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[2019] ZAFSHC 118
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Van der Merwe v Minister of Police and Another (2530/2018) [2019] ZAFSHC 118 (11 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
2530/2018
In
the matter between:
JACOBUS
ERASMUS JOHANNES
Applicant
VAN
DER MERWE
and
THE MINISTER OF POLICE
1
st
Respondent
THE NATIONAL DIRECTOR
OF PUBLIC
2
nd
Respondent
PROSECUTIONS
HEARD
ON
:
20
JUNE 2019
JUDGMENT
BY
:
LOUBSER,
J
DELIVERED
ON
:
11 JULY
2019
[1] This
is an application for condonation for the late filing of a notice of
the Applicant’s
intention to institute legal proceedings
against the Respondents within a period of six months from the date
on which the debt
became due
[1]
.
It appears to be common cause that the Applicant was arrested
on a charge of rape on 3
rd
July 2015 without a warrant for his arrest. He was held in
custody until he was eventually released on bail on 14 July 2015.
On 27
th
October 2015 the charge against him was withdrawn by the State,
according to the Applicant. The Respondents dispute this
allegation and maintain that the case was merely removed from the
court roll on that day.
[2]
Be it as it may, on 27
th
July 2017 the Applicant caused the abovementioned statutory notices
to be delivered to the Respondents, and at the end of May 2018
the
Applicant served summons on the Respondents, claiming a total amount
of R800 000 for unlawful arrest and detention, and
for malicious
prosecution. The Respondents filed their plea in the action on
13
th
August 2018, pleading specially that the required notices were not
filed within six months after the cause of action arose, and
that the
action therefore had to be dismissed with costs. The cause of
action arose on 3
rd
July 2015, but allowing for the six month period, the notices were
filed some 18 months late. Section 3 of the Act provides
that a
plaintiff can only institute action after he had served the notice
within six months.
[3]
Having been alerted by the Plea filed by the Respondents that they
were raising the failure
to give notice timeously as a defence to the
Applicant’s claims, he knew that he had to make application for
condonation
in terms of the Act. In this respect Section (4)(a)
provides as follows:
“
(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 a court having jurisdiction for
condonation of such failure.
(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.”
[4]
Since the summons was served on the Respondents within 3 years after
the cause of action
arose, the question of prescription does not
arise in the application for condonation. Only the questions of
good cause shown
and prejudice to the Respondents need to be
considered. There is also another issue that calls for closer
scrutiny in the
present matter, and that is the fact that the
application for condonation was only filed on 20 February 2019 by the
Applicant,
that is some 6 months after he became informed that such
an application was necessary. To make matters even more
cumbersome
for the Applicant, he also filed his replying affidavit in
the application about one month late. He therefore filed an
application
for condonation for the late filing of his replying
affidavit together with the condonation application for the late
filing of
the notices.
[5]
The principles relating to condonation have become settled in our
law. The degree
of non-compliance, the explanation thereof, the
importance of the case and the avoidance of unnecessary delay in the
administration
of justice are among the factors that usually weigh
with a court when it considers an application for condonation
[2]
As for the requirement of an explanation for the delay, it has been
stated by the Supreme Court of Appeal
[3]
that:
“
Condonation
is not to be had merely for the asking. A full, detailed and
accurate account of the causes of the delay and their
affects must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It
must be obvious that, if
the non-compliance is time-related, then the date, duration and
extent of any obstacle on which reliance
is placed, must be spelled
out.”
[6]
Specifically in relation to condonation applications in terms of
Section 4(a) of the Act,
the following observations by our courts are
relevant to the present application:
In
MEC for Education KZN vs Shange
[4]
it was stated that the court is to exercise a wide discretion, that
“good cause” may include a number of factors that
are
entirely dependent on the facts of each case, and that the prospects
of success in the main action play a significant role.
In
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[5]
it was found by Madjiedt AJA at par. 33 that in terms of Section
3(4)(b) a court may grant condonation if it “ is satisfied”
that the three requirements have been met. In practical terms
this means the “overall impression”
made
on a court by the facts set by the parties
[6]
.
At paragraph 35 the learned Judge stated that, in general terms, the
interests of justice play an important role in condonation
applications. In the unreported case of M.D. Marais v Minister of
Safety and Security and the MEC for Roads and Transport (case
no.
1521/2010) it was held by Jordaan, J of this Division that the
explanation for the delay should be full and at least sufficient
and
acceptable.
“
Any
explanation is not ordinarily just regarded as acceptable only
because it is a full explanation. That full explanation
must be
acceptable as well.”
[7] It
is against the backdrop of these principles that the present
application has to be adjudicated.
In his founding affidavit
the Applicant sets out the reasons for the late delivery of the
notices as follows:
“
I,
as a lay person, never knew that I might be entitled to claim damages
from the 1
st
and 2
nd
Respondents and I am even less aware that I had to give the
Respondents notice within 6 months after the causes of action arose.
I only became aware that I might be able to institute a claim as
aforesaid during June 2017 and arranged a consultation with my
attorneys of record to discuss same on the 7
th
July 2017 during which consultation I instructed them to proceed with
the necessary.”
[8] Mr.
Mene, appearing for the Respondents, submitted at the hearing that
the provisions of
the Act would only apply to people who have
knowledge, and not to people without knowledge or legal training,
should the court
find in the Applicant’s favour on this point.
Mr. Els, for the Applicant, submitted that this explanation of the
Applicant
represents a full, reasonable and acceptable explanation.
However, the period of delay before the notices were delivered,
is
not the only aspect that has to be considered, because the delay of 6
months in filing the condonation application is of equal
importance.
If, for instance, it is found that there is no reasonable and
acceptable explanation for the delay in filing
the application, then
it would follow that the application for condonation as a whole
cannot succeed.
