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[2019] ZAECBHC 18
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Buza and Another v Minister of Safety and Security (1022/06) [2019] ZAECBHC 18 (20 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
REPORTABLE
CASE
NO: 1022/06
In
the matter between:
NTOMBIZANELE
BUZA 1
st
Plaintiff/Applicant
NDAZILE
LIVINGSTONE BUZA 2
nd
Plaintiff/Applicant
and
THE
MINISTER OF SAFETY AND SECURITY
Defendant/Respondent
Summary:
Application for condonation in terms of section 3(4) of Act 40 of
2002 - Whether creditor required to show good cause and
lack of
prejudice in respect of post-notice delay in prosecuting the
application - interpretation of the wording of the section.
JUDGMENT
STRETCH
J.:
[1]
The plaintiffs issued summons out of
this court on 27 September 2006, claiming damages from the defendant
flowing from the death
of Ayanda Buza (“the deceased”),
who died on 12 December 2005 after having been shot by one Constable
Xabendlini at
Mdantsane on 11 November 2005. The plaintiffs allege
that they are the natural parents of the deceased, and that they were
his
dependants when he died. They also claim on behalf of a child who
was born after the deceased died, alleging that the deceased fathered
this child whom the plaintiffs are now supporting. It is averred that
the shooting was wrongful and unlawful, and that the defendant,
who
was Xabendlini’s employer at the time, is vicariously liable
for his conduct
and the sequelae thereto.
[2]
The defendant has raised altogether 12
special pleas to the plaintiffs’ claim. They are:
2.1
prescription
2.2
res iudicata
2.3
non-compliance with Act 40 of 2002
relating to notice
2.4
lack
of jurisdiction
2.5
failure to join the National Director of
Public Prosecutions (this plea has thankfully been abandoned)
2.6
lack of
locus
standi
in respect of the child’s
claim
2.7
denial that the deceased fathered the
child
2.8
non application of the
nasciturus
rule
2.9
non-compliance with Act 40 of 2002
relating to notice in respect of the child’s claim
2.10
improper consolidation of claims
2.11
res iudicata
and lack of jurisdiction in respect of
the child’s claim
2.12
non-joinder of the Minister of Justice
and Constitutional Development.
[3]
Two years ago I issued a detailed case
flow management directive,
inter alia
inviting the parties to traverse the
issues raised
in
these special pleas at
a conference before a judge in chambers. Despite this matter having
been “managed” on a regular
basis, it appears from the
court file that this elephant in the room has largely been ignored.
[4]
In March 2018 the plaintiffs managed to
file a motion for condonation in terms of section 3(4)(a) of The
Institution of Legal Proceedings
against Certain Organs of State Act
no. 40 of 2002 (“the Act”), with respect to the special
plea of failure to give
notice of intended legal proceedings within
the six month period stipulated in section 3(2)(a) of the Act. The
application is opposed,
and was argued before me. The purpose of this
judgment then, is to dispose of the third special plea raised by the
defendant.
[5]
Section 3 of the Act reads as follows:
3.
Notice of intended legal proceedings to be
given to organ of state
(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 (
sic)
legal
proceedings – (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.
[1]
(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 th
e
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.
[6]
It is common cause that a notification
(which neither of the parties is able to locate) dated 26 June 2006
was delivered to the
defendant on 5 July 2006, whereafter the
defendant repudiated the claim in writing. The letter of repudiation,
dated 7 August 2006
and date-stamped 16 August 2006, reads as
follows:
‘
Mzimba,
Jubase & Co Attorneys
PO
Box 1148
EAST
LONDON
5200
Dear
Sir/Madam
YOUR
CLIENT: L BUZA
Receipt
of your letter
MR MVAPANTSI/tb/B81
dated
2006-06-26
received in the office of the Minister on
2006-07-05
is
hereby acknowledged.
On
2006-07-19
the
Legal Official
Capt Groenewald
determined that your
l
etter
is not accepted as a proper notice in terms of the relevant
provisions of the Institution of Legal Proceedings against Certain
Organs of State Act, 2002 (Act no. 40 of 2002), due to the fact that
the notice does not provide sufficient facts and particulars
in
respect of the debt to enable the SA Police Service to conduct a
proper investigation (Ie. the exact date on which the cause
of action
arose is unknown / The
exact place
(suburb/city/town/province where the
incident occurred is unknown). (Section 3(2)(b) of the Act.)
This
matter is therefore regarded as finalized.
