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[2019] ZAGPPHC 372
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Miselo v Minister of Safety and Security and Others (A858/2015) [2019] ZAGPPHC 372 (7 May 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case
No: A858/2015
7/5/2019
In
the matter between:
SABELO
MISELO
Appellant
and
MINISTER
OF SAFETY AND SECURITY
First Respondent
MINISTER
OF JUSTICE
Second Respondent
DEON
ACKERMAN
Third Respondent
JUDGMENT
D S FOURJE, J:
[1]
This
is an appeal against an order of the Court
a
quo
granted by Hughes J on 20
February 2015 in terms whereof the appellant's application for
condonation in terms of
s 3(4)(b)
of the
Institution of Legal
Proceedings Against Certain Organs of State Act No 40 of 2002
was
dismissed. That Court granted leave to appeal to the Full Court of
this Division on 23 October 2015.
BACKGROUND
[2]
On
14 July 2014 the appellant issued an application in terms whereof he
applied for condonation for the late filing of the written
notice
provided for in
s 3(1)(a)
of the Act. According to the founding
affidavit it appears that on 19 February 2012 the appellant was
arrested on a charge of rape.
After a few days of his arrest his bail
application was refused and he was detained for a period of
approximately 16 (sixteen)
months. On 29 July 2013 he was acquitted.
Notice to the respondents was only given on 12 June 2014.
[3]
The relief sought in the notice of motion reads as follows:
"That the late filing of the written
notice provided for in
section 3(1)(a)
of
Act 40 of 2002 addressed to the
respondents, be condoned."
[4]
The respondents are the Minister of Safety and Security,
the Minister
of Justice and Deon Ackerman. It appears not to be in
dispute that the appellant was arrested by the third respondent, a
member
of the South African Police Service. This explains why the
first and third respondents have been joined. It is not clear why the
second respondent has been joined. In his heads of argument counsel
for the appellant has pointed out that summons was issued
"to
the correct parties",
who are now the Minister of Police,
the National Director of Public Prosecutions and Deon Ackerman.
[5]
The statutory notice was addressed to the Minister of Safety and
Security, the Minister
of Justice and Deon Ackerman. The reason why
the citation of the first respondent has been changed, so it appears,
is to rectify
a mistake as far as the designation of the first
respondent is concerned. The same cannot be said as far as the second
respondent
is concerned. According to counsel for the appellant the
second respondent has in the meantime been replaced with another
party
in the action, being the National Director of Public
Prosecutions.
[6]
In the papers before us there is no
allegation that the statutory notice was also served on the National
Director of Public Prosecutions,
nor has a copy of such a notice been
attached to the founding affidavit. The relief sought in the notice
of motion can therefore
not apply to the National Director of Public
Prosecutions as that office is not a party to the proceedings before
us. I shall therefore
accept that this appeal relates only to the
first and third respondents and not also to the second respondent
(Minister of Justice)
as he has been replaced in the action by
another party.
THE
AFFIDAVITS
[7]
The appellant pleaded his case for
condonation as follows:
"3.3 On or
about 19 February 2012 and at Mamelodi East, I was arrested
wrongfully by a member
...
on
a charge of rape
…
3.4
On
or about twelve days after my arrest, I applied formally for bail but
(it was) turned down by the second respondent and I was
further
detained until the date of my acquittal on 29 July 2013
..
.
3.5
As
from the outset I pleaded not guilty on the alleged charges and did
my utmost best to prove
...
that
I was innocent on the allegations made against me.
3.6
The
DNA samples taken was already forensically analysed and the outcome
thereof in the possession of the first and third respondent
as early
as
21
May 2012 which supported my innocence and still they elected to
continue with the deprivation of my constitutional right to freedom
of person and I was detained as such. I attach hereto
a
letter dated 21 May 2012 as proof
thereof …
3.7
Due
to the gross infringements of my constitutional rights at the hand of
the respondents I decided to institute
a
claim for damages due to the obvious
unlawful arrest and further impairment suffered by
me.
3.8
As
a
layman
I was not aware of the time limits as required by the Act and due to
the Jong period detained I was also out of pocket to
consult a lawyer
immediately."
[8]
There is also an explanation to indicate
that his claim had at that stage not yet become prescribed and that
the respondents
"were not
unreasonably prejudiced by the delay in sending of my written
notice."
A copy of this notice
is attached to the founding affidavit.
