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[2019] ZAGPPHC 357
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Sandow v National Director of Public Prosecutions and Another (82114/2017, 82115/2017) [2019] ZAGPPHC 357 (11 June 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: 82114/2017
Case No: 82115/2017
11/6/2017
In
the matter between:
CGC
SANDOW
Applicant
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
First Respondent
MINISTER
OF
POLICE
Second Respondent
JUDGMENT
D S FOURIE, J:
[1]
This is an application for condonation in terms of
section 3(4)(b)
of
the
Institution of Legal Proceedings Against Certain Organs of State
Act No 40 of 2002
. The applicant instituted two separate
applications, one against the National Director of Public
Prosecutions and the other against
the Minister of Police. It was
agreed that both applications be heard together and that one judgment
be delivered.
[2]
In case number 82114/2017 the respondent was initially cited as the
National
Prosecuting Authority of South Africa. This appears to be a
misnomer and the parties have agreed that the correct citation should
be the National Director of Public Prosecutions. The applicant
applied for an amendment in this regard which was not opposed. An
order amending the citation of the respondent has already been
granted.
[3]
The facts in both applications are to a large extent the same. On 29
May
2008 the applicant was arrested by members of the South African
Police on a charge of murder. The arrest took place without a
warrant.
He was detained until 9 June 2008 when he was released on
bail.
[4]
On 2 June 2008 he appeared in Court for the first time. He's trial
ran
for almost 4% years and he appeared in Court no less than 36
times. He was convicted of murder and on 15 November 2012 sentenced
to 10 years imprisonment.
[5]
Whilst in prison he drafted his own appeal documents. Only after this
an attorney was appointed by the State to assist him with his appeal.
He was imprisoned for a period of approximately two years
when his
appeal was heard by a Full Bench of this Division on 29 January 2015.
On that day an order was granted that he be released
as soon as
possible. Following the said order on 29 January 2015, and his
release on 30 January 2015, Janse van Niewenhuizen J
handed down a
full judgment (concurred by Mohlamonyane AJ) on 18 February 2015 in
terms whereof the conviction and sentence were
set aside.
[6]
On 4 December 2017 he issued a summons (case number 82114/2017)
against
the National Prosecuting Authority of South Africa which has
now been substituted by the National Director of Public Prosecutions.
The summons was served on the 1ih of December 2017. On 4 December
2017 he issued another summons (case number 82115/2017) against
the
Minister of Police which was served on 13 December 2017. On 2 October
2017 a notice in terms of
section 3
of the said Act was sent by
registered post to the National Prosecuting Authority of South Africa
and the National Director of
Public Prosecutions as well as to the
Minister of Police.
DISCUSSION
[7]
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.
[8]
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."
CASE
NO: 82114/2017 (NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS)
[9]
During argument counsel for the respondent indicated that the only
issue
relates to the question whether or not
"good
cause" has been shown by the
applicant. He conceded that the claim (or debt) has not been
extinguished by prescription and
the organ of State has not been
unreasonably prejudiced by the late delivery of the statutory notice.
[10]
The applicant's claim against this respondent is for malicious
prosecution. His cause of action
was only completed on 29 January
2015 when his conviction and sentence were set aside. The debt became
due on this date. Summons
was issued and served within the period of
three years.
[11]
It was pointed out in the answering affidavit that the respondent had
not been unreasonably
prejudiced by the applicant1s failure to give
timeous notice of his claim as the full record of the evidence as
well as the docket
pertaining to his arrest, detention and conviction
were at all times available. Furthermore, the deponent to the
answering affidavit
is the assistant State Attorney who, in my view,
is unable to deny these allegations. I am therefore satisfied that
both concessions
made in this regard by counsel for the respondent
were properly made.
[12]
The only remaining issue is whether or not
"good
cause"
has been shown by the
applicant. Our Courts have in the past refrained from attempting to
formulate a definition of what constitutes
"good
cause",
because to do so would
unnecessarily hamper 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."
