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[2019] ZANCHC 44
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Smit and Another v Minister of Police (1213/18) [2019] ZANCHC 44 (28 June 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBELEY)
Case No: 1213/18
Heard On:
03/05/2019
Delivered:
28/06/2019
In the matter between:
HEINRICH SMIT
1st Plaintiff/1
st
Applicant
SHEREEN SMIT
2nd
Plaintiff/2
nd
Applicant
AND
MINISTER OF
POLICE
Defendant
JUDGMENT
PAKATI J
[1]
The applicants/plaintiffs, Mr Heinrich Smit and Shereen Smit,
instituted action against the defendant/respondent,
the Minister of
Police for payment in the amount of R1 460 000-00 arising
from a claim for damages for unlawful arrest
and detention of Mr Smit
(the first applicant) from 17 until 19 January 2017. The second
applicant, Ms Smit, instituted the action
in her capacity as mother
and guardian of her minor child, H Smit. They apply for condonation
for the late filing of the notice
to institute legal proceedings
against the respondent within six months as prescribed by section 3
of the Institution of Legal
Proceedings against Certain Organs of
State Act
[1]
(“the Act”). The application is brought in terms of
section 3 (2) and 4 (b) of the Act. The applicants also seek an
order
to compel discovery. The respondent opposes the applications. For
convenience, I will refer to the parties as the applicants
and
respondent.
BACKGROUND
FACTS
[2]
On 17 January 2017 Mr Smit was allegedly wrongfully and maliciously
arrested by the members of the South African
Police Services
(“SAPS”). The respondent is the Executive Authority of
the SAPS and its members acted within the cause
scope of the
respondent’s authority. It is common cause that the arrest was
without a warrant. Mr Smit says that when he
was arrested he was
unaware of the charges against him and was released from custody on
19 January 2017.
[3]
The applicants allege that Mr Smit was arrested in their residence in
the presence of their 10 year old daughter
who witnessed him being
handcuffed and/or forced into a police vehicle and taken away. Ms
Smit’s (the second applicant’s)
claim is based on
emotional and psychological trauma they suffered.
[4]
Mr Smit alleges that the members of the SAPS did not have reasonable
grounds to suspect him of having committed
any offence referred to in
Schedule 1 of the Criminal Procedure Act (“the CPA”)
[2]
as contemplated in section 40 (1) (b) of the CPA. He alleges further
that the members of the SAPS did not exercise the discretion
conferred on them by section 40 (1) of the CPA alternatively did not
exercise such in good faith, rationally and not arbitrarily.
He
states further that he was not arrested to be brought before court
but to be punished. The arrest and ensuing detention constituted
an
infringement on his rights as enshrined in section 35 of the
Constitution of the Republic of South Africa
[3]
,
the argument goes. According to him the members of the SAPS failed to
bring him before court as soon as reasonably possible. He
states
further that they failed to appreciate and or exercise their
constitutional duty to ascertain and/or inform him as reasonably
possible of his right to bail and/or the right to legal
representation.
[5]
At the beginning of February 2018 the applicants gave instructions to
Mr Gerhard Geyer Labuschagne of Labuschagne
Attorneys to institute
civil action on their behalf. When they approached him the six
months’ time period in which the demand
is required in terms of
the Act had lapsed. They say they approached him at a late stage
because they did not have funds to formally
instruct him.
[6]
On 10 February 2018 Mr Labuschagne sent a letter of demand to the
respondent dated 08 February 2018. He explains
that good cause exists
for the applicants’ failure to file the notice timeously. The
applicants served the summons on 25
June 2018 on the respondent. In
its plea filed on 29 August 2018 the respondent raised a special plea
of non-compliance with section
3 of the Act.
EXPLANATION
OF THE DELAY
[7]
The reasons for the applicants’ failure to file the notice
timeously can be summarised as follows:
7.1 The
applicants did not have funds to instruct legal representation to
institute action on their behalf;
7.2 They are lay
people and were unaware of the provisions of section 3 of the Act.
