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[2019] ZAFSHC 217
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Sefatsa and Others v Minister of Police and Others (A44/2019) [2019] ZAFSHC 217 (14 November 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A44/2019
In
the matter between:-
MASOPHA
JOHANNES
SEFATSA 1
st
Appellant
SAMSON
TAELO
POKEDI 2
nd
Appellant
STEPHEN
MOLETE 3
rd
Appellant
LEHLOHONOLO
RADEBE 4
th
Appellant
GEORGE
PLAATJIES 5
th
Appellant
MATSELISO
JERMINA
NDLOVU 6
th
Appellant
TSHEDISO
MASIMONG 7
th
Appellant
LEBOYA
MATSHANENG 8
th
Appellant
NTHABELENG
LICHAKANE 9
th
Appellant
THABISO
MPHATSENG 10
th
Appellant
LERATO
MOSALA 11
th
Appellant
MANTOETSI
MOLAPO 12
th
Appellant
MPHO
MOLOI 13
th
Appellant
And
THE
MINISTER OF
POLICE 1
st
Respondent
VICTOR
JABULISA
RADEBE 2
nd
Respondent
MR
MBELEKANE 3
rd
Respondent
DIRECTOR
OF PUBLIC
PROSECUTIONS 4
th
Respondent
ADVOCATE
STASSEN 5
th
Respondent
CORAM:
VAN ZYL, MOLITSOANE,
JJ et MOENG AJ
HEARD:
12 AUGUST 2019
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED:
14
NOVEMBER 2019
[1]
This is an appeal against part of a judgment of a single judge of
this division dismissing an application for condonation for
failure
to comply with the provisions of s 3(4)(b) of the Institution of
Legal Proceedings against certain Organs of State Act,
40 of 2002
(the Act). The appeal is with leave of the court of first instance.
[2]
The facts pertaining to the causes of action
s
of the
Appellants are largely common cause and may conveniently be
summarised as follows:
The
First to the Fourth appellants were arrested on the 19
th
August 2013 and were released the next day, on the 20
th
August 2013. The First Appellant was also allegedly assaulted upon
his arrest on the 19
th
August 2013. These four appellants
were again arrested on the 31
st
January 2014 and were
released from custody on the 2
nd
July 2014.
[3]
The remaining Appellants were arrested on the 31
st
January
2014 and released on the 1
st
February 2014. All thirteen
Appellants were charged with various offences but their prosecution
was unsuccessful as all of them
were subsequently acquitted.
[4]
The Appellants, thereafter, instituted actions against, among others,
the first respondent for unlawful arrest and detention
as well as
malicious prosecution against the fourth respondent. The first
appellant also sued the first respondent for assault.
The first
respondent raised a special plea alleging non-compliance with the
provisions of s3 (4) of the Act. The said plea prompted
the
Appellants to bring a condonation application.
[5]
The court
a quo
refused condonation for the claims of assault,
unlawful arrest and detention against the first respondent but
granted same for
the claim of malicious prosecution against the
fourth respondent. This appeal is against the refusal of condonation
against the
first respondent.
[6]
I consider it necessary to refer to the applicable legal framework.
Section 3(1) of the Act obliges a creditor who intends to
institute
an action to recover a debt against an organ of state, to serve a
written notice in accordance with s4 (1) within six
months from the
date on which such a debt became due, before such a creditor
institutes an action, unless the organ of state in
question has
consented in writing to the institution of the legal proceedings
without such notice. Section 3(3) on the other hand
provides as
follows:
“
(3) for the
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 the facts
giving rise to the debt,
but a creditor must be regarded as having acquired such knowledge as
soon as he or she or it could have
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.”
[7]
Where the creditor has failed to give notice as envisaged in s3 (1)
he may approach the court for an indulgence in terms of
s3 (4) (a)
where the respondent raises non-compliance. Section 3(4) (b) deals
with the requirements for condonation and provides
as follows:
“
The court may
grant an application referred to in paragraph (a) if it 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.”
[8]
These requirements are conjunctive and must be established by the
applicant who seeks an indulgence for non-compliance with
the Act
[1]
.
