About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 65
|
|
Mkhabela v Minister of Police (56860/2017) [2019] ZAGPPHC 65 (8 February 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NUMBER: 56860/2017
8/2/2019
In
the matter between:
William
Brian
Mkhabela
Applicant
V
Minister
of
Police
Respondent
JUDGMENT
SKIBI
AJ
INTRODUCTION
[1]
This
is an application for condonation for the late delivery of the notice
in terms of section 3 of the Institution of Legal Proceedings
against
Certain Organs of State Act
[1]
(the Act). The respondent is opposing the application.
FACTUAL
BACKGROUND
[2]
On
14 June 2017, the applicant's attorneys caused a notice in terms of
section 3 of the Act to be served at the office of the National
Police Commissioner demanding payment of a total amount of R2
520,000.00 for damages in respect of the alleged unlawful arrest
and
detention. The summons commencing the action and now claiming an
amount of R820,000 was served upon the respondent on 21 August
2017.
[3]
The
applicant alleges that on or about 7 February 2015 and at Mamelodi,
Gauteng Province, he was arrested without a warrant by Isaac
Samuel
Mabena, a warrant officer in the South African Police Service (SAPS).
He was detained from approximately 16h05 on 7 February
to 13h00 on 9
February 2015 at Mamelodi East police station. He was charged with
unlawful possession of a firearm and ammunition
suspected to have
been stolen. He alleges that the arrest and subsequent incarceration
was an abuse of power which amounted to
a violation of his
constitutional right to dignity on the basis that he never committed
the said crimes. He alleges that he was
licenced to possess the
state-issued firearm and ammunition.
[4]
The
applicant explains the delay as follows:
"
I
was
not aware of the
required time limits that had to be given to an organ of State within
6 months of my arrest. I only became aware
on the applicable Act of
Parliament
as
well as time periods when I first consulted my
attorney of record on 14 June 2017."
On 30 November 2017
[2]
this application was launched with the Registrar of this court.
ISSUES
[5]
The
main issue for determination is whether the applicant has made a
proper case for this court to grant him condonation for the
late
filing of the notice in terms of section 3 of the Act.
LAW
[6]
Section
3(4) of the Institution of Legal Proceedings against Certain Organs
of State Act 40 of 2002 provides:
(a)
that 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 court having
a
jurisdiction for condonation of such
failure.
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;
(iii)
the organ of state was not
unreasonably prejudiced by the failure.
[7]
The
interpretation of the three requirements came before the higher
courts for consideration and have been dealt with extensively.
In the
case of the
Minister of Agriculture
and Land Affairs v CJ Rance (Pty) Ltd
[3]
it was held that section 3(4)(b)
circumscribes the court's power by requiring that it be satisfied
that all the requirements are
met and the said requirements must be
established by the Applicant. See also
Oletsitse
v Minister of Police
[4]
;
Unreported judgment by the full
court of the
Eastern Cape Division,
Grahamstown case of Wanga Maguga v Minister of Police
[5]
(i)
Prescription
[8]
On
the facts of this case the first requirement is not applicable
because the action was instituted before the prescription of the
claim. Both parties correctly so in my view conceded that the action
has not prescribed.
(ii)
Good cause:
[9]
Good
cause refers to the reasons for the delay and the prospects of
success in the intended action. In the case of
Malinda
v Minister of Safety and Security
[6]
the Supreme Court of Appeal said the
following:
"[10] The second requirement is
a
variant of one well-known in
cases
of procedural non-compliance. Torwood
Properties (Pty) Ltd v South African Reserve Bank 1996(1) SA 215 (W)
at 227-228F and the
cases
there
cited. '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 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 tides of the
applicant, and any contribution by other or parties to the delay and
the applicant’s
responsibility thereof'.
[12]
...
"Good
cause for the delay" is not simply
a
mechanical matter of cause and
effect. The court must decide whether the applicant
has
produced acceptable
reasons
for nullifying, in whole, or at least
substantially, any culpability on his part which attaches to the
delay in serving the notice
timeously. Strong merits may mitigate
fault, no merits may render mitigation pointless. There are two
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 the delay beyond the statutory prescribed limit for
the giving of
notice".
