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[2021] ZAGPPHC 322
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Nkosi and Others v Minister of Police and Others (67107/17) [2021] ZAGPPHC 322 (27 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 67107/17
DATE:
27 May 2021
AARON
NKOSI & 10
OTHERS
Plaintiffs
/
Applicants
V
THE
MINISTER OF
POLICE
First
Defendant/Respondent
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Second
Defendant/Respondent
THE
TSHWANE METRO POLICE DEPARTMENT
Third
Defendant/Respondent
JUDGMENT
MABUSE
J
[1]
This application is brought by an attorney on behalf of a client, the
Plaintiff in the main action.
The Plaintiff seeks an order in
the following terms:
“
1.1
That the non-compliance “by the Plaintiffs” with s 3(1)
and
s 3(2)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act No. 40 of 2002
in relation to a claim instituted
against the Third Respondent be condoned in terms of
s 3(4)
of the
abovementioned Act.
1.2
That no order be made as to costs, same that, should any party oppose
this application, such party/parties
must be ordered to pay costs
occasioned by such application.”
[2]
On 11 November 2017 the Plaintiffs instituted an action against the
First and Second Defendants based
on unlawful arrest, unlawful
detention and malicious prosecution by officials of the First and
Second Defendants. As it is
obvious from the citation of the
Defendants, at that stage the Third Defendant was not a party to the
action so instituted.
[3]
The incident took place on 19 October 2015. The Plaintiffs were
charged with various charges that
included illegal gatherings.
Copies of the combined summons were served on the First and Second
Respondents on 3 October
2017.
[4]
The initiation of the action against the First and Second Defendant
was preceded by a notice in terms
of
s 3
of the Act sent to the First
and Second Defendants. No such notice was sent to the Third
Defendant at the same time, because
at the time when the Plaintiffs’
attorney issued the notices in terms of
s 3
of the Act to the First
and Second Defendants, it had not been planned to initiate any such
proceedings against the Third Defendant.
[5]
On 28 June 2018 the Plaintiff issued an application to join the Third
Defendant. The order of
joinder was granted on 29 October
2018. A copy of the relevant court order is attached to the
founding affidavit as Annexure
‘A’.
[6]
After the joinder order was granted the Plaintiff and the Third
Defendant exchanged pleadings.
They have already had a
pre-trial conference in the main matter. Such pre-trial
conference was held on 29 October 2019.
[7]
According to the Plaintiffs’ attorney, despite the Third
Defendant having joined the main action
at a late stage, the joinder
application and a copy of the combined summons were served on the
Third Defendant before the Plaintiff’s
claim could become
prescribed and within three years of the date of detention and
withdrawal of the charges.
[8]
The attorneys take full responsibility for the failure to comply with
the provisions of the Act.
[9]
The application for condonation is opposed by the Third Defendant.
The answering affidavit of
a certain Wardah Achmat, an adult female
employed as the Deputy Director Compliance and Corporate Governance
litigation of the
Third Defendant is used for that purpose.
[10]
In opposing the application for condonation the Third Defendant
relies on:
10.1
prescription;
10.2
non-existence of a good cause;
10.3
prejudice to the Third Defendant; and
10.4
failure by the Plaintiffs to ensure that the application for joinder
was served on the Third Defendant.
[11]
The version of Ms Achmat is as follows. On 19 October 2015 and
at Pretoria the Plaintiffs were arrested and
subsequently detained.
The effective date on which their cause of action arose is
accordingly 19 October 2015. It is
common cause furthermore
that the Plaintiffs were arrested and detained by the members of the
First and Second Defendants.
This is clear from paragraph 6 of
the Plaintiff’s particulars of claim. Summons was issued
against the First and Second
Defendants on 16 May 2017 and served on
them on 3 October 2017. A summons citing the First and Second
Defendants was served
on the Third Defendant on 8 April 2018. A
period of more than three years after the cause of action had arisen
before the
Plaintiffs joined, by way of an application, the Third
Defendant as a defendant in the action. On 1 August 2019 the
Plaintiffs
served and amended their particulars of claim on the
attorneys of the Third Defendant which introduced members of the
Third Defendant
as the persons who effected the purported unlawful
arrest on 19 October 2019. According to the Third Defendant
this was done
despite proper objection to a notice of intention to
amend.
[12]
According to the Plaintiffs they were arrested and detained by
members of the South African Police Service.
These members were
in the employ of the First Defendant and at all material times were
acting within their course and scope of
their employment with the
First Defendant.
[13]
On 16 May 2017 the Plaintiffs issued summons against the First and
Second Defendants. Copies of the summons
were served on the
First and Second Defendants on or about 3 October 2017. The
summons that had cited the First and Second
Defendants only was
served on the Third Defendant on 8 April 2018. The Third
Defendant was not cited as a party in the summons.
[14]
On 28 October 2018 and by way of an application the Plaintiffs joined
the Third Defendant as a defendant in the
action. It is
the Third Defendant’s case that the application for joinder was
not served on the Third Defendant
but was only served on the office
of the State Attorney who are the attorneys of record of the First
and Second Defendants.