Such an applicant also bears the onus to satisfy the court that all
the three requirements aforementioned have been met. In
Madinda
v Minister of Safety and Security
[2]
it was held that “the standard of proof is not on a balance of
probabilities but rather an overall impression made on the
court
which brings a fair mind to the facts set up by the parties.”
Once the court is satisfied that the three requirements
have been
satisfied, the court may exercise its discretion and grant
condonation.
[9]
The issue for determination is whether the court
a quo
was
correct in finding that the appellants had not met the threshold as
envisaged in s3(4)(b) of the Act and were not entitled
to condonation
for non-compliance with the said statute.
[10]
The appellants were arrested and detained by members of the IPID on
different dates as alluded above. It is the case for the
appellants
that they were not aware that the first respondent was a co-debtor as
they were not aware that the members of IPID resorted
under him. The
appellants further assert that they only became aware that the IPID
members resorted under the Minister on the 1
st
March 2017.
[11]
It is submitted on behalf of the first respondent that the first to
the fourth appellants were for the first time arrested
on the 19
th
August 2013 and released on the 20
th
August 2013 and their
claims for wrongful arrest and detention became due on the 20
th
August 2013. On the second arrest of the 31
st
January 2014 and subsequent release of the 2
nd
July 2014
their claims became due on the 2
nd
July 2014. The fifth to
thirteenth appellants were arrested on the 31
st
January
2014 and were released on the 1
st
February 2014.Their
claims became due on the 1
st
February 2014.
[12]
It is trite that the prescription period for assault, unlawful arrest
and detention is three years. For prescription to begin
to run the
creditor must know the identity of the organ of state and the facts
giving rise to the debt. Clearly the assertions
by the appellants are
that their claims for unlawful arrest and detention against the first
respondent had not prescribed as they
only became aware of the
identity of the said respondent as a co-debtor when they were so
advised by their attorney on the 1
st
March 2017. The
respondent makes no issue with the assertion that the appellants only
became aware that the first respondent was
a co-debtor when they were
so informed by their attorney. In response to this allegation, it is
pleaded on behalf of the first
respondent that the allegations are
‘
noted
’. The first respondent does not dispute the
allegations of the appellants.
[13]
In the pleadings filed, it is not the case for the first respondent
that appellants could have acquired the knowledge of the
identity of
the debtor by exercising reasonable care. The court
a
quo
found that the appellants could
have acquired knowledge of the identity of the first respondent as a
co-debtor by exercising reasonable
care and failed to act diligently
to take steps which a reasonable person in their position would have
taken. This finding is not
supported by evidence.
[14]
It has to be borne in mind that the defendant bears the full
evidentiary burden to prove prescription including the date on
which
a plaintiff obtained actual or constructive knowledge of the debt
[3]
.
The mere fact that such knowledge resort in the knowledge or expected
knowledge of the appellants will not divest the respondent
of the
incidence of proof. It is clear that the court
a
quo
based its finding on failure to prove constructive knowledge
[4]
of the debt. The court
a
quo
held ‘
that
the appellants failed to provide any information regarding
investigations as to the identity of the co-debtor’.
In
my view, by so holding, the court
a
quo
shifted the burden of proof to the appellants. The burden shifts to
the appellants only if the respondent has established a prima
facie
case
[5]
.
[15]
As alluded above the evidence that the appellants were not aware of
the identity of the Minister as a co-debtor remain uncontested
and it
has to be accepted that appellants only became aware of such identity
on the 1
st
March 2017. In the absence of any contention by
the first respondent to the contrary, I am satisfied that the
appellants were not
aware until 1
st
March
2017 that the members of IPID resorted under the first respondent and
consequently that the he or she was a co-debtor.
[16]
In finding that the claims of the appellants in respect of the
unlawful arrest and detention had prescribed the court
a
quo
placed much reliance on
Mtokonya
v Minister of Police
[6]
.
In
Mtokonya
the court was called upon to decide whether s 12(3) of the
Prescription Act requires a creditor to have knowledge that the
conduct
of the debtor giving rise to the debt is wrongful and
unlawful before prescription may begin to run against such a
creditor. The
court held that s12 (3) did not require knowledge of
legal conclusions or remedies but only knowledge of the identity of
the debtor
and the facts giving rise to the debt.