This was discovered during consultation with
their legal
representative; and
7.3
They were “severely emotionally and physically traumatised”
by the incident;
[8] It is
important to quote paragraph 9 of the letter of demand from
Labuschagne Attorneys dated 08 February
2018 forwarded to the
Minister on 10 February 2018 by registered mail. It reads:
‘
UNLAWFUL
ARREST AND DETENTION OF SHEREEN SMIT IN HER CAPACITY AS MOTHER and
guardian of her minor daughter identity number: 070920
1594 088
…
9. We place on record
that the Demand was sent in time. We place on record that our clients
have already instructed us should your
office not agree to
condonation that our letter of demand was not within the statutorily
required 6 months period in terms of the
Institution of Legal
Proceedings against Organs of State Act and should your office not
agree to condone same we will request the
court to condone any late
notification.
We submit that our client suffered severe
psychological trauma and that the associated effects inhibited him
from prosecuting the
matter earlier
.’ My underlining
NOTICE TO COMPEL IN TERMS OF
RULE 35(7) OF THE UNIFORM RULES OF COURT
[9] The applicants
also seek an order to compel the Minister to file its discovery
affidavit within five days
of the court order. They also request
costs of the application.
[10] It is common cause that
on 29 November 2018 a notice requesting the Minister to comply with
Rule 35(1), (6), (8) and
(10) of the Uniform Rules of Court affording
the respondents twenty days to discover was served on the attorneys
representing the
Minister. As a follow up to the said notice the
applicants forwarded a letter dated 18 February 2019 requesting
discovery. This
did not yield any results.
[11] On 13 March 2019 the
Minister filed a notice of intention to oppose the application to
compel dated 06 March 2019 and
an answering affidavit. On 05 December
2018 the applicants brought the application for condonation for
failure to serve the notice
in terms of section 3 of the Act.
According to the Minister if the application for condonation fails
that would be the end of the
matter. It would therefore not be
necessary to take further steps in the action. To avoid unnecessary
costs the Minister was of
the view that it was prudent to deal with
the application for condonation first before taking any further
steps.
[12] The Minister disputes
that Mr Gerhard Geyer Labuschagne has been authorised to respond to
the affidavit on behalf of
the applicants. However, no reason has
been advanced for this assertion. The Minister disputes further that
he received the letter
dated 18 February 2019 requiring compliance or
raising an issue with non-compliance with discovery. He submits that
should the
Court find that he failed to comply with the request it
should find that it was unintentional.
[13] The Minister denies that
the applicants are entitled to the relief sought. He denies further
that Mr Smit was arrested
on 17 February 2017 by the members of the
SAPS and that the arrest was wrongful and malicious. He alleges that
he was arrested
in accordance with the provisions of section 40 of
the CPA. He contends that Mr Smit was informed of the reasons for his
arrest
and his constitutional rights were duly explained to him. He
was released on bail on 18 January 2017 after his first appearance
in
court.
[14] The Minister disputes
that the arrest took place in the presence of the applicants’
minor daughter. During the
first applicant’s arrest the members
of the SAPS exercised their discretion in good faith and rationally
in accordance with
the provisions of the CPA, the argument continues.
[15] The Minister argues that
Mr Smit was arrested in order to bring him before court, which was
done. He was not arrested
in order to infringe upon his
constitutional rights, hence in his warning statement he indicated
that he wished to be legally represented.
According to the Minister
he was indeed legally represented during his first appearance in
court. However, the matter was struck
off the roll to give the State
an opportunity to complete investigations.
[16] The Minister argues that
Mr Smit could not rely on lack of financial resources for the failure
to consult with a legal
representative in order to forward the notice
in terms of section 3 of the Act. The respondent submits that Mr Smit
has no prospects
of success in the main action. He urges the Court to
dismiss the application as the applicants have failed to explain the
delay.
[17] According to the Minister
it struggles to get hold of some of the witnesses especially those
that were no longer in its
employ. It alleges that others have been
transferred, promoted or resigned. This has caused a delay in serving
them with the processes
with the result that the Minister has been
unable to fully investigate the matter as some of the information
could have been lost.
[18] The Minister states that
when he looks at the founding affidavit with all the documents
attached to it, it is not easy
to know what transpired from the date
of arrest until date the notice was served. He contends that the
applicants have failed to
set out steps taken until the notice was
served to ensure compliance. He argues that the applicants simply
state that they were
traumatised. Their failure to serve the notice
was intentional, the respondent maintains. It requests that the
matter be dismissed
with costs.
