About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2019
>>
[2019] ZAECBHC 5
|
|
Nqinileyo v Minister of Police (360/2017) [2019] ZAECBHC 5 (18 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
NOT REPORTABLE
Case No: 360/2017
In
the matter between:
BANTU
NQINILEYO
Applicant
and
MINISTER
OF POLICE
Respondent
JUDGMENT
MFENYANA AJ:
Introduction
[1]
This is an application brought in terms of section 3(4) of the
Institution of Legal Proceedings
Against Certain Organs of State Act
40 of 2002 (the Act). The applicant seeks condonation for the late
service of the notice envisaged
in section 3(1) of the Act. The
application is on occasion of action instituted by the applicant
against the Minister of Police.
The respondent has opposed the
application. In his opposition, the respondent contends that the
applicant has not established good
cause for his failure to comply
with the requirements of the Act. The respondent further contends
that the applicant has failed
to make out a case that he enjoys
reasonable prospects of success in respect of his claim against the
respondent.
[2]
It is not in dispute that the applicant was arrested and detained by
employees of the respondent. It
is also common cause that the
applicant has instituted proceedings against the respondent for
damages in respect of his unlawful
arrest and detention. It is
further common cause that the plaintiff’s claim has not
prescribed. A further concession
was made on behalf of the
respondent, that the respondent has not suffered any prejudice as a
result of the late service and filing
of the notice. In the main, the
issue now turns on whether good cause exists for the applicant’s
non- compliance.
The facts
[3]
On 1 May 2016, the applicant was arrested and detained by employees
of the respondent on a charge
of rape. On 4 May 2016, he appeared in
court, when the case was postponed to 25 May 2016 for a formal bail
application. Upon appearing
in court on 25 May 2016, the charges
against him were withdrawn. On 16 September 2016, he approached his
attorneys of record and
instructed them to institute legal
proceedings against the respondent for damages resulting from his
arrest and detention. It was
during this consultation that his
attorneys advised him that a statutory notice needed to be dispatched
to the respondent within
six months from the date the cause of action
arose. In the circumstances, the stipulated six months would expire
on 25 November
2016. He instructed his attorneys to issue the
requisite notice but they advised him that they needed to obtain the
contents of
the docket before they could issue such notice. This, he
was advised, was necessary for his attorneys to ascertain whether he
had
a valid cause of action or not. It was not until June 2017 that
his attorneys advised him that they had obtained the contents of
the
docket and after ‘thoroughly’ considering its contents,
they were in a position to issue the notice. The notice
was
dispatched to the respondent on 8 June 2017, followed by a summons on
22 June 2017.
[4]
On 16 October 2017 the respondent served its plea wherein he raised a
special plea of non- compliance
with the provisions of the Act. It is
on the basis of this special plea that the applicant brought the
present application on 12
February 2018.
The test for
condonation
[5]
As correctly pointed out by counsel for both the applicant and the
respondent, the correct approach
in considering an application for
condonation is set out in
Madinda
v Minister of Safety and Security
[1]
.
It is trite that what section 3(4) requires, is not proof on a
balance of probabilities, but an
‘
overall
impression made on a court which brings a fair mind to the facts set
up by the parties’
[2]
. It
involves
an examination of ‘all those factors which bear on the fairness
of granting the relief as between the parties and
as affecting the
proper administration of justice’, and may include ‘prospects
of success, 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’.
[3]
[6]
The question which faces this court is whether in the circumstances
of the present case, it can
be said that good cause exists for the
applicant’s failure to timeously issue the notice as envisaged
in section 3(1).
[7]
It was argued on behalf of the applicant that it was necessary for
the applicant’s attorneys
to ascertain the facts which
triggered the applicant’s arrest, and this could only be done
by accessing the docket and thus
the applicant’s attorneys duly
issued the notice upon receipt of the docket.
[8]
This was met with opposition from the respondent’s counsel, who
argued that the applicant
has not shown that there is any justifiable
cause for the delay and as such, the delay remains unaccounted for.
Ms Mqobi, counsel
for the respondent, argued that good cause is
linked to the applicant’s prospects of success, and argued
further that the
applicant has no prospects of success in this
matter. She referred the court to the decision of
Chetty
v Law Society, Transvaal
[4]
where the Appellate Division as it then was, stated that ‘there
is a specific link created between the delay and the good
cause’.
This is so. However the enquiry goes further than that. In her heads
of argument, counsel cited what I consider to
be a pertinent part of
the Chetty judgment in relation to the present case, that
‘
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
.’
[5]
It
is noteworthy that the respondent has already conceded that the state
has not been prejudiced by the delay. This leaves just
one aspect in
respect of the two competing interests at play, namely, the
applicant’s right to have his case tried by a court
of law
vis
a vis
the right of the state organ not to be prejudiced by the delay. The
remaining issue (applicant’s right to have his case tried
largely rests on whether the applicant has any prospects of success.
Good cause
[9]
While consideration of the prospects of success forms an important
part as to whether good cause
exists, it is not the only
consideration. The issue of good cause is intricately linked to a
litigant’s prospects of success
and would invariably call for
an examination of the specific features of each matter. The
circumstances of the case must be looked
at in totality. It is
evident from the argument presented on behalf of the respondent that
the respondent rested its opposition
solely on the applicant’s
prospects of success. This is unfortunate. A piecemeal approach to
the issue of good cause is neither
appropriate nor desirable. Mr
Hansjee, counsel for the applicant, argued that arrest without a
warrant is a violation of the rights
of the applicant and is prima
facie unlawful. He further argued that as it is common cause that the
applicant was arrested by employees
of the respondent, the onus to
prove the lawfulness of the arrest shifts to the respondent. It is
therefore not competent for the
respondent to contend that the
applicant has no prospects of success when in fact it is the
respondent who bears the onus to prove
the lawfulness of the arrest,
having conceded the arrest and detention.