Yours
faithfully
Sgd
NATIONAL
COMMISSIONER: SA POLICE SERVICE’
[7]
In
the absence of the document referred to, the
plaintiffs
(and this court for that matter) are constrained to accept that the
notice which their attorney sent to the
defendant
,
failed to adequately furnish the particularity required
in
terms
of the provisions of section 3(2)(b) of the Act. It is significant
however, that the
defendant
did not reject the notice on the basis that it was delivered outside
of the six month period stipulated in section 3(2)(a) of the
Act.
[2]
[8]
After summons was issued, reflecting
both the dates when the deceased was shot and when he died, the
defendant pleaded that the
debt became due on 11 or 12 December 2005,
averring that these were the dates when the plaintiff acquired
knowledge of the facts
giving rise to the claim and of the identity
of the debtor. The defendant has not disputed that the deceased died
on 12 December
2005. In the premises I accept that the due date upon
which the defendant is placing reliance, is the date on which the
deceased
died. For all intents and purposes, I also accept that this
was the date upon which the debt became due. I say this because it
has not been contended otherwise. It has also not been contended that
the deceased’s entire family, who were apparently witnesses
to
what is described as a wrongful and unlawful shooting, did not know
that the shooter was a policeman. Indeed, they were aware
of his rank
and they knew his name. This much is borne out by the original claim
dated 14 September 2006.
[9]
In terms
the defendant’s own
computation, the notice ought to have been delivered by no later than
12 June 2006 (and not 11 or 12
May 2006 as pleaded by the defendant).
Based on the defendant’s calculations then, the notice, which
was received on 5 July
2006, was received 22 days late.
[10]
I am satisfied that the debt has not
been extinguished by prescription.
The pre-summons notice was
received on the defendant’s behalf on 5 July 2006.
In terms of
s 15
of the
Prescription Act 68 of 1969
, prescription is
interrupted by service on the debtor of any process whereby the
creditor claims payment of the debt. The acknowledgment
of receipt
incorporating a rejection of the claim does not state that there is
no claim for payment of the debt. Indeed, it admits
that a debt has
been claimed, but appears to repudiate it on grounds of vagueness as
to time and place, rather than quantum.
[11]
The remaining issues for determination
are accordingly whether good cause exists for the plaintiffs not to
have ensured that the
defendant received their notice by 12 June
2006, and whether the defendant was unreasonably prejudiced by the
three week delay.
[12]
The
plaintiffs
allege that Xabendlini, “with the assistance of other members
of the South African Police Services” shot the deceased
in the
abdomen in full view of their entire family, as a result of which he
died a month later. They
go on to say that the
deceased, who was a taxi driver, used to provide for them
financially, as they were both unemployed. After he died, they
approached
Mr Mvaphantsi from attorneys
Mzimba Jubase and Company regarding a claim for loss of support. This
was during February 2006. They
were told to be patient as an
investigation had to be conducted first. During June that same year,
the attorneys advised that they
had sent the notice which forms the
subject matter of this application, to the respondent.
[13]
The
correct approach to the issue of condonation in matters of this
nature was set out by Heher JA in
Madinda
v Minister of Safety and Security.
[3]
Firstly,
the test does not involve proof on a balance of probabilities but
‘the overall impression made on a court which brings
a fair
mind to the facts set up by the parties.’
[14]
Secondly,
the requirement of good cause 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
(emphasis
added)
include, depending on the circumstances, ‘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.’
[4]
[15]
Thirdly,
good cause for a delay, Heher JA held, is not ‘simply a
mechanical matter of cause and effect’ but involves
the court
in deciding ‘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’; and in this process, ‘[s]trong
merits may mitigate fault; no merits may render mitigation
pointless.’
[5]
[16]
Fourthly, Heher JA highlighted the
interests involved when he said:
‘
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 failing 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.’
[17]
Fifthly, it is particularly important
that the circumstances relevant to just cause ‘be assessed in a
balanced fashion’
so that 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.’
[18]
Sixth, and most importantly, it must be
borne in mind that the concept of good cause is not self-standing but
is linked to the delay.
As a result, ‘subsequent delay by the
applicant, for example in bringing his application for condonation,
will ordinarily
not fall within its terms.’ This does not mean
that such delays are irrelevant: while they are not part of the ‘good
cause’ enquiry, they nonetheless are ‘part of the
exercise of the discretion to condone in terms of
s3(4)
’.
[19]
Finally,
unlike the position in other legislation or that where there has been
non-compliance with the rules of court, a clear distinction
is drawn
in s 3(4) of the Act between good cause, on the one hand, and the
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 the interests of the state in receiving timeous and
adequate notice.’
[6]
[20]
This brings me to
the relevance of the
delay between issuing the notice and prosecuting the application for
condonation. The plaintiffs’ original
summons, dated 14
September 2006, was issued out of this court on 18 September 2006. On
27 September it was served on Ms Gogela
, at the office of the
State Attorney (care of the senior legal advisor) in King Williams
Town. According to the return of service,
Ms Gogela accepted service
on behalf of the defendant herein.