[7]
[9]
This is so because in the Rance-case,
supra
,
the Supreme Court of Appeal held that “condonation must be
applied for as soon as the party concerned realizes that it is
required”.
[8]
In the
case of Van Wyk v Unitas Hospital
[9]
the Constitutional Court confirmed the requirement that an applicant
must give a full explanation for the delay, “In addition,
the
explanation must cover the entire period of delay”, the court
stated. In the present application, the Applicant
in his
founding affidavit does not even refer to this delay of six months,
nor does he offer any explanation at all for the delay
in that
affidavit.
[10]
The position in our law is that an applicant must stand or fall by
the facts alleged in his founding
affidavit. Almost a century
ago, in Pountas Trustee v Lahanas
[10]
it was already stated that the facts contained therein form the main
foundation of the application, because those are the facts
which the
respondent ids called upon either to affirm or to deny. Since
this is so, it is not permissible to make out new
grounds for the
application in the replying affidavit. These principles have
been repeated in numerous judgments over the
years. When the
present Applicant realized his omission in this respect when it was
raised by the Respondents, he proceeded
to file a replying affidavit
containing a belated attempt to explain his delay. This
affidavit, incidentally, was also filed
one month late, as mentioned
earlier. The explanation offered by the Applicant in his
replaying affidavit, boils down to
the following: he was waiting for
documents to be discovered by the Respondents, which included copies
of the police docket.
These documents were collected by his
attorneys from the offices of the state attorney on 10 December
2018. He mentions further
that his attorneys proceeded to draft
the application for condonation as soon as possible after the end of
the Christmas holidays.
While this may be so, it still remains
a mystery why the application was then only filed on 20
th
February 2019. The delay is therefore not explained fully and
in such a manner that the explanation covers the entire period
of the
delay, as is required in our law.
[11]
This court is mindful of the fact that not only the explanation for
the delay, but also the prospects
of success in the main action, are
important factors in determining whether condonation should be
granted in a case. If strong
merits or prospects of success are
shown, it may mitigate the fault of the applicant in applications for
condonation
[11]
. A court
may then exercise its discretion in favour of the applicant, despite
a poor explanation for the delay.
[12]
In this case, the Applicant avers that there were no reasonable
grounds for his arrest without a warrant,
that he was deprived of his
freedom without good cause, that there was no prima facie case
against him and that the case against
him was not investigated
properly. As for the malicious proceedings, he alleges that the
prosecution should have realized
that the evidence against him did
not constitute a prima facie case, and that there were no or
insufficient evidence against him.
The evidence were therefore
not properly considered, he alleges. These allegations made by
the Applicant are all denied by
the Respondents.
[13]
It is evident that the Applicant mainly relies on his contention that
there were insufficient or no
evidence against him in an attempt to
show good prospects of success in the main action. He does not
say, however, why he
considers the evidence as such. If there
were solid grounds for his contention, he should have attached to his
founding affidavit
copies of the witness statements so that the court
could assess his allegation of no or insufficient evidence properly.
As
we have seen, he was in possession of those statements more than
two months before his application for condonation was filed.
Without those statements, the court is left with only the bold
allegations of the Applicant, while it is unable to determine whether
there is in fact good merits in the action instituted by the
Applicant. The result is that the merits of his action cannot
tip the scales of the application in his favour.
[14]
Concerning the application for condonation for the late filing of the
replying affidavit, it appears
that the Applicant is blaming his
attorneys for the delay which occurred. This is not deemed as a
reasonable and acceptable
explanation, for an applicant cannot always
escape liability for the default of the legal representative chosen
by him
[12]
.
[15]
In the premises, it is my overall impression that, based on all the
facts and circumstances of both
the applications, I should not
exercise my discretion in favour of the Applicant. I am not
persuaded that good cause exists
for the granting of condonation in
any of the two applications.
[16]
I can find no reason to deviate from the general practice with regard
to costs. There were no
arguments presented relating to the
costs of postponement on 28 March 2019 and 30 May 2019, and there
will be no orders relating
thereto.
[17]
The following order is therefore made:
1.
The
application for condonation for the late filing of the replying
affidavit is dismissed with costs.
2.
The
application for condonation in terms of Act 40 of 2002 is dismissed
with costs.
_______________
P.J. LOUBSER, J
On
behalf of the applicant:
Adv. J. Els
Instructed by:
Loubser
van der Walt Inc
c/o Jacobs Fourie
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. B. S. Mene
Instructed by:
The
State Attorney
BLOEMFONTEIN
[1]
Section 3 (2)(a) of the Institution
of Legal Proceedings against certain Organs of State Act no 40 of
2002 (the Act).
[2]
Dengetenge Holdings (Pty) Ltd v
Southern Sphere Mining and Development Company Limited
(2013) 2 All
SA 251
(SCA) at paragraph 11.
[3]
Per Heher, JA in Uitenhage
Transitional Loacl Council v SA Revenue Service
2004 (1) SA 292
(SCA) at 297 H-J.
[4]
2012 (5) SA 313 (SCA).
[5]
2010 (4) SA 109 (SCA).
[6]
See also Madinda v Minister of Safety
and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at paragraph 8.
[7]
See e.g. OC Potgieter v MEC for
Police, Roads and Transport, unreported judgment of this Division,
case no 3859/2015, paragraph
17.
[8]
Paragraph 39 of the
judgment.
[9]
2008 (2) SA 240
(CC) at
paragraph 20.
[10]
1924 WLD 67.
[11]
Madinda-case, supra, at 317.
[12]
Colyn v Tiger Food Industries
2003
(6) SA 1
(SCA), Saloojee NNO vs Minister of Community Development
1965 (2) 135 (AD).