[17]
In
Mtokonya
, unlike in this case, knowledge of the identity of
the debtor was not in dispute. While it is common cause that the
appellants
knew the identity of the members of IPID who arrested and
detained them, same cannot be said with regard to the first
respondent
as a co-debtor. In this regard
Mtokonya
is
distinguishable and reliance on it was misplaced. I am satisfied that
the claims of the appellants have not prescribed and the
first
requirement for condonation has been met.
[18]
The second requirement in the condonation application requires the
determination of whether the appellants have satisfied ‘good
cause’ for their delay. In the determination of this
requirement the court is required to examine factors which relate to
the fairness of granting the relief sought and the proper
administration of justice. One must also examine the reasons for the
delay, the explanation given, the prospects of success in the
proposed action, the bona fides of the applicant and any contribution
by other persons or parties to the delay
[7]
.
In this regard the court has a wide discretion
[8]
.
[19]
It is the case for the appellants that during February 2017 they made
contact with their attorney in order to seek assistance.
Their
attorney requested that the appellants pay a deposit of R23 000
when they came for the consultation and also to bring
copies of the
dockets which formed the subject of their arrest, detention and
prosecution. According to the appellants they struggled
to raise the
deposit asked as their salaries had been stopped when they were
suspended. It is their contention that they also struggled
to obtain
some of the copies of the dockets.
[20]
In opposition the respondents aver that the appellants did not
provide proof of payment of the deposit and according to the
respondents such a struggle to obtain the deposit was ‘
irrelevant
because the [Appellants] consulted and sent a notice before they paid
a deposit.’
[21]
The assertion by the respondents that the lack of funds to instruct
an attorney was irrelevant cannot hold water and stands
to be
rejected. Firstly, the facts of lack of funds remain uncontested.
Secondly, it remains uncontested that the appellants only
came to
know about the question of a notice to be issued in terms of the Act
only upon consultations on the 1
st
March 2017. In this
regard, there is reason to believe that the consultation may have
occurred after payment of the deposit. In
the exercise of the wide
discretion this court has in the evaluation of the reasons for the
delay, I have no reason to reject the
assertion by the appellants. In
the absence of any evidence to the contrary I also have no reason to
reject the assertion by the
appellants that they also struggled to
obtain copies of the docket as requested by
their
attorney.
[22]
It is an established principle that issues like prospects of success
may mitigate a weak explanation for the delay. The appellants
aver
that they were nicknamed the ‘Rambo Squad’ by the
community of Ficksburg. They further aver that there were complaints
by the said community that members of this ‘Rambo Squad’
terrorised the community. The appellants deny that these allegations
against them were true. It is common cause that they were arrested,
detained and prosecuted unsuccessfully. They were discharged
in terms
of section 174 of the Criminal Procedure Act and it can thus be
accepted that there was no evidence against them upon
which a
reasonable court could convict. On this basis I have reason to
believe that the appellants have good prospects of success
in the
merits of their claims and they have thus shown good cause herein.
[23]
In the final analysis it is also necessary to determine whether the
organ of state will not be unreasonably prejudiced by the
failure of
the appellants to issue the notice within the prescribed period. In
amplification of the potential prejudice, it is
submitted on behalf
of the first respondent that ‘
there are in excess of twenty
potential witnesses that were involved in the matter which will be,
more likely than not, extremely
difficult for the respondents to
locate should the need arise.’
[24]
The allegation made in the paragraph above is couched in general
terms. The appellants aver that the arresting officers are
still
available. It is not the case for the first respondent that the
arresting officers are no longer available. In the absence
of an
allegation contrary to the allegation by the appellants, I must
decide this point on the basis of the uncontested evidence
by the
appellants and find that the witnesses are still available. I can
find no prejudice on this basis.
[25]
The fact that the witnesses are many does not necessarily imply that
they are untraceable. No case is made as to what would
make it
difficult to trace the witnesses. The first respondent does not
explain which witnesses are unlikely to be untraceable
and on what
basis they cannot be traced. I am unable to find that the witnesses
may be untraceable and consequently that the first
respondent will be
prejudiced by granting condonation.