[9]
The substance of the defence raised on
behalf of the first and third respondents is that the appellant had
to show
"good cause"
for
condonation and that he has failed to do so. It is also pointed out
that no sufficient and acceptable explanation covering the
entire
period of the delay has been given and that the appellant has failed
to deal properly with the prospects of success as required
by the
relevant legislation. The appellant's allegation that the respondents
would not unreasonably be prejudiced is denied and
it has been
alleged that the first respondent
"is
prejudiced by the failure to give notice setting out briefly the
facts
giving
rise to the debt and such particulars of such debt as are within his
knowledge".
[10] In refusing
the application, the Court a
quo
was of the view that the
appellant's explanation for the delay was lacking in substance as he
has failed to set out in detail acceptable
reasons for the entire
period of the delay. Turning to the prospects of success, it was
pointed out by the Court that
"as soon as the applicant
became aware of the DNA results he had strong merit on his side
against the respondents",
but later in the judgment the
learned Judge indicated that
"I have not been provided with
the entire docket to examine and consider this aspect''.
DISCUSSION
[11]
Section 3(1) of the Act provides that no
legal proceedings for the recovery of a debt may be instituted
against an organ of State
unless the creditor has given the organ of
State notice in writing of his or her intention to institute the
legal proceedings in
question. In terms of ss (2) a notice must be
served on the organ of State within six months from the date on which
the debt became
due.
[12]
Sub-section (4) makes provision for
condonation of a creditor's failure to give proper notice as
required. It provides as follows:
"(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."
[13]
According to the affidavits filed in the
Court a
quo
it
appears to be common cause between the appellant and the first and
third respondents that the claim has not been extinguished
by
prescription. This was also accepted by the Court a
quo.
The issues before us are therefore
first, whether
"good cause"
has been shown by the appellant and
second, whether the first and third respondents as organs of State
would not unreasonably be
prejudiced by the appellant's failure to
give notice in time.
[14]
Our Courts have in the past refrained
from attempting to formulate a definition of what constitutes
"good
cause",
because to do so would
hamper unnecessarily the exercise of the Court's discretion
(
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A and
Ford
v Groenewald
1977
(4) SA 224
(T)
at 225E-G). In
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 316E-G the following was said in this
regard:
"'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, 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
therefore."
[15]
In
Bertie
van Zyl (Ply) Ltd
&
Another v Minister for Safety
and Security
&
Others
2010 (2) SA 181
(CC) at par 14 the Constitutional Court held that
lateness is not the only consideration in determining whether
condonation may
be granted. It pointed out that the test for
condonation is whether it is in the interests of justice to grant it.
This principle
was further explained by the Constitutional Court in
Van Wvk v Unitas Hospital
[2007] ZACC 24
;
2008
(2) SA 472
(CC) par 20 where it was stated:
"This Court has held that the standard
for considering an application for condonation is the interests of
justice. Whether
it is in the interests of justice to grant
condonation depends on the facts and circumstances of each case.
Factors that are relevant
to this enquiry include but are not limited
to the nature of the relief sought, the extent and cause of the
delay, the effect of
the delay on the administration of justice and
other litigants, the reasonableness of the explanation for the delay,
the importance
of the issue to be raised in the intended appeal and
the prospects of success."
[16]
It was pointed out in the same judgment
(par 22) that an applicant for condonation must give a full
explanation covering the entire
period of the delay and the
explanation given, must be reasonable. However, the interests of
justice also require that all issues
pertaining to a matter be
ventilated fully and for all parties to be given the opportunity to
state their case as comprehensively
as possible
(
F
v Minister
of
Safety
and Security
&
Others
2012 (1) SA 536
(CC) par 34).
[17]
The factors that a Court should take
into account must not be considered in isolation. The weight to be
given to any factor depends
on the particular circumstances of each
case. These factors are not individually decisive but must be weighed
the one against the
other (Harms,
Civil
Procedure in the Superior Courts,
827.7, B-182 and the authorities cited by the learned author). For
instance, good prospects of success on the merits might tip
the scale
in an applicant's favour, notwithstanding a weak explanation for the
delay. In these circumstances the strength of an
applicant's case on
the merits becomes crucial
(
Smith
v Saambou Bank Ltd
2002
(6) SA 346
(SECLD) at 349C-D and
Creative
Car Sound v Automobile Radio
Dealers
Association
2007 (4) SA 546
(D&CLD)
at 555C-D).
