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[2019] ZAGPPHC 42
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Mngadi v Minister of Police and Another (97052/2015) [2019] ZAGPPHC 42 (22 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 NO: 97052/2015
In the
matter between:
SAMKELO
NTANDOYENKOSI MNGADI
Applicant
and
THE
MINISTER OF
POLICE
1
ST
Respondent
THE
NATIONAL DIRECTOR OF
PUBLIC
2
ND
Respondent
PROSECUTIONS
JUDGMENT
MOSOPA J
INTRODUCTION
[1.] This is an
opposed application in which the applicant is seeking an order that
late service
of his notice of intention to institute legal
proceedings to the respondent be condoned in terms of section 3(4)(b)
of the Institution
of Legal Proceedings Against Certain Organ of
State Act, Act 40 of 2002 ("Act"), and that the applicant
be granted leave
to continue with the legal proceedings instituted
under the above case number against the respondent.
FACTUAL BACKGROUND
[2.] The applicant was arrested on the 9 April 2014 at
Alwyn street, Riamer Park, Bronkhorstspruit, Gauteng, without a
warrant of
arrest by unknown members of the respondent on a charge of
robbery.
[3.]
As a result of his arrest, the applicant was detained at the
Bronkhorstspruit Police Station
for a period of approximately five
days.
[4.] The applicant
was consequently released on bail on the 14 April 2014 by the
Bronkhorstspruit
District Magistrate Court.
[5.] It is on that
basis that the applicant is suing the respondents for the amount of
R485
000 00 for his unlawful arrest and detention.
[6.]
The applicant served the respondents with the notice in terms of
section 3(2) of the Act,
by hand, on 3 July 2015.
LAGAL PRINCIPLE
[7.] Section 3 of
the Act provides;
"3
-
Notice of intended legal proceedings to be
given to organ of state.
1)
No legal
proceedings for the recovery of a debt may be instituted against the
organ of state where:-
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 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).
2)
A
notice that:-
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(i); 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)
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 it by exercising reasonable care, unless the organ of
state wilfully prevented him
or her or it from acquiring such
knowledge, and
b)
A
debt referred to in Section 2(2)(a), must be regarded as having
become due on the fixed date.
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
the court having
a
jurisdiction for condonation of such
failure.
b) The court may grant application referred to in
paragraph
(a)
if it is satisfied that:-
i.
the debt has not been extinguished by
prescription,
ii.
good care exist for the failure by the creditor,
iii.
the organ of state was not unreasonably
prejudiced by the failure."
[8.]
In Madinda v Minister of Safety and Security, Republic of South
Africa 2008(4) SA 312 (SCA)
Heher JA observed;
"par
6
-
section
3(4)(b) circumscribe
a
court's power to grant condonation by
requiring that it be satisfied that,
i.
The
debt has not been extinguished by prescription,
ii.
The
good exists for the failure by the creditor, ie to serve the
statutory notice according to section 3(2)(a) or serve
a
notice
that complies with the prescription of section 3(2)(b), and
iii.
The
organ of state was unreasonably prejudiced by the failure
Par 8- the phrase "lf (the court) is satisfied"
in section 3(4)(b) has long been recognised as setting
a
standard which is not proof on
a
balance of probability. Rather it is the
overall impression made on
a
court which brings
a
fair mind to the fats set out by the
parties. See eg Die Afrikaanse Peers Beperk v Neser
1948 (2) SA 295
(c) at 297. I see no reason to place
a
stricter construction on it in the present
context."
9.
Section 40 of the Criminal Procedure Act, Act 51
of 1977 provides:-
"40
-
Arrest by
a
police officer without warrant.
i.
A peace officer may without warrant arrest any person
a)
Who commits or
attempts to commit any 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;
c)
Who has
escaped or who attempts to escape from lawful custody;
d)
Who has in his
possession any implements of housebreaking or car breaking as
contemplated in section 82 of Criminal Law Third Amendment
Act, 1993,
and who is unable to account for such possession to the satisfaction
of the peace officer;
e)
Who is found
in possession of anything which the peace officer reasonably suspects
to the stolen property or property dishonestly
obtained, and whom the
peace officer reasonably suspect of having committed an offence with
respect to such thing,
f)
Who is
found at any place by right in circumstances which afford reasonable
grounds for believing that such person has committed
or is about to
commit an offence.
g)
Who is
reasonably suspected of being or having been in unlawful Possession
of stock or produce as defined in any law relating to
the theft of
stock or produce;
h)
Who is
reasonably suspected of committing of having committed an offence
under any law governing the making, supply, possession
or conveyance
of intoxicating liquor or dependence-producing drugs or possession or
disposal of arms and ammunition,
i)
Who is
found in any gambling home or at any gambling table in contravention
of any law relating to the prevention or suppression
of gambling or
games of chance,
j)
Who
wilfully obstructs him in the exemption of his duty,
k)
Who has been
concerned in or against whom a reasonable complaint has been made or
credible information has been reached or a reasonable
suspicions
exists that he has been concerned in any act committed outside the
Republic which, if committed in the Republic, would
have been
punishable as an offence, and for which he is, under any law relating
to extradition or fugitive offenders, liable to
be arrested or
detained in custody in the Republic,
I)
Who
is reasonable suspected of being a prohibited immigrant in the
Republic in contravention of any law regulating entry into or
residence in the Republic,
m)
Who
is reasonably suspected of being
a
deserter from the South
African National Defence Force,
n)
Who
is reasonable suspected of having failed to observe any condition
imposed in postponing the passing of sentence under this Act,
o)
Who
is reasonably suspected of having failed to pay any fine or part
thereof on the date fixed by order of court under this Act,
p)
Who
fails to surrender himself in order that he may undergo periodical
imprisonment when and where he is required to do so under
an order of
court or any law relating to prison;
ii.