[13]
In
Bertie van Zyl (ptv) 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 Wyk 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 liti
g
ants,
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."
[14]
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).
[15] 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).
[16]
According to the founding affidavit it appears that the applicant's
cause of action is that of
malicious prosecution. It is alleged that
the
applicant
was charged with murder under circumstances
where there was not sufficient evidence justifying such a prosecution
and that the prosecutor
argued for a conviction
"without any
legal basis justifying such conviction".
According to the
applicant the conduct of the prosecutor
"constitutes
malicious, unlawful and unconstitutional conduct".
[17] As I
have indicated above the deponent to the answering affidavit is the
assistant state
attorney. His response to the above allegations is
twofold. First he says that these allegations
"are
noted".
Second he argues that
the applicant has failed to give a full and reasonable explanation
for his failure to deliver the statutory
notice timeously
"which
covers the entire period of the non compliance".
[18] Having
regard to the respondent's failure to answer the applicant's
allegations regarding
malicious prosecution, it appears to me, on the
papers before me, that the applicant has demonstrated a
prima
facie
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 two years and three months calculated from
August 2017 when the six months period had expired.
The applicant was
released on 30 January 2015. According to his explanation he had
already during March 2015 consulted an attorney.
He had to obtain the
appeal record and this apparently took a long time. He then ended the
attorney's mandate and appointed another
attorney. This attorney _had
to obtain his file from the previous attorney and this caused further
delays. He then also terminated
the mandate of the second attorney.
On 25 August 2017 he instructed a third attorney who is the attorney
of record in this application.
He was then informed that he had to
give notice in terms of
section 3(2)
of the Act within six months
from the date on which the debt became due. According to him he was
unaware of this requirement
"as
I
am
not
familiar with the law".
[20] From
the applicant's explanation it appears that shortly after his release
he instructed
the first attorney. No doubt, at all times he pursued
the matter by instructing two other attorneys as well. As I
understand this
explanation it is intended to apply to the entire
period of the delay. Furthermore, the applicant 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. I have
no reason to doubt his
bona
fides.
[21] The
applicant's failure to give notice in time must now also be weighed
against possible
prejudice which the respondents may suffer. I have
already indicated above that there is no issue in this regard. It
should therefore
be accepted that the long delay has caused no
unreasonable prejudice to the respondents. Furthermore, I am also
satisfied that
the applicant has demonstrated a
prima
facie
case on the merits. Taking
into account all these considerations and having weighed the one
factor against the other, it appears
to me that the applicant has
demonstrated that it would be in the interest of justice to grant
condonation. In the result I am
satisfied that
"good
cause"
has been shown and that
the applicant should be granted condonation as prayed for.
CASE
NO: 82115/2017 (MINISTER OF POLICE)
[22]
According to the founding affidavit it appears that the applicant's
cause of action against
the second respondent ("Minister of
Police") is that of unlawful arrest and detention. The applicant
was arrested on
29 May 2008 and detained until 9 June 2008 when he
was released on bail. There is no indication that after his release
he was arrested
again. It therefore appears that his cause of action
arose during May/June 2008.
[23]
On 4 December 2017 he issued summons against the Minister of Police
which was served on
13 December 2017. The statutory notice was only
sent by registered post on 2 October 2017. In terms of
section 2(2)
of the Act a debt which became due will be extinguished by
prescription as contemplated in chapter Ill of the
Prescription Act
no. 68 of 1969
which, in this case, is after a period of 3 years. It
means that the plaintiff's claim had already become prescribed before
summons
was issued. It follows that no condonation under this case
number can be granted.
ORDER
In
case no: 82114/2017 (National Director of Public Prosecutions):
(a) The
applicant's late filing of the written notice provided for
in
section
3(1)(a)
of Act 40 of 2002 is condoned;
(b) The
respondent is ordered to pay the costs of the application.
In
case no: 82115/2017 (Minister of Police):
(a)
The application is dismissed;
(b)
The applicant shall pay the costs of the application.
DS FOURIE
JUDGE OF THE HIGH COURT
PRETORIA