Madinda v Minister of Safety and Security, Republic of South Africa (153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) (28 March 2008)

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[2008] ZASCA 34
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Madinda v Minister of Safety and Security, Republic of South Africa (153/07) [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) (28 March 2008)

T
HE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
Case no: 153/07
In
the matter between
THEMBELA
MADINDA ... APPELLANT
and
MINISTER
OF SAFETY AND SECURITY OF THE REPUBLIC OF SOUTH AFRICA ... RESPONDENT
Coram:
NAVSA,
MTHIYANE AND HEHER JJA
Heard:
18
MARCH 2008
Delivered: 28
MARCH 2008
Summary:
Prescription – limitation of actions – Institution of Legal
Proceedings against certain Organs of State Act 40 of 2002
ss 3(1)
and (2) – legal proceedings against SAPS – failure to give notice
of intention to institute such proceedings within 6
months of date
when debt became due – application for condonation under s 4 –
‘good cause’ and ‘absence of unreasonable
prejudice’ –
additional delays unrelated to failure to give timeous notice.
Neutral
citation: This judgment may be referred to as Madinda v Minister of
Safety and Security (153/2007)
[2008] ZASCA 34
(28 March 2008).
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
HEHER JA
HEHER JA:
[1]
The appellant is an unemployed woman, aged 32 years, who resides in
Grahamstown. In July 2006 she applied to the High Court for
an order
in terms of s 3(4) of the Institution of Legal Proceedings against
certain Organs of State Act 40 of 2002. She sought condonation
of her
failure to serve a notice of intention to bring legal proceedings
against the respondent Minister within the period specified
in s
3(2)(a) of the Act. The Minister opposed the application.
[2]
The legislation is relatively recent and has not been the subject of
much judicial consideration. Section 3 may conveniently be
quoted in
full:
‘
(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 proceeding[s]─
(i)
without such notice; or
(ii)
upon receipt of a 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 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 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
(b)
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)
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.
(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.’
[3]
On 26 October 2006 Van der Byl AJ refused the application with costs.
He found that the appellant had not shown good cause for
not giving
notice timeously. Nor, it appears, was the learned judge persuaded
that SAPS was not unreasonably prejudiced by the failure.
A
substantial part of the delay could only be explained by what he
described as ‘complete disinterest in the conduct of her case’
and her consequent failure to maintain contact with her attorney from
May 2005 until 7 July 2006.
[4]
The learned judge refused an application for leave to appeal. This
Court, however, granted the appellant such leave.
[5]
The appellant’s intended cause of action was a claim for damages
arising from unlawful arrest, detention and assault allegedly
perpetrated on her by unidentified members of the SAPS during the
night of Saturday, 11 September 2004. The period of six months
afforded a plaintiff by s 3(2)(a) of the Act would, in the absence of
factors relevant by reason of s 3(3)(a), probably have ended
at
midnight on 11 March 2005. The statutory notice was sent from
Grahamstown to the National Commissioner in Pretoria by registered
post on 19 August 2005. Receipt was acknowledged (and rejected as not
complying with the requirements of s 3(2)(a) of the Act) in
a letter
dated 31 October 2005. Section 4(1) of the Act requires such a notice
to be served on the organ by delivering it by hand
or by sending it
by certified mail or (subject to s 4(2)) by sending it by electronic
mail or transmitting it by facsimile. Section
7 of the Interpretation
Act 33 of 1957 provides that
‘
Where
any law authorises or requires any document to be served by post,
whether the expression “serve”, or “give”, or “send”,
or
any other expression is used, then unless the contrary intention
appears, the service shall be deemed to be effected by properly
addressing, preparing, and posting a registered letter containing the
document, and, unless the contrary is proved, to have been
effected
at the time at which the letter would be delivered in the ordinary
course of post.’
I
shall assume for present purposes, there being no evidence to the
contrary, that there is no material difference between registered
and
certified post. If one allows one week for delivery of post sent from
Grahamstown to Pretoria, ie by 26 August 2005, the notice
was about
5½ months outside the prescribed time.
