys
For
the Respondents:
T M Jikwana
Instructed
by State
Attorney
Date
of Hearing:
2 June 2022.
Date
delivered:
12 July 2022.
[1]
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC)
(2014 (1) BCLR 65
;
[2013] ZACC 37)
para 23.
[2]
Von
Abo v President of the Republic of South Africa
2009 (5) SA 345
(CC)
(2009 (10) BCLR 1052
;
[2009] ZACC 15)
in para 20; and Van Wyk
infra n 2 in para 22.;Grootboom v NPA
2014 (2) SA 68
(CC)
(2014 (1) BCLR 65
;
[2013] ZACC 37)
para.23
[3]
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
2008 (2) SA 472
(CC)
(2008 (4) BCLR 442
;
[2007]
ZACC 24)
para 22.; Von Abo v President of the RSA
2009 (5) SA
345
(CC)
(2009 (10) BCLR 1052
;
[2009] ZACC 15)
para.20; Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services (Pty)
Ltd
2012 (2) SA 637
(CC) ([2009] ZACC 12) para.15; eThekwini
Muni v Ingonyama Trust
2014 (3) SA 240
(CC)
(2013 (5) BCLR 497
;
[2013] ZACC 7)para.28
[4]
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA) ([2007]
1
All SA 309
;
[2006] ZASCA 98)
para 17.
[5]
See also Links v Dept of Health, NP
2016 (4) SA 414
(CC)
(2016
(5) BCLR 656
;
[2016] ZACC 10)
para.31
[6]
Truter supra para.17
[7]
See Eskom v Bojanala Platinum District Municipality and Another 2003
JDR 0498 (T): para [16] ;
[8]
Uitenhage
TLC v SARS
2004 (1) SA 292
(SCA) ([2003]
4 All SA 37
;
[2003]
ZASCA 76)
para.6