[10] In general terms
the interest of justice plays an important role in condonation
application. An application
for condonation is required to set out
fully the explanation for the delay and must be reasonable. In the
instant case the applicant's
reason for delay is that he was not
aware about the notice which had to be served to the respondent until
he consulted his attorneys
on 14 June 2017. The respondent argues
that the applicant has failed to provide this court with sufficient
reasons as to why section
3 notice was not served within the
prescribed period.
[11]
The
respondent in essence contends that the applicant does not give
account of what steps he took from 9 February 2015 when he was
released until June 2017 and as a police reservist, he ought to have
known that if the arrest was unlawful, a reasonable law enforcement
officer in the position of the applicant could have instituted an
action soon after his release. His failure to explain the steps
he
took demonstrates a lack of good cause for the delay.
[12]
During
the argument, Mr Mngomezulu, counsel for the applicant, was invited
to point out where on record the applicant deals with
what steps were
taken upon his released. Counsel was constrained to concede that
there is no explanation save to say that the notice
was issued
shortly after he became aware about it in June 2017. His counsel's
contention is that soon after the applicant became
aware of the
legislation, a notice was sent to the offices of the respondent which
was followed by issuing of summons and the launching
of this
application.
[13]
Mr
Mngomezulu referred to a decision of this court where a condonation
was granted even though there was a delay in serving the
notice.
Counsel for the respondent's contention was that she has not been
given a copy or citation of the said case and it was
not in the heads
of argument filed by applicant's counsel and was objecting a reliance
to the said case because it was not referred
to in the applicant's
heads of argument.
[14]
I
offered her the opportunity to have the matter stand down so that she
could read the judgment. She opted not to take the opportunity.
She
submitted that that case would not change the fact the applicant
failed to give reasons for the delay and that therefore the
application should be dismissed.
[15]
Mr
Mgomezulu referred the court to the unreported case of
Oletsitse
v Minister of Police
[7]
(hereinafter referred as Oletsitse case).
In
that case there was also a delay in serving the notice in terms of
section 3 of the Act. In
the
Oletsitse
case the applicant was
arrested without a warrant by the South African Police Services. He
was in detention for a period of ten
days. The charges were later
withdrawn. Shortly thereafter he consulted attorneys and summons was
issued suing the Minister of
Police for vicarious liability. The
respondent in that case raised a special plea amongst other things
that there was no condonation
application for the late institution of
the legal proceedings. The application for condonation w s launched
approximately after
twenty-six months from the date when the cause of
action arose. The court after considering the arguments and evidence
presented
granted condonation for the late filing of the notice in
terms of section 3 of the Act.
[16]
The
Oletsitse
judgment
does not help the applicant in his case. In
Oletsitse
the applicant gave reasons for the
delay as follows:
"Para[19] The Applicant's explanation
for delay reads
as
follows:
I at all relevant times honestly believed
that I could act against the defendant once the case against me had
been disposed of.
I respectfully submit that the delay in the
delivery of the said notice on 15 September 2015 (sic)
was
due to my initial incorrect belief
that the prosecution against me had to be completed . I respectfully
submit that the delay
was
not
caused
as
a
result of a deliberate action or intention to prejudice that
defendant. I did not have any knowledge of the legal process and
I
w
s
not aware that
a
notice had to be submitted within six
months after the claim has arisen.
"
[17]
In
Maguga case
[8]
the applicant clearly explained the
steps he took and he took those steps timeously. In para [31] the
following appears:
"[31] It is evident
from Maguga's affidavit that he took action with some expedition:
soon after he had been
treated in hospital, he reported what had
happened to him at the Duncan Village police station. It is clear too
that from an early
stage he was intent on pursuing a civil remedy
against his assailants. As a lay person, he was reliant on the advice
of the attorney
who he consulted. Through no fault on his part he was
misinformed and given erroneous legal advice that prevented a notice
from
being given timeously."
[18]
In
Maguga the court draws a distinction in the application for
condonation in terms of the rules and in terms of section 3(4) of
the
Act
[9]
.