[6]
Section 3(4)(b) circumscribes a court’s power to grant condonation
by requiring that it be satisfied that
i)
the debt has not been extinguished by prescription;
ii)
good cause exists for the failure by the creditor, ie to serve the
statutory notice according to s 3(2)(a) or to serve a notice
that
complies with the prescriptions of s 3(2)(b); and
iii)
the organ of state was not unreasonably prejudiced by the failure.
[7]
The Act is an omnibus statute which as the preamble states is
intended ‘to regulate the prescription and harmonise the periods
of
prescription of debts for which certain organs of state are liable;
to make provision for notice requirements in connection with
the
institution of legal proceedings against certain organs of state in
respect of the recovery of debt’. Thus, it brings together
and
rationalises under one statutory umbrella provisions which were
previously scattered through many statutes. (These are identified
in
the schedule of laws amended and repealed.) The relevant repealed
provision in this case was s 57 of the South African Police
Services
Act, 68 of 1995. That, in turn, was the successor to other provisions
limiting actions against the SAPS which have, from
time to time,
received consideration by the courts. Such provisions have been held
to be in favour of the police who should accordingly,
in so far as
the language permits, receive the protection offered by the section
without imposing an unnecessarily heavy burden on
a plaintiff:
Minister
van Wet en Orde v Hendricks
[1987] ZASCA 55
;
1987
(3) SA 657
(A) at 662E-663G. See also
Hartman
v Minister van Polisie
1983
(2) SA 489
(A) at 497H-498C;
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC) at para 9. Previously, s 57(5) of the 1995 Act
permitted a court to dispense with an equivalent notice of intention
to commence
proceedings ‘where the interests of justice so
require’, as to which see
Mugwena
v Minister of Safety and Security
2006
(4) SA 150
(SCA) at 155B-C. Before 1995 there was no power of
condonation, a situation deemed to be unconstitutional in relation to
analogous
limitation provisions under the Defence Act 44 of 1957 in
Mohlomi’s
case.
[8]
The phrase ‘if [the court] is satisfied’ in s 3(4)(b) has long
been recognised as setting a standard which is not proof on
a balance
of probability. Rather it is the overall impression made on a court
which brings a fair mind to the facts set up by the
parties. See eg
Die
Afrikaanse Pers Beperk v Neser
1948
(2) SA 295
(C) at 297. I see no reason to place a stricter
construction on it in the present context.
[9]
The first requirement speaks for itself: the court must be satisfied
that the applicant relies on an extant cause of action. That
this is
so in the present instance has never been in dispute.
[10]
The second requirement is a variant of one well known in cases of
procedural non-compliance. See
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996
(1) SA 215
(W) at 227I-228F and the cases there cited. ‘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.
[11]
In
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) Schreiner JA said (at 352H-353A):
‘
The
meaning of “good cause” in the present sub-rule, like that of the
practically synonymous expression “sufficient cause”
which was
considered by this Court in
Cairn’s
Executors v Gaarn
,
1912 A.D. 181
, should not lightly be made the subject of further
definition. For to do so may inconveniently interfere with the
application of
the provision to cases not at present in
contemplation. There are many decisions in which the same or similar
expressions have been
applied in the granting or refusal of different
kinds of procedural relief. It is enough for present purposes to say
that the defendant
must at least furnish an explanation of his
default sufficiently full to enable the Court to understand how it
really came about,
and to assess his conduct and motives.’
Although
this passage relates to a different legislative context (viz Rule
46(5) of the Magistrates’ Courts rules) I am of the view
that it
holds good for the interpretation of s 3(4)(b)(ii).
[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. The
learned judge
a
quo
misdirected
himself in ignoring them.
[13]
The relevant circumstances must be assessed in a balanced fashion.
The fact that the applicant is strong in certain respects
and weak in
others will be borne in mind in the evaluation of whether the
standard of good cause has been achieved.