[19] The issue to be
determined is whether the applicants make out a case for the relief
sought in respect of both applications.
The applicants persist that
as lay people they were unaware of the provisions of the Act and also
did not have funds to engage
services of a legal representative to
institute action. The Minister on the other hand disputes that and
adds that the applicants
did not only fail to serve the notice in
terms of section 3 within six months but also failed to give full
reasons for their non-compliance.
The letter dated 18 February 2018
contains no detail as to the actual reasons for the delay.
[20] Section 3 (1), (2), (3) &
(4) of the Act provides:
‘
(1)
No legal proceedings for the recovery of a debt may be instituted
against an organ of state unless-
(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 consented in writing to the
institution of that legal proceedings –
(i)
without
such notice; or
(ii)
upon
receipt of notice which does not comply with all the requirements set
out in subsection (2).
(2) A
notice must-
(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 (1); 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 purpose 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 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
(c)
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 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)
he
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.
(c)
if
an application is granted in terms of paragraph (b), the court may
grant leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate.’
PRECRIPTION
:
[21] Mr Smit was arrested and
detained on 17 January 2017 and summons was served on 25 June 2018.
Prescription is therefore
not applicable. This is undisputed.
[22]
Plasket J referred to what Heher AJ said in
MAGUGA
VS MINISTER OF POLICE
[4]
as
follows:
‘
Unlike
the position in other legislation, and I would add, in the approach
to condonation in the context of non-compliance with
the rules of
court and the like, a clear distinction is drawn in s 3(4) of the
Legal Proceedings Act between good cause, on the
one hand, and
absence of prejudice, on the other. The purpose of the distinction,
Heher JA held, is to ‘
emphasise
the need to give due weight to both the individual’s right of
access to justice and the protection of state interest
in receiving
timeous and adequate note’…preferable 2008 4 South
Africa 312(SAC) at paragraphs 7, 10, 12,13 paragraphs
29...
’
When a judge decides to grant or refuse condonation, he or she
exercises a discretion based on a balancing of relevant factors.
In
the case of what has been described as a narrow discretion, an appeal
court may only interfere in the event of a misdirection
on the part
of the court of first instance. In the case of the discretion to
grant or refuse condonation in terms of s 3(4) of
the Legal
Proceedings Act, the position is different. In Premier, Western Cape
v Lakay
[5]
Cloete JA held that
íf condonation is refused by a court, an appellate court is in
my view at liberty to decide the same
question according to its own
view as to whether the statutory requirements have been fulfilled,
and to substitute its decision
for the decision of the court of first
instance simply because it considers its decision preferable.’
GOOD
CAUSE AND PROSPECTS OF SUCCESS
[23] In
MADINDA
VS MINISTER OF POLICE AND SECURITY
[6]
Heher JA set out the approach to condonation in terms of the Legal
Proceedings Act and had this to say:
'[10]
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, the 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
therefor.
[12]
'Good cause' usually comprehends the prospects of success on the
merits of a case, for obvious reasons:
Chetty
v Law Society, Transvaal
1985
(2) SA 756 (A)
at
765D - E. But, as counsel for the respondent stressed, whether that
is the case must depend on the terms of the statute in which
it is
found. In s 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
causally tied to the reasons for the delay; the effect
is that the
merits 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 the 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, any 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 s 4
(b)
,
viz
the
subject's right to have the merits of his case tried by a court of
law and the right of an organ of state not to be unduly
prejudiced by delay beyond the statutorily prescribed limit for the
giving of notice. Subparagraph (iii) calls for the court to
be
satisfied as to the latter. Logically, 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 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 could hardly
favour the interests of justice. Moreover,
what can be achieved by
putting the court to the task of exercising a discretion to condone
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 pursuing his or her interest,
while one
with little hope of success can easily be understood to
drag his or her heels. As I interpret the requirement of good cause
for
the delay, the prospects of success are a relevant
consideration.’
[24] The Minister vehemently
disputes that the applicants have prospects of success in the main
action. He disputes that Mr
Smit was arrested on 17 January 2017
despite the warning statement taken from him and attached to the
answering affidavit dated
17 January 2017. During argument Mr HC Du
Plessis, on behalf of the respondent, conceded that Mr Smit was
arrested on 17 January
2017. This is so even though in paragraph 10
of its answering affidavit it states:
’
10.