[19]
In
the instant case the applicant says that he was acquitted on 20 May
2016. He does not give account of what steps he took to have
his
matter brought to court. He only consulted the attorneys on 14 June
2017, which is a period of about thirteen months after
his acquittal
but he neglects to provide any reason, whatsoever, as to why he did
not seek legal advice sooner. The applicant in
the
Oletsietse
case
explains clearly his mistaken
belief and that he took steps immediately after the withdrawal of the
charges.
[20]
The
applicant makes a bold statement that he was unaware of the time
period but does not take the court to his confidence explaining
the
delay from 9 February 2015 to 14 June 2016 or the at least from the
date when his criminal matter was finalised in court.
[21]
I
agree with counsel for the respondent that the applicant has failed
to provide sufficient reasons for the delay in serving the
notice in
term of section 3 of the Act. In my view a bad precedent may be set
if the court were to condone the laxity of the litigant
where no
explanation is provided for the delay. The court is not persuaded
that the explanation provided by the applicant is reasonably,
in fact
he gave no explanation at all the for delay to consult his attorney
after he was acquitted on 20 May 2016.
Prospects of success
[22]
The
applicant's contention is that he has good prospects of success on
the merits of his pending action against the respondent.
He says he
was never afforded an opportunity to provide an explanation by the
arresting police officer, Constable Mabena. He says
that a firearm
and ammunition was issued to him as he was a police
reservist
[10]
.
During argument both counsel were asked to provide the court with
information as to whether the applicant was given a service
firearm
and ammunition by the officials of the respondent.
[23]
Counsel
for the applicant's submission was that there is no clear indication
from the respondent whether it concedes that the applicant
was
arrested and charged for unlawful possession of firearm and
ammunition which was issued to him by the officials of the
respondent.
The respondent on the other hand argues that the
applicant was arrested in terms of section 40(1), (b) and (e) of the
Criminal
Procedure Act
[11]
(CPA). Section 40(1) of the CPA provides that a peace officer may
without a warrant arrest any person:
(a)
who commits or attempts to commit
an offence in his presence;
(b)
whom
he reasonably suspects of having committed an offence referred to in
schedule 1, other than the offence of escaping from lawful
custody;
(e)who is found in possession of anything
which the peace officer reasonably suspects to be stolen property or
property dishonestly
obtained and whom the peace officer reasonably
suspects of having an offence with respect of such thing.
[24]
The Appeal Court in the case of
Melani
v Santam Insurance
Co Ltd
[12]
sets out the requirements for condonation : amongst the facts usually
relevant are "the
degree of
lateness,
the
explanation
given therefor,
the
prospects
of success
and
the
important of the case
.
The
court held that
what is needed is the
conspectus of all the facts. Thus a slight delay and good explanation
may help to compensate for prospects
of success which are not be
strong. Or the importance of the issue and strong prospects 9f
success may tend to compensate the long
delay".(underlined my
own emphases).
The court held all
those the listed factors should be considered together not in a
piecemeal.
[25]
In
the instant case, the degree of lateness is so huge and no
explanation given by the applicant. It is indeed so that this matter
is of important to the applicant but sight should not be lost on the
side of the respondent as well the matter should reach finality
hence
there are time periods set out by the provisions of section 3 of the
Act for the instituting of the proceedings.
[26]
I
am not satisfied that the applicant has good prospects of success. He
was detained after he was charged for unlawful possession
of
firec;1rm and ammunition and from the evidence presented the police
had reasonably suspicion that the firearm was stolen as
stated in the
respondent's papers.
(iii)
Prejudice
[27]
The
applicant's contention is that the respondent will suffer no
prejudice if this applicant is granted. The respondent on the other
hand submits that the applicant's delay to serve notice prejudices it
as the incident occurred in 2015 which is now almost four
years since
the cause of action arose and the memory of witnesses might diminish
with the lapse of time. Counsel for the respondent
refers the court
to the case of
Mohlomi v Minister of
Defence
[13]
in paragraph
[11]...
Inordinate delays are common in
litigating damage the interests of justice. They protract the
disputes over the rights and obligations
sought to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
the end is it always possible to adjudicate
satisfactorily on cases
that have gone stale. By then witnesses may no longer be available to
testify. The memories of ones whose
testimony can still be obtained
may have faded and become unreliable. Documentary evidence may have
disappeared. Such rules prevent
procrastination and those harmful
consequences of it. They thus serve
a
purpose to which no
exception in principle can cogently be taken".