[14]
One other factor in connection with ‘good cause’ in s 3(4)(b)(ii)
is this: it is linked to the failure to act timeously.
Therefore
subsequent delay by the applicant, for example in bringing his
application for condonation, will ordinarily not fall within
its
terms. Whether a proper explanation is furnished for delays that did
not contribute to the failure is part of the exercise of
the
discretion to condone in terms of s 3(4), but it is not, in this
statutory context, an element of ‘good cause’. This is a
distinction which the learned judge did not draw or maintain and I
think he was wrong not to do so.
[15]
Absence of prejudice has often been regarded as an element of good
cause in the context of earlier legislation. It was, no doubt,
also
an element in determining where the interests of justice lay in the
terms of s 57 of Act 68 of 1995. But in this Act the legislature
has
deemed it appropriate to treat absence of
unreasonable
prejudice
as a specific factor of which an applicant must satisfy the court.
The identification of separate requirements of good cause
and absence
of unreasonable prejudice may be intended 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 notice.
[16]
The structure of s 3(4) is now such that the court must be satisfied
that all three requirements have been met. Once it is so
satisfied
the discretion to condone operates according to the established
principles in such matters, as to which see eg
United
Plant Hire (Pty) Ltd v Hills
1976
(1) SA 717
(A) at 720E-G.
[17]
Approaching the matter according to the structure as I have explained
it the present case resolves itself without difficulty
according to
its own facts.
[18]
As to good cause─
18.1
the appellant set up a
prima
facie
case
of assault, unlawful arrest and unlawful detention (which perhaps
overlaps with kidnapping) against the policemen involved. Although
the strength of the case is not decisive, an examination of all the
statements from the docket taken at face value leaves serious
questions unexplained about how and when the appellant could have
sustained her injuries other than during the time which she spent
in
the police vehicle alone with sgt Kebe and const Gabriel. On this
basis I would evaluate the
prima
facie
case
against
the policemen concerned as strong. Her fundamental right is to have
her oral evidence and that of her supporting witnesses
evaluated in a
fair trial against any admissible opposing testimony that the defence
can produce.
18.2
A factor which is to be considered is that she used the first
available opportunity to assert her determination to see justice
done
when, on her return home on the night of 11 September 2004 and
despite her parlous physical condition, she wrote on a piece
of paper
that the police had assaulted her, enabling her sister to lay a
complaint on her behalf.
18.3
The matter was obviously of importance to her. During the morning of
12 September two police officers arrived with her sister.
After her
admission to hospital a police photographer took photographs of her
injured face. She stated on oath that she believed
the steps taken on
her behalf and by the police would lead to the State investigating
and following up her complaint and claiming
damages for her. The
learned judge
a
quo
was
dismissive of such a belief:
‘
[I]t
is in my view unimaginable that any member of the public, no matter
his or her illiteracy or social handicap (of which, incidentally,
no
information is offered in her founding affidavit), can ever be under
the impression that the police would claim damages on her
behalf’.
I
do not share that view. Ignorance, inexperience, naivete, and simple
lack of intelligence, individually or in any combination, could
it
seems to me, conduce to a reasonable belief that, once a complaint
has been laid, the State, with the resources at its disposal,
and as
what she described in her reply as ‘the primary agent for the
protection and enforcement of . . . legal rights’, will
follow it
up; cf
Mugwena
’
s
case, above, at 155H-156E. Indeed there is a provision in the
Criminal Procedure Act (s 300(1)) which enables a court to make a
compensatory order having the effect of a civil judgment, so that her
belief finds some basis in law as well.
18.4
The appellant was unaware of the requirement of notice until she
approached an attorney during May 2005, some two months after
the
statutory period expired. She was first led to seek help because she
saw no apparent progress in the investigation of her claim.