[18]
According to the founding affidavit it
appears that the appellant's cause of action against the first and
third respondents is that
of unlawful arrest and detention. The first
and third respondents have admitted the arrest and detention. This
constituted a deprivation
of the appellant's liberty and therefore
the arrest and detention is
prima
facie
wrongful. It is now for the
first and third respondents to prove the lawfulness of the arrest and
detention
(Lombo v African
National
Congress
2002
(5) SA 668
(SCA) at 680 par 32}. However, if the arrest was performed
in terms of a warrant, the onus of proving that the warrant was
irregular
and therefore the arrest unlawful, rests on the plaintiff
or the appellant in this case
(Cresto
Machines v Die Afdeling Speuroffisier Noord-Transvaal
1972 (1) SA 376
(A) at 394G). It has
not been pleaded by the first or third respondent that the arrest
took place with a warrant. It therefore
appears to me, on the papers
before us (and I say no more in this regard), that
prima
facie
the appellant has demonstrated
a strong case on the merits for the purpose of condonation.
[19]
However, "good
cause"
also looks at other factors which
bear on the fairness of granting the relief sought. In this regard it
appears that the statutory
notice was late by approximately one year
calculated from the date he was acquitted. The appellant's
explanation is that he was
not aware of the time limits as required
by the Act and, as he was incarcerated for a period of approximately
16 months, he was
also
"out
of
pocket
to
consult
a
lawyer immediately".
As
I understand this explanation it is intended to apply to the entire
period of the delay. Although the explanation is very brief,
I have
no reason to doubt his
bona fides.
The appellant appears to be a layman
and one should be careful not to penalise a person in his position
unnecessarily because he
was unaware of a statutory provision.
Subject to what I say below, his lack of knowledge appears to be a
reasonable explanation.
[20]
His failure to give notice in time, and
to provide a more detailed explanation for the long delay, must now
also be weighed against
possible prejudice which the first and third
respondents may suffer. In this regard I assume that some prejudice
with regard to
the administration of justice or other parties to the
litigation may be inevitable. That is why, it seems to me,
"prejudice"
is
qualified in s 3(4)(b)(iii) of the Act. It states that the Court may
grant condonation if it is satisfied that,
inter
alia,
the organ of State was not
"unreasonably prejudiced"
by the failure.
[21]
The only prejudice raised by the first
and third respondents is the failure to give notice
''setting
out briefly the facts giving rise to the debt and such particulars of
such debt as are within his knowledge".
The
statutory notice dated 10 June 2014 indicates the opposite. It refers
to:
(a)
the name of the appellant and the date
of his arrest;
(b)
a charge of rape;
(c)
the name and number of the arresting
officer, i.e. the third respondent;
(d)
the case number and police MAS reference
number;
(e)
the fact that the appellant was
acquitted on 29 July 2013;
(f)
an allegation that he was unlawfully
arrested and detained;
(g)
a claim for damages in the amount of R12
480 000.00 consisting of R150 000.00 for loss of income and R12 330
000.00 for general
damages;
(h)
a reference to s 3 of the Act and a
request to condone the late notification.
[22]
In my view the notice speaks for itself.
All the necessary particulars to identify this case and to
investigate it properly were
given to the first and third
respondents. It therefore appears to be a proper notice, save for it
being out of time . Furthermore,
it also appears that the arresting
officer (third respondent) was still available at the time when the
answering affidavit was
filed as that affidavit was prepared also on
his behalf. In short, it does not appear that the long delay had
resulted in any unreasonable
prejudice for the first or third
respondent.
[23]
Taking into account all these
considerations and having weighed the one factor against the other,
it appears to me, on the papers
before us, that the appellant has
demonstrated, not only that the first and third respondents were not
unreasonably prejudiced,
but also that he has good prospects of
success on the merits. Both these factors taken together should tip
the scale in the appellant's
favour, notwithstanding a very brief and
perhaps incomplete explanation for the long delay. Having considered
all these factors,
it seems to me that it will be in the interests of
justice to grant condonation. In the result I am of the view that the
appeal
should succeed only insofar as it relates to the first and
third respondents. No order for costs was granted by the Court
a
quo.
have no reason to interfere
with that part of the order.
ORDER
I
propose the following order:
(1)
The appeal insofar as it relates to the
first and third respondents, is upheld;
(2)
The order of the Court
a
quo
is set aside and replaced with
the following:
"(a) The
applicant's late filing of the written notice provided for in s
3(1)(a) of Act 40 of
2002 is condoned insofar as it relates to the
first and third respondents.
(b)
There shall be no order for costs."
(3)
Costs of the appeal shall be paid by the
first respondent.
D
S FOURIE
JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered.
S
BAQWA
JUDGE
OF THE HIGH COURT
PRETORIA
I
agree.
N
JANSE VAN NIEWENHUIZEN
JUDGE
OF THE HIGH COURT
PRETORIA