I deny that the first applicant was arrested on the 17
th
of January 2017 I humbly submit that the first applicant was arrested
in accordance with the provisions of the
Criminal Procedure Act 51 of
1977
.’
[25] The members of the SAPS
have failed to attach a copy of Mr Smit’s notice of
constitutional rights (SAP 14 A) informing
Mr Smit that his
constitutional rights were explained as he was arrested. Mr Smit
argues that failure to attach SAP14 A is indicative
of the fact that
the arrest was unlawful. According to him it also corroborates his
case that he was not informed of the reasons
why he was arrested. He
says it would not be far-fetched for one to think that he was
arrested a day or two before the 17
th
January 2017 and
that the respondent intends to capitalise on his possible oversight
of a wrong date in the particulars of claim.
This is supported by the
respondent’s failure to specify the date of the arrest in the
plea. In this record the respondent
does not take the court into its
confidence, the argument goes.
[26] According to Annexure
“MVZ1” attached to the respondents’ answering
affidavit Mr Smit was charged with
the offence of ‘Wet 40/2000
Wet op Veiligheid van Vleis Artikel F (1), 2(b) and Wet 72/1962
Dierebeskermings Wet Artikel
2(1) (a) (f).
[27] Notably, these offences
and penalty clauses do not fall within the scope of Schedule 1
offences as provided for in the
Criminal Procedure Act. This is,
inter alia
, indicative of the fact that the applicants have
prospects of success in the main action.
[28] On 13 July 2017 the
matter was struck off the roll pending further investigations.
Strangely, for almost two years the
investigations have not been
completed as a result the matter has not yet been reinstated.
REASONS
FOR THE DELAY
[29] In paragraph 19.6 of the
answering affidavit the respondent states:
‘
19.6
I submit that the 1
st
applicant was at all material times legally represented and the
allegation that the applicants are lay persons should not be regarded
in cases where they are exposed to legal representation and expected
to have sought advice which they did not ‘
[30] On 18 January 2017 the
first applicant appeared in court for the first time. The Magistrate
explained to him his rights
to legal representation. The first
applicant explained that Mr Reity was his attorney but was
unavailable. On 13 July 2017 the
Magistrate noted on “MVZ2”
that Mr Reity made excuse for (not legible absence) page two of the
same document has the
following hand written notes by the Magistrate
MT Davids:
‘
Attorney
of accused 1 absent-Not placed into funds.’
…
Dpp can’t make
decision-
14 queries noted-
Iro investigations
Statements ito…(not
legible)
State requests matter
to be PP
SOR
State
to finalise investigation
(State
struggle to finalise investigation)’
[31] It is evident that the
first applicants’ attorney was not at court on 17 January 2017
due to the fact that he had
not been placed in funds by the first
applicant. This flies in the face of the respondent who says that the
first applicant was
at all times legally represented.
[32] The fact that the first
applicant experienced financial constraints is confirmed in Annexure
“MVZ1” attached
to the respondents answering affidavit
where it is shown that the first applicant was unemployed (werkloos).
The Minister’s
estimation of a consultation fee in a medium law
firm to be less than R1000-00 has no basis. He cannot be in a
position to tell
how long it would take the applicants to raise funds
especially taking into account that Mr Smit was unemployed at the
time.
[33] It is unreasonable for
the respondent to have expected the first applicant who had to
struggle funding his legal representative
for his criminal case due
to unavailability to afford legal representation to immediately have
been able to prosecute his civil
claim when he was unemployed in
their own version. However, it would also be unreasonable to expect
the first applicant to be knowledgeable
concerning the requirements
of the notice in terms of section 3 of the Act with a prescribed
period of six months.
[34] Taking the above into
consideration it means that the applicants were entitled to wait for
the Ministers plea in order
to make an informed decision as to
whether to apply for condonation- Lewis JA in
MINISTER OF SAFETY
AND SECURITY VS DE WITT
held:
‘
If
an organ of state relies on a creditor’s failure to serve a
notice –that the objective of the organ of state is a
jurisdictional fact for an application for condonation, absent which
the application would not be competent.’