It is
significant that her initial reaction was to visit her local police
station to find out what was happening. There she was advised
that
the police only investigate complaints with a view to criminal
prosecution and that if she wanted to claim damages she should
consult an attorney immediately. She followed that advice. The
overall impression that her affidavit creates is that, despite a long
initial period of physical debility, she at all times harboured a
genuine grievance which she pursued according to a limited
comprehension
of what was necessary in order to enforce her legal
rights. The fact that, from her final discharge from hospital in
December 2004
until early May 2005, she waited in ill-founded
anticipation and inactivity for some progress in the matter, even if
it be a matter
for mild disapprobation, is not sufficient to negate
her genuine intention to pursue her claim.
18.5
All in all it seems to me that prospects of success and her
explanation for the initial delay both tend in favour of the
appellant.
18.6
The learned judge held against the applicant the delay between May
2005 and the sending of the notice in August. The uncontested
events
are as follows:
(a)
During May attorney Dullabh was told of appellant’s desire to claim
damages from the police. She asked him to ascertain what
was going on
with the investigation.
(b)
Dullabh told her that notice of a civil claim had to be given within
6 months and that it might be necessary to apply to court,
but he
needed to obtain a copy of the investigation docket and the
appellant’s medical records in order to assess the merits and
the
amount of the claim.
(c)
In July 2005, when Dullabh received these, he called the appellant to
a consultation. He told her a decision had been taken in
April 2005
not to prosecute the officers involved, but that he assessed the
prospects of success in a civil action against the state
as
reasonable.
(d)
The appellant informed Dullabh that she was still experiencing
difficulties with her jaw and pain in chewing. He told her that,
in
due course, further medical examinations would be necessary.
(e)
The appellant instructed Dullabh to send the statutory notice. As we
know that was only sent on 19 August. There is no explanation
for the
delay of about a month and a half in this regard.
[19]
The summary in the preceding paragraph shows that the appellant
consulted an attorney as soon as could reasonably be expected,
given
her misconception, and, having done so, reacted expeditiously and in
good faith
on
his advice. Mr Dullabh furnished a rational explanation to her for
not immediately sending the notice (that someone else might
have
acted first and sought information afterwards does not render it less
rational), an explanation which she could not have been
expected to
debate with him. Prudence before embarking on a process which may
lead to heavy costs in litigation is to be commended
unless the
consequences of delay are likely to damage one’s client’s
prospects. I do not think Mr Dullabh had reason to think
that he
would be criticised for being careful. The unexplained period (which
must lie in the peculiar knowledge of her attorney)
is not of such a
degree of seriousness as to shipwreck her otherwise sound reliance on
good cause.
[20]
It is also true that, although her attorney received the rejection of
the notice in the middle of October 2005, the appellant
did not
commence proceedings for condonation until July 2006. As I have
earlier pointed out, unexplained delay which relates to the
period
after the notice was
de
facto
given
will
ordinarily relate not to the establishment of good cause but to
condonation. The learned judge erred in his approach in this
regard.
Nor do I think that such delay can fairly be ascribed to disinterest
on the appellant’s part.
[21]
The third leg of s 3(4)(b) required the appellant to satisfy the
court that the respondent had not been unreasonably prejudiced
by the
failure to serve the notice timeously. This must inevitably depend on
the most probable inference to be drawn from the facts
which are to
be regarded as proved in the context of the motion proceedings
launched by an applicant. The approach to the existence
of
unreasonable
prejudice
(not simply any level of prejudice, an aspect which the judgment of
the court
a
quo
blurs)
requires a common sense analysis of the facts, bearing in mind that
whether the grounds of prejudice exist often lies peculiarly
within
the knowledge of the respondent. Although the onus is on an applicant
to bring the application within the terms of the statute,
a court
should be slow to assume prejudice for which the respondent itself
does not lay a basis.
[22]
The approach of the court
a
quo
in
this regard was inconsistent. Early in his judgment the learned judge
noted that ‘it was not seriously contended on behalf of
the
respondent that the SAPS was prejudiced by the applicant’s delay’.