[26]
It is axiomatic that a finding must correlate with the subsequent
order made. The court
a quo
granted condonation for the claim
of malicious prosecution. The judgment, however, reveal that
condonation was essentially denied
for the claims of assault, arrest
and detention on the basis that such claims have prescribed. In its
judgment, however, the court
a quo
held that the claims for
the unlawful detention of the first four appellants and the claims
for malicious prosecution have not
become prescribed. In spite of
this finding, the court still refused to grant condonation for the
detention of the first four appellants.
It is unclear from the record
why the court granted condonation for the claim of malicious
prosecution but denied same for the
claims of detention of the first
four appellants where the court specifically found that both claims
(malicious prosecution and
detention) had not prescribed. In this way
there is no correlation between the finding and the subsequent order
the court
a quo
made. Condonation should therefore have been
granted to the first four appellants for their claims of unlawful
detention.
[27]
In addition and in view of my findings that none of the claims of the
appellants have prescribed and that they have shown good
cause,
condonation should also be granted pertaining to the rest of the
claims of all the appellants.
[28]
As alluded above, the court a quo granted condonation against the
fourth respondent on a claim of malicious prosecution. The
court a
quo also ordered the appellants to pay costs of the fourth respondent
jointly and severally as the said court was of the
view that seeing
that the appellants were, inter alia, seeking an indulgence that
justified a cost order against them. It has,
however, to be borne in
mind that in the condonation application in terms of the Act an
indulgence is sought for an enforcement
of a right as opposed to
enforcement of a court procedure or rule. The appellants in the heads
of arguement referred this court
to the decision of
Premier,
Western Cape v Lakay
[9]
in which the following was said with reference to costs in
condonation applications in terms of the Act:
“
...Ordinarily, in
applications for condonation for non-observance of court procedure, a
litigant is obliged to seek indulgence of
the court whatever the
attitude of the other side and for that reason will have to pay the
latter’s costs if it does oppose
, unless the opposition was
unreasonable. I doubt that this is the correct approach in matters
such as the present, as an application
for condonation under the 2002
Act has nothing to do with non-observance of court procedure, but is
for permission to enforce a
right, which permission may be granted
within the prescribed statutory parameters; and such an application
is (in terms of s3 (4))
only necessary if the organ of State relies
on a creditor’s failure to serve notice. In the circumstances
there is much to
be said for the view that where an application for
condonation in a case such as the present is opposed, costs should
follow the
result”
[29]
The condonation application against the appellants was opposed in the
court a quo by the First to the fourth respondents. The
appellants
were, however, successful in seeking an indulgence. I can find no
reason to depart from the practice that costs should
follow the
result. In my view the court a quo should have granted costs against
the First to the fourth respondents. I accordingly
propose the
following orders:
ORDERS
1.The
appeal is upheld and the second and third orders of
the court
a quo
are set aside and replaced with the following:
(a)
Condonation for non-compliance with the
provisions of Act, 40 of 2002 is granted to the Appellants with costs
in respect of the
claims against the respondents.
(b)
The First Respondent is ordered to pay the
costs of the appeal.
___________________
P.E.
MOLITSOANE, J
I
agree
__________________
L MOENG, AJ
I
agree and it is so ordered.
______________
C
VAN ZYL, J
On
behalf of Appellant:
Adv BS Mene SC
Instructed by:
S.M.O Seobe Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. A Williams
Adv, K Nhlapo
Instructed by:
State Attorney
BLOEMFONTEIN
[1]
Minister of Agriculture and Land Affairs v CJ Rance(Pty) Ltd 2010(4)
SA(SCA) at par [11]
[2]
2008(4) SA 312(SCA) at 316 par [8]
[3]
Macleod v Kweyiya (365/12)
[2013] ZASCA 28
( 27 March 2013) par [10]
[4]
Macleod v Kweyiya(supra) at [9]… ‘Actual knowledge is
established if it can be shown that the creditor knew the
facts and
the identity of the debtor. …..Constructive knowledge is
established if the creditor could reasonably have acquired
knowledge
of the identity of the debtor and the facts on which the debt arises
by exercising reasonable care.’
[5]
Macleod( supra) at par [10]
[6]
2018(5)SA 22 (CC)
[7]
Madinda v Minister of Safety and Security(supra) at par[10]
[8]
MEC For Education,KZN v Shange 2012(5) SA 313 at page 320 par [15]
[9]
2012(2) SA 1 (SCA) at par [25]