PREJUDICE
[35] Heher JA in Madinda added
at paragraph 29:
‘
[29]
One is now in a position to assess the combined weight to be
attributed to the three elements of s 3(4)
(b)
(i),
(ii) and (iii) which were established, in the context of the
discretion to grant or refuse condonation. Given the absence
of
unreasonable prejudice to the SAPS from the equation and the
persuasive, though not flawless, reliance on good cause, no court
exercising a discretion unaffected by the misdirections which tainted
the assessment of the trial judge, would have deprived the
appellant
of the opportunity to have her claim tested according to the dictates
of law and justice. Condonation should therefore
have been granted.
It follows that the appeal must succeed.’
[36] In paragraph 20.3 of its
answering affidavit the respondent states:
‘
20.3
I submit that the respondent is struggling to get hold of some of the
witnesses who have since left the respondent’s
employment.
There is always transfers, promotions and resignations which results
in officials changing offices or leaving the employment
and delaying
in serving the respondent with a notice always have a negative impact
on the respondent. This is so because the respondent
then struggle to
fully investigate the matter as some of the information would have
been lost or some of the witnesses would have
moved which proves
difficult to locate.’
[37] Importantly, this
paragraph does not take this court into its confidence as there is no
detail. It is a general statement
which makes it very difficult to
verify its accuracy. It is not clear who of the witnesses were
untraceable, transferred, promoted,
resigned and those who left the
employ of the respondent. The respondent indicates that the
delay in service of the notice
had a negative impact on the
respondent as it has struggled to fully investigate the matter
because some of the information would
have been lost or some of the
witnesses would have moved making it difficult to locate them. The
respondent makes it difficult
to make a comment between the late
filing of the notice and the prejudice that it alleges to have
suffered.
[38] Strangely, the respondent
has already filed its plea in which it alleges that the arrest and
detention of the first applicant
was lawful. The question to ask is
where he got the information from if the witnesses would not be
located making it difficult
to finalise the investigations. Clearly,
the docket contents and witnesses assisted the respondent to draft
the plea as well as
the answering affidavit. This also includes the
respondent’s response to the application to compel.
[39] In my view, the
applicants have managed to make out a case for the relief sought and
condonation has to be granted.
APPLICATION
TO COMPEL
[40] The respondent does not
dispute that discovery was not complied with. However, he alleges
that it did not fail to comply
with the applicants Notice as it
thought it was prudent to deal first with the application for
condonation for non-compliance of
the notice in terms of section 3 of
the Act before taking any further steps to avoid unnecessary legal
costs. It states further
that the interlocutory application has not
been finalised and if it does not succeed it would not be necessary
to discover because
it may result in the matter being finalised and
disposed of. The respondent requests that the application be
dismissed with costs.
[41] The explanation by the
respondent for not complying with the notice in terms of Rule 35
cannot stand because if he thought
that the interlocutory application
had to be dealt with first as an interlocutory application, nothing
prevented him from communicating
this with the applicants’
attorney of record. Both applications must fail with costs.
In
the circumstances I grant the following order:
1.
The
failure of the applicants/plaintiffs, Mr Heinrich Smit and Ms Shereen
Smit, to comply with
section 3
of the
Institution of Legal
Proceedings Against Certain Organs of State Act, 40 of 2002
, is
condoned.
2.
The
respondent, the Minister of Police, is compelled to file his
discovery affidavit within ten days of this order.
3.
The
defendant is ordered to pay costs of this application on a scale as
between party and party.
BM PAKATI
JUDGE-NORTHERN CAPE
DIVISION, KIMBERLEY
On
Behalf of the 1
st
and 2
nd
Applicant:
ADV HC Du Plessis
Instructed
by:
VENTER
RUST INC.
On
Behalf of the Respondent: Mr
FD Ramavhale
Instructed
by:
STATE ATTORNEY
[1]
40 of 2002
[2]
Act 51 of 1977
[3]
Act
108 of 1996
[4]
(CA342/2017) [2018] ZAECGHC 78 (04 September 2018)
[5]
2012 (2) SA 1
(SCA) para 14
[6]
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at paras [10], AND [12]