Despite this he concluded that the question of prejudice
was not a
requirement which could be ignored ‘in the circumstances of this
matter’. He relied in this regard on a passage in
CIR
v Pick ‘n Pay Wholesalers (Pty) Ltd
1987(3)
SA 453 (A) at 469F-G:
‘
Human
memory is inherently and notoriously liable to error. One knows that
people are less likely to be complete and accurate in their
accounts
after a long interval than after a short one. It is a matter of
common experience that, during the stage of retention or
storage in
the memory, perceived information may be forgotten or it may be
modified, or added to, or distorted by subsequent information.
One is
aware too that there can occur a process of unconscious
reconstruction.’
But
that passage dealt with the fallibility of human recollection in
giving evidence long after the event. The case before the judge
related to statutory notice of the cause of action. The appellant had
the same rights as any other litigant in relation to when she
issued
summons in the matter: she had to do so before her claim prescribed
and the action once instituted would be subject to the
usual hazards
of litigation including systemic and other delays. Reliance on delay
in bringing an action to trial was thus irrelevant
to the appellant’s
default. Likewise, the learned judge’s reliance on
Hartman’s
case,
above, at 497F-498A was misplaced. Further evidence of such confusion
appears from the following statement in the judgment:
‘
Although
the investigation in this matter seems to have been completed on 19
October 2004 when a so-called “
warning
statement
”
had
been taken from the second of the police officials who was allegedly
involved in the alleged unlawful arrest and assault of the
Applicant,
it does not necessarily mean that the Respondent it is and will not
be prejudiced by any delay to give the prescribed
notice
and
to timeously institute the intended action
.’
[Emphasis added]
[23]
The learned judge continued:
‘
In
this regard one should have regard to the difficulties which are
experienced when witnesses are confronted with the contents of
their
police statements (
S
v Govender and Others
2006
(1) SACR 322
(E)) since, inter alia, police statements are, as a
matter of common experience, frequently not taken with the degree of
care, accuracy
and completeness which is desirable (
S
v Xaba
1983
(3) SA 717
(A) at 730B-C) and the purpose of a police statement is to
obtain details of an offence so that a decision can be made whether
or
not to institute a prosecution, and the statement of a witness is
not intended to be a precursor to that witness’s evidence in
court
(
S
v Bruiners en’n Ander
1998
(2) SACR 432
(SE) at 437h). There is accordingly no assurance that
the fallibility of human memory after the elapse of time will,
especially if
one bears in mind that police officers are in the
course of various policing duties involved in arrests of thousands of
persons,
fade when the finer details of a particular incident that
occurred two or more years earlier are canvassed in in-depth
questioning.’
However,
reference to the inadequacy of police statements hardly seems
appropriate when a court is confronted by an application for
condonation for failure to file the statutory notice within six
months, and the evidence shows that all statements were procured
timeously and were directed to ascertaining whether the complaint was
well-founded.
[24]
In summary, the learned judge misdirected himself both as to the
existence of unreasonable prejudice and as to its relevance
in the
context of the application before him. In argument before us counsel
for the respondent did not contend otherwise.
[25]
Approaching the question anew, unaffected by the misdirections, I am
persuaded that the appellant achieved the standard set in
relation to
s 3(4)(b)(iii). The facts of the matter before the learned judge were
the following:
1.
The assault was reported to the police on the night of the alleged
happening;
2.
On 13 September 2004 one Yamiso, a friend of the complainant who was
in her company until her ‘arrest’, made an affidavit.
3.
A confirming affidavit was taken from a policeman, sgt Ngqele (to
whom Yamiso reported the complaint) on 13 September.
4.
On 13 September the appellant was photographed in the Settlers
Hospital by a police inspector as part of the investigation into
the
complaint and he made a statement concerning his observations on 29
September.
5.
On 15 September a sworn statement was taken from an eyewitness to
certain of the events, Ms Sipokazi Moni, who had also been in
the
company of the complainant until the latter’s ‘arrest’.
6.