It is not in dispute that a copy of the
application for joinder was not served on the Third Defendant but was
only served on the
State Atttorney. This fact was admitted by
Mr Choeu who appeared for the Plaintiffs.
[15]
On 1 August 2019 the Plaintiffs served their amended particulars of
claim on the attorneys of the Third Defendant.
The allegations
against the Third Defendant, as they were against the other
Defendants, were that the Third Defendant had purported
to arrest
unlawfully the Plaintiffs on 19 October 2015. On 19
September 2019 the Third Defendant served and filed its
plea in the
action. A copy of the Third Defendant’s plea is attached
to the papers as Annexure ‘AA7’.
In the said plea
the Third Defendant raised a special plea of non-compliance with
s 3
and
s 4
of the Act.
[16]
It is the Third Defendant’s case that in order to be successful
with its application for condonation the
Plaintiff is required to at
least satisfy the following requirements:
16.1
firstly, that the debt has not been extinguished by prescription;
16.2
secondly, that good cause exists for the failure by the Plaintiffs to
give timeous notice in terms of the Act;
and
16.3
that the Third Defendant had not been unreasonably prejudiced by the
failure by the Plaintiffs to give timeous
notice in terms of the Act.
PRESCRIPTION
[17]
The date of the arrest and subsequent detention of the Plaintiffs was
19 October 2015. In terms of
s 11
of the
Prescription Act 68 of
1969
the effective date of prescription of the Plaintiffs’
claim was 18 October 2018. The order to join the Third
Defendant
was only granted on 29 October 2018. Moreover, this
order was only served and filed on the Third Defendant’s
attorneys
of record on 5 July 2019.
[18]
The Defendants only amended their particulars of claim which
introduced members of the Third Defendant as the persons
who
allegedly effected the unlawful arrest on 19 October 2015, on 1
August 2019. This happened approximately 10 months after
any
possible claim against the Third Defendant had been extinguished by
prescription. The Plaintiffs’ attorney has
failed to
furnish this Court with a reasonable or acceptable explanation how
the failure to give the Third Defendant the necessary
notice in terms
of
s 3
of the Act came about. Furthermore, he failed to give
any reason why there was such an unreasonably long delay before he
decided to join the Third Defendant.
PROSPECTS
OF SUCCESS
[19]
The Plaintiffs’ claim against the Third Defendant has been
extinguished by prescription. It is not
in the interest of
justice to grant a condonation application to the Plaintiffs in
circumstances where the cause of action on which
the Plaintiffs rely
has become prescribed. Therefore, there will be no prospects of
success for the Plaintiffs in the action
in circumstances where the
claim against the Third Defendant has already become prescribed.
SERVICE
OF THE JOINDER APPLICATION
[20]
It is not in dispute that the application for joinder of the Third
Defendant was not served on the Third Defendant
but instead on the
State Attorney, the attorneys acting for the First and Second
Defendants. It is not clear as to whether
this matter was
pointed out to Judge Maumela when he granted the application for
joinder. I am sure that if he had been informed
that there was
no service of the application for joinder on the Third Defendant he
would not have granted the order that he did
on 29 October 2018.
That order was granted erroneously. Relevant facts were
withheld from the Judge. The order
of Maumela J was an order
given without jurisdiction. It is therefore an invalid order
that may be disregarded without the
necessity of a formal order
setting it aside. The Plaintiffs were not justified and
entitled to rely on a return of service
that showed that the
application for joinder had not been served on the Third Defendant.
PREJUDICE
[21]
It is the Plaintiffs counsel’s case that in terms of the
provisions of
s 3(4)
of the Act the court must determine whether it
would be in the interest of justice to grant condonation if the court
is satisfied
that:
21.1
the debt arising from the Plaintiffs’ claim has not been
extinguished by prescription;
21.2
good cause exists for the failure by the Plaintiffs to have served a
notice in terms of subsection (2)(a); and
21.3
the Third Defendant was not unreasonable prejudiced by the said
failure.
According
to counsel for the Third Defendant it is not denied that the Third
Defendant only became fully aware of the relevant dates
on 1 August
2019, some four years after the alleged arrest had occurred.
Furthermore, it is not denied by the Plaintiffs
that their failure to
timeously give notice before the claim had been extinguished by
prescription the Third Defendant is severely
prejudiced in having to
defend and ward off the current litigation. The allegations by
the Third Defendant that he would
suffer prejudice by such failure or
to give notice in terms of
s 3
of the Act or by the late delivery of
the said notice in terms of
s 3
of the Act would prejudice the Third
Defendant. Finally, the Plaintiffs have not denied that the
jurisdictional requirements
have not been established and that the
application should be dismissed with costs.
[22]
I find that the application for condonation has several material
problems. It cannot succeed and it is therefore
dismissed with
costs.
PM
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Plaintiffs/Applicants:
Adv KM Choeu
Instructed
by:
Nkome Attorneys Incorporated
Counsel
for the Third Defendant/Respondent:
Adv WS Jungbluth
Instructed
by:
Gildenhuys Malatji Incorporated
Date
on the opposed roll before Mabuse J:
24 May 2021
Date
of Judgment:
27 May
2021