[21]
Ten years went by. According to the
court file, nothing happened during that period. According to the
plaintiffs
, during that period
they
did not hear anything from
their
attorney Mr Mvaphantsi after
they were
told that the defendant had acknowledged receipt of the notice on 8
August 2006. Whenever
the second defendant
tried to get feedback, this attorney’s offices were closed.
When he learnt from the neighbouring offices that Mvaphantsi
had
moved out, he tried to visit him at home. Mvaphantsi was also not at
home.
Eventually
a lady from
Mvaphantsi’s home gave him a file which he took to the police
in East London in an attempt to follow up on the
notice which was
issued in June 2006. This is confirmed by the
defendant’s
Tracy van Rooyen who acknowledges that on or about 17 November 2015
the second
plaintiff
attended the
defendant’s
offices at Chiselhurst
in order to enquire about his civil claim against the police.
According to Van Rooyen the second
plaintiff
was armed with a combined summons, particulars of claim, the
sheriff’s return of service and the letter of acknowledgment
from the National Commissioner. According to the answering affidavit
of Lt Col James,
e
nquiries revealed that
neither the State Attorney nor the
defendant’s
offices had any record of the matter.
T
he
police immediately acknowledged receipt of the summons and did the
necessary to process the claim as the Office of the National
Commissioner, despite having acknowledged receipt of the claim, also
did not have it registered on
the
system. To this end a notice of appearance to defend was filed in
January, and a plea in February 2016.
[22]
I return to the second plaintiff’s narrative. He
continued to explain that he
was
unemployed and could not
engage
an
attorney to take the matter further. He was unaware of contingency
litigation until he instructed his present attorneys during
February
2016. According to the
plaintiffs
then,
they verily believed that their notice had been served timeously
until they approached their present attorneys in February
2016, who
told them that the notice had been served three weeks late.
[23]
The current attorneys placed
themselves on record on 17 February 2016.
The
defendant promptly pleaded to the me
rits of the
claim and threw in five special pleas on 25 February 2016. In sp
ite
of this, the plaintiffs’
attorneys
delivered a notice of bar on 12 April 2016, which they thankfully
withdrew two days later. Sadly, that was not yet the
end of the
matter as far as pleadings were concerned.
[24]
On
14 September 2016 the
plaintiffs’
attorneys delivered a notice that they intended amending the summons
issued ten years before, by substituting the Minister of Safety
and
Security with the Minister of Police and by introducing a
second
c
laim
on behalf of a child who was unborn when the deceased died (which
date they incorrectly cited as 11 November 2005 as opposed to
12
December 2005), th
ereby
increasing the quantum of the
plaintiffs
’
claim from R400 000 to R500 000. C
uriously,
it
appears that there was no objection to this, as a result of which the
plaintiffs
delivered amended particulars of claim on 12 October 2016.
[7]
[25]
As I have said,
in response to
these particulars the respondent raised no less than 12 special pleas
(bar one), on 10 November 2016. One of these
is
the issue of non-compliance with the six month notice period in the
Act. Thereafter pre-trial procedures appear to have been followed
without too much delay, and the court file was eventually submitted
to me for case management on 24 August 2017. On that occasion
I
issued
the
detailed directive
which I have already mentioned.
Because the
defendant has contended not only that the notice was out of time but
that the
plaintiffs
have unduly delayed
the prosecution of this application for condonation, I deem it
necessary to set out the contents of the directive
which I
deem to be relative to this question.
It
says this:
The
court file is in a mess. The papers must be bundled, indexed and
paginated.
Pars
2.6 to 2.8 of the draft case flow management order are nonsensical.
If they were to be adhered to, the experts would meet
on the first
day of trial, and par 2.8 would kick in four days after trial
commencement. The parties must file a draft case management
order
that serves some purpose and addresses the
crisp
issues for adjudication in the special pleas
(emphasis
added).
The
defendant has filed a 43-question request for further particulars
(on the merits of the main trial) which contains questions
which are
incapable of comprehension or interpretation in the language
intended to be used. Most of the answers sought are, in
any event,
not strictly necessary for trial preparation as envisaged in rule
21. This is particularly so in that the defendant
has raised no less
than 11 special pleas (plea “E” having been abandoned)
which should be dealt with first to determine
whether the parties
will enter the main trial. As such, requests for main trial
particulars should be held in abeyance.
The
second draft case management order must be filed by 6 October 2017.
A
conference will be held before a judge in chambers on 20 October
2017 at 09.30.
The parties must prepare to traverse the forward
management of the special pleas at this conference
(emphasis
added), as referred to at par. 2 of this directive.