There is also the first page of a statement by the appellant which,
although bearing no date, seems to have been written by the
same
person who took Moni’s statement on 15 September.
7.
A warning statement was taken from one of the two ‘suspects’,
const Gabriel, on 19 October in which he set out his participation
in
the events in some detail.
8.
There is the first page (undated) of a statement made by the second
‘suspect’, sgt Kebe, containing a version which purports
to
excludes the possibility of the complainant having suffered the
injuries while in police custody. It would appear from the numbering
on this document (A8) that it was probably made at some time before
the statement of Bergh (A9).
9.
An affidavit was obtained from an alleged independent eyewitness, Mr
Eugene Bergh, on 8 April 2005. (It appears from the docket
that it
was on the strength of this statement that the prosecutor declined to
prosecute.) In it he denies seeing any assault by const
Gabriel or
sgt Kebe up to the complainant’s removal in the police vehicle.
What of course is significant in that regard is the
necessary
inference that the complainant’s serious injuries were most
probably sustained after she was taken away, a matter which,
in
itself, one might have thought, justified a prosecution.
[26]
In regard to the foregoing one may fairly infer that by no later than
8 April 2005 the applicant’s complaint had been fully
investigated
and statements taken from all persons whom the investigating officer
regarded as material. Taking all the circumstances
into account it is
clear that the learned judge should have been satisfied that the SAPS
was not unreasonably prejudiced by the failure
to serve the notice
timeously.
[27]
The question then arises as to whether condonation should have been
granted. We are by reason of the misdirections entitled to
reconsider
this question.
[28]
By October 2005 the Commissioner had taken an unequivocal stand
against recognizing the notice. But it is clear that the applicant’s
attorney did not leave the matter there, since on 12 January 2006 the
State Attorney wrote tersely to him
‘
We
regret to advise that our instructions from client are to consider
the provisions of section 3(2)(a) of Act 40 of 2002.’
Having
regard to the provisions of s 3(1)(b) Mr Dullabh was certainly
justified in asking that the State abandon reliance on s 3(2)(a).
But
when he received that reply it must have been clear that all hope of
concession was past. It was the delay thereafter until July
2006
which he should have explained but did not. Applications for
condonation should in general be brought as soon after the default
as
possible. Thereby possible further prejudice to the other party and
misconception as to the intentions and bona fides of the applicant
can be lessened. A delay in making the application should be fully
explained. The failure to do so may adversely affect condonation
or
it may merely be a reason to censure the applicant or his or her
legal advisers without lessening the force of the application.
I
think that the latter is the correct attitude to take in the present
matter in relation to the evaluation of whether condonation
should be
granted. Under the present statutory dispensation there is no time
limitation on the institution of action and the appellant
had until
September 2007 (when her claim would have prescribed) to issue
summons. The matter was clearly very much alive during the
first half
of 2006 and the State had no reason to think otherwise. Nor has the
respondent suggested that it was prejudiced or misled
by the
additional delay.
[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.
[30]
Moreover, the refusal of the Commissioner and the State Attorney to
accede to the request to forego reliance on s 3(2)(a) of
the Act and
the respondent’s opposition to the application were not only
unwarranted but also unreasonable. The respondent should
therefore
pay the costs occasioned by the application. It was common cause
between the parties that the matter was of sufficient
magnitude to
warrant the attentions of senior and junior counsel.
[31]
The following order is made:
1.
The appeal is upheld with costs including the costs consequent upon
the employment of two counsel.
2.
The order of the court
a
quo
is
set aside and replaced with the following:
‘
(a)
Condonation is granted for the applicant’s failure to serve the
notice contemplated in section 3(1)(a) of the Institution of
Legal
Proceedings against certain Organs of State Act 40 of 2002 within the
period laid down in section 3(2)(a) of the Act.
(b)
The respondent is to pay the costs of the application including the
costs consequent upon the employment of two counsel’.
__________________
J
A HEHER
JUDGE OF
APPEAL
NAVSA
JA )Concur
MTHIYANE
JA )