[28]
The
respondent also referred the court to the
case
of the
Commissioner
for Inland Revenue v Pick n Pay Wholesalers (Pty) Ltd
[14]
where the following remark was made:
".. .
Human memory is inherently and
notoriously liable to error. One knows that people are less likely to
be complete and accurate in
common experience that, during the stage
of retention or storage in their accounts after
a
long
interval than after
a
short one. It is
a
matter of
memory, perceived information may be forgotten or it may be modified,
or added to, or distorted by subsequent information.
One is aware too
that there can occur
a
process of unconscious reconstruction".
[29]
The
respondent contends that the unexplained delay will be prejudicial to
it if the application is granted. The applicant has a
right to
vindicate the infringement of his constitutional rights. However,
there are time lines set for instituting the action
and failing which
an application for condonation is necessary where he/she is required
to provide reasons for delay and to show
the existence of reasonable
prospects of success.
[30]
The
Act requires that the applicant serve a notice to the organ of state
to institute civil proceedings in terms of section 3 of
the Act
within six months from the date the debt became due. The applicant
became aware of such legislation on 14 June 2016 that
he is required
to serve a notice to institute civil proceedings against an organ of
state.
[31]
The
applicant says he endured trial in the regional court for months and
after his acquittal he waited for a year before he sought
legal
advice from an attorney and gives no explanation for such delay. As
the applicant is a police reservist, one can reasonable
expect that
he ought to have known what action to take if he was unlawfully
arrested and detained.
RESULT
[32] In the result, for
the reasons set out above, the applicant's application for condoning
for the late
filing of the notice in terms of Section 3 of the Act
fails.
COSTS
[33] Counsel for the
applicant's contention with regards to costs is that if the
applicant's application
succeeds the court should grant an order with
costs. On the other hand, counsel for the respondent's argument was
that if the application
is granted the court should make an order
that each party to pay its own costs but if the court decide to
dismiss the application
costs should follow the result, the
respondent should also be awarded cost order. Her reason is that the
respondent had to come
to court and oppose the application and the
applicant should be sanctioned by a cost order. The court disagrees
with the approach
suggested by counsel for the respondent regarding a
cost order. In any event the issue of cost is an issue within the
discretion
of the court.
[34]
The
court is of the view that an order that each party pay its own costs
will be just and fair. The applicant is not a vexatious
litigant, he
wanted to get access to court to vindicate his claim for damages for
the alleged unlawful arrest.
ORDER
[35]
The following order is made:
[35.1] The applicant's condonation
application for late delivery of the notice as contemplated in
section 3 of the Institution
of Legal Proceedings against Certain
Organs of State, 40 of 2002 is dismissed.
[35.2] Each party to pay its own
cost
N SKIBI
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Heard
on
: 4 February 2019
Judgment
delivered
:
8
February 2019
APPEARANCES
For
the Applicant
:
Adv. S
Mngomezulu
Instructed by Jafta (Lerato) Attorneys
PRETORIA
Tell: (012) 771-7109
For
the Respondent
:
Adv. V
Mashele
Instructed by State Attorney, Pretoria
[1]
Act 40 of 2002
[2]
Date stamp of the registrar is reflected and the date of service of
the application to the respondent
[3]
2010
(4) SA
10
9 (SCA) at para [11]
[4]
Unreported judgment Case No: 29788/ 2011 ZAPPHC333 (6 May 2015)
[5]
EC Division, Grahamstown (Unreported case CA 342/ 2017 (delivered
27/08/2017)
[6]
[2008] ZASCA 34
;
2008 (3) ALL SA 143
{SCA) and also reported at 2008 [4] SA 312
[7]
(29788/2011 (2015) ZAGPHC333 (6 May 2016)
[8]
Supra at para [31] and [32]
[9]
Para [28] of
Maguga
judgment
[10]
Page 7 of the paginated record para 7
[11]
51 of 1977
[12]
1962(4) SA 531 (A) at 532 C-E
[13]
[1996] ZACC 20
;
1997 (1) SA 124
(CC) para [11]
[14]
1987 (3) SA 435
(A) at page 469 F-G