If a person may
be arrested under any law without warrant and subject to conditions
or to existence of circumstances set out in
that law, any peace
officer may without warrant arrest such person subject to such
condition or circumstances ."
ISSUES
FOR DETERMINATION
10.
The following are the issues for me to determine,
10.1
Whether
the debt has been extinguished,
10.2
Whether
there exist a good care on the side of the creditor in delaying
bringing the notice and
10.3
Whether
the Organ of State will suffer any prejudice.
IS
THE DEBT EXTINGUISHED?
11. The
applicant was arrested on the 9 April 2014 and was released on bail
on the 14 April 2015. The notice in terms of section 3(2) of the Act
was dispatched to the respondent on the 3 July 2015 and consequently
the summons issued on the 4 December 2015.
12. Since the
applicant was released in detention until time when summons
was
issued, a period of three years has not yet lapsed and as such the
debt is not yet extinguished by prescription.
GOOD CAUSE
13. In Madinda
v Minister of Safety and Security (supra) at paragraph 12
the court
observed;
"12-"Good cause usually comprehends the
prospect of
success
on the
merit of
a case,
for obvious
reasons: Chetty v Law Society, Transvaal 1985(2) SA 756(A) at 765
0-E. But
as
counsel for the
respondent
stressed ,
whether
that
is
the core must depent
on the terms of the statute in which it is found. In section
3(4)(b)(ii), there
is a
specific
link created between the delay and the good
cause
".
According to counsel's submission, no
matter how strong an applicant's
case
on
the merits that consideration cannot be casually tried to the
reasons
for the delay, the effect
is
that the merit can be taken into account only if
and when the court has been satisfied and
comes
to exercising the discretion to condone. I do not
agree. "Good cause for 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, and 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 mitigation 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 the Organ of State
not to be unduly prejudiced limit for the giving of notice.
Subparagraph (ii)
is
directed,
at least in part, to whether the subject should be denied
a
trial on the merits. If it were not
so,
consideration on of prospects of
success
could be entirely excluded from the equation on
the ground that failure to satisfy the court of the existence of good
cause precluded
the court from exercising its discretion to condone.
That would require an unbalanced approach to the two elements and
would hardly
follow the interest of Justice. Moreover, what can be
achieved by putting the court to the task of exercising discretion if
there
is no prospect of success? In addition that the merits are
shown to be strong or weak may colour an applicant's explanation for
conduct which bears on the delay; an applicant with an overwhelming
case is hardly likely to be careless in pursing his or her
interest,
while one with little hope of success can be easily understood to
drag his or her heels. As I interpret the requirement
of good cause
are a relevant considerations. The learned Judge a quo misdirected
himself in ignoring them."
14.
The applicant gives as reasons for his delay in
the following;
14.1
that he is a lay person and was hesitant to proceed
with such proceedings and wary of the victimization that might follow
after
such step,
14.2
he was severely traumatised that his psyche is still
severely insulted;
14.3
he was emotionally and psychologically imparted to such
an extent that he could not act earlier particularly because his
psychological
trauma and consequential trauma he suffered.
15. Mr Thumbathi
submitted that in addition to the above the applicant stands a
good
chance of succeeding in his matter as they is also another matter of
Mr Mpandla emanating from the same incident in which
the respondent
did not oppose his application for condonation of his late filing of
section 3(2) notice.
16. Mr Malowa on
behalf of the respondent contended that it is incumbent upon the
applicant in order to be successful under the requirement, to state
accurate, clear account of what happened. If the person is
a lay
person like the applicant, the person must state when did he or she
consulted his or her legal representative on his particular
case.
17. Furthermore the
applicant alleges trauma, but does not state the circumstances
that
brought trauma. The applicant does not state that he saw a specialist
or whether or not he was hospitalised as a result of
such trauma.
18. I fully agree
with Mr Malowa that the applicant did not state the circumstances
that led to his trauma or that he saw a specialist who assessed his
condition. However it is common knowledge that arrest and detention
is traumatic, looking at the condition of the state of our prisons,
overcrowding is the order of the day and abuse at the hands
of the
inmates is a daily occurrence in our prisons.
19. I am satisfied
that the applicant satisfied this requirement and more especially
in
relation to how the respondent treated his case as opposed to that of
Mr Mpandla which emanates from the same incident.
PREJUDICE
20.
The applicant is of the view that the respondent cannot suffer any
prejudice
if the application is granted mainly based on the fact
that, all evidence to be used in trial, with reference to the
applicants
docket and file is still ascertainable and can be sourced
by the respondent with ease.
21.
No evidence was presented before me that the docket is no longer
available or
that the possible witnesses the respondent intends to
use are no longer available.
22. The onus is on
the applicant to prove that the respondent will suffer prejudice
if
condonation is granted, and based on evidence before me. I see no
prejudice suffered by the respondent. It is for that reason
that this
application must succeed.
ORDER
23. I therefore
make the following order:
1. Application for the
condonation of the late filing of section 3(2) notice is granted.
2. The respondent is
ordered to pay the costs of this application.
M J MOSOPA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARANCES
For the applicant
Adv D Thumbathi
Instructed
by
Gildenhys Malatji Inc.
For respondent
Adv Malowa
Instructed by
State Attorneys, Pretoria
Date of hearing
14 November
2018
Date of judgment
22 February 2019