[10] It
must be considered that it is not required of the applicant to set
out in elaborate detail, the fullness
of its case on the merits, but
sufficient detail to enable the court to assess, of its own accord,
the prospects of success. It
appears to me that there exists a case
to be answered by the respondent in the circumstances. I do not
intend to go into the merits
of the matter save to point out that the
facts which form the basis of the applicant’s arrest are common
cause. In this regard,
I need not go into, or pre-empt the evidence
that will probably be presented before the trial court. That is not
the purpose of
the present application. Rather, the consideration is
to establish whether good cause exists for the delay to enable this
court
to arrive at a conclusion whether or not to grant condonation.
[11]
Whilst I am not satisfied with the reasons advanced by the applicant
that the delay was occasioned by the
need for his attorneys to obtain
the docket,
I am however
persuaded that
when regard is had to all the aspects relevant to good cause, the
interests of justice dictate otherwise. I do not
make much of the
respondent’s contention, which was in any event, not set out in
any compelling detail, that the application
was not made in good
faith. This point was not taken further as there is no evidence to
that effect whether on the papers or otherwise.
[12]
It was further submitted by counsel for the respondent, albeit from
the bar, that the cause for the delay
is the negligence of the
applicant’s attorney and that even if the interests of justice
are to be considered, there is a
limit in the extent to which the
applicant can rely on his attorney’s inaction. I was referred
in this regard to a judgment
of the Labour Court in
Khan
v Cadbury South Africa (Pty) Ltd
[6]
,
where an application for condonation was dismissed on the basis of
gross negligence on the part of the applicant’s attorneys.
I am
however not persuaded that that submission has any merit more so that
it was not pleaded and simply came from the bar. I further
considered
that the facts of the matter in the Cadbury case are vastly
discernible from the present case, even on the principle
sought to be
argued by the respondent. Of particular distinction, is the
infraction sought to be averted in the present case in
contrast to
the Cadbury case.
[13]
In
Maguga
v Minister of Police
[7]
where the plaintiff had relied on the advice of his attorneys for his
failure to serve a notice timeously, Plasket J had this to
say:
‘
It
is clear too that from an early stage (the plaintiff) was intent on
pursuing a civil remedy against his assailants. As a lay
person, he
was reliant on the advice of the attorney who(m) he consulted.
Through no fault on his part he was misinformed and given
erroneous
legal advice that prevented a notice from being given timeously.’
[8]
The applicant approached his attorney on time. He was advised that
his attorney needed to request the docket. When the docket was
received, the stipulated six month period had already expired.
Interests of justice
[14]
The interests of justice require the court to consider the facts of
each matter holistically. As pointed
out, correctly in my view, by
counsel for the respondent, obtaining the docket is not a requirement
for the issuing of the notice.
It may be that the applicant’s
attorney was overcautious in not issuing the notice without first
satisfying himself of the
sustainability of his client’s cause
of action. I have misgivings about whether this on its own warrants a
complete bar against
the applicant to access the courts, detached
from other considerations, including the applicant’s prospects
of success. I
therefore do not agree with counsel for the respondent
that the applicant has failed to demonstrate that it enjoys some
prospect
of success in the main action.
[15]
‘
W
hen
a judge decides to grant or refuse condonation, he or she exercises a
discretion based on a balancing of relevant factors’
.
[9]
This
presupposes that due consideration must be given to all the relevant
facts of the case. It is not in dispute that the applicant
approached
his attorneys on time and upon being advised of the process,
immediately gave instructions to them to carry out the
instructions
as advised.
[16]
The Supreme Court Appeal expressed in
The
Minister of Safety and Security v De Witt
[10]
that
‘
(t)he
way in which the legislature has sought to avoid drawing a hard and
fast rule that may cause undue hardship to a plaintiff
is to make
provision for time limits, and notices of intention to sue, but to
enable a court to condone a failure to comply with
the requirements…
subject to … (the specified requirements)…’.
[17] I
must point out that while compliance with the requirements of the Act
should not be taken lightly, the
purpose of section 3 is not to
create a complete bar to the institution of proceedings. I have in
the circumstances, found that
the applicant has shown good cause for
the delay in serving the notice. No prejudice has been contended on
the part of the respondent
and the applicant’s claim has not
prescribed.
Costs
[18] In
relation to the issue of costs, it is my view that the applicant is
not entirely blameless in the circumstances
and that a departure from
the well-established rule that the costs should follow the result, is
warranted.
[19] In
the result I make the following order:
(a)
The
application is granted.
(b) The
late service of the notice in terms of
section 3(1)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
is
condoned.
(b)
Each party to pay its own costs.
SM MFENYANA
ACTING JUDGE OF THE
HIGH COURT
Appearances
For
the Applicant:
Mr
Hansjee
Instructed
by:
Sipunzi
Attorneys, East London
For
the Respondent:
Mr
Mqobi
Instructed
by:
The
State Attorney, King Williamstown
Date heard:
14 March 2019
Date
handed down: 18 March 2019
[1]
2008
(4) SA 312 (SCA)
[2]
at
para 8
[3]
at
para 1
[4]
1985(2)SA756
(A)
[5]
Chetty
v Law Society, Transvaal
[6]
(c965/2008)
[2010] ZALC 175
(17 November 2010)
[7]
CA 342/2017 ZAECGHC 2018
[8]
At para 31
[9]
Maguga v Minister of Police, at para 4
[10]
(722/2007)
103 [2008]ZASCA (19 September 2008)