[26]
Notwithstanding this, the matter was
jud
icially
certified ready for trial on
20 October 2017, with no
reference to the issue of the special
pleas, and was set down to proceed to trial on 22 March 2018. For
obvious reasons the trial on the merits, still anchor
ed by the
special pleas,
did not get off the ground.
The
plaintiffs filed
their notice of motion and
founding papers (a brief eight-page affidavit with essential
annexures) in th
is
application for
condonation on the same day. On 26 April 2018 Lieutenant Colonel
Garth Lester James, attached to the respondent’s
legal
services, filed answering papers, comprising of his own 39 page
affidavit and a confirmatory affidavit. The
plaintiffs
did not deliver a reply within the ten day period provided for in
Uniform Rule 6(5)(e), and the application ought to have been
considered ripe for hearing as at 10 May 2018. To my mind, no furth
er
judicial management was necessary. Nor was it sought.
[27]
For reasons which are not clear, the
file
was again thereafter submitted for case flow management and for
yet
another
conference before a judge in chambers.
(
I can only surmise that this time it was for a relatively
simple application which was ripe for hearing, to be case managed as
well
). This resulted in
the issuing of a
further directive
inviting the
plaintiffs
to deliver a reply (for which, by all accounts, condonation had not
been sought) whereafter a date on the opposed roll could be
allocated. About three months later, and on 8 August 2018 the
plaintiffs, by all accounts now
feeling
somewhat
obliged
to respond to the
defendant’s
vitriolic answer
(which, by virtue of its contents they had, by all accounts done well
to avoid)
filed an 18 page reply, annexing
thereto the judge’s general directive requiring them to
paginate and index the papers, file
their replying affidavit if any,
and file their heads of argument in order to secure a date on the
opposed roll.
[28]
For some reason the matter was further
enrolled for
a fourth
pre-trial
conference before a judge to be heard on 19 October 2018, on which
day it was recorded that the defendant intended launching
interlocutory applications for the delivery of
the
reply to be declared an irregular step and for the judicial directive
in that respect, to be “reviewed” and set aside.
[29]
True to his word,
the defendant
delivered the threatened applications, purportedly in terms of
Uniform Rules 30 and 53, on 3 April 2019. The notice
of motion
suggests that the threatened application for a
“
review
”
of the jud
ge’s
directive had in
the interim been abandoned, and to that end, the resultant conundrum
had hopefully been resolved.
[30]
On 25 April 2019 Tokota J dismissed the
rule 30 application with costs, granted leave for the delivery of a
fourth set of affidavits
in the matter before me, and adjourned it
sine die.
The
defendant
took full advantage of the
leave, with Lt Col James further taking up the cudgels as the
defendant’s
legal man, with a
replication to the
plaintiffs’
reply spanning some 14 pages, on 22 May 2019.
[31]
It is against th
e backdrop of
this
series of unfortunate events, that the
defendant prevails
on me to dismiss the
application, not so much because the notice was three weeks out of
time, but because
it is contended that the defendant
has suffered undue prejudice as a result of the inordinate delay in
the prosecuti
on thereof.
[32]
During the period which spans the time
between the giving of notice in 2006 and the receipt of the summons
in 2015, many things
happened. Xabendlini was tried in the Mdantsane
regional court for the deceased’s murder. He was acquitted,
according to
James, during 2008. During 2014 he left the police. He
died on 1 November 2015, shortly before the second
plaintiff
visited
the police armed with the 2006
civil claim. The police witness to whom
Xabendlini had made
his first report about what had transpired, apparently also left the
police some time in 2008 and cannot be traced. The
defendant
accordingly
claims that due to the delay in
prosecuting the application, the main witness for the police has died
and the respondent has not
been placed in a position where the police
can adequately garner and preserve evidence and identify witnesses.
[33]
In distinguishing between the extremely
short delay which preceded the giving of notice, and the inordinately
long one before the
application for condonation was prosecuted, I am
reminded by Heher JA, that it must be borne in mind that the concept
of good cause
is not self-standing but is linked to the delay. It is
trite that the primary rule for the interpretation of statutes is
that if
the meaning conveyed by the wording of the statute is clear,
it should be put into effect; it must be equated with the
legislator’s
intention. If the plain meaning is ambiguous,
vague or misleading, or a strict literal interpretation would
lead to
absurd results, then the court may
deviate from the literal meaning to avoid such absurdity.
[34]
To
my mind the meaning of section 3(4) of the Act is abundantly clear
and its literal meaning should be strictly interpreted
and applied.
The
literal meaning
is simply this: If the organ of state relies on the creditor’s
failure to serve a notice within six months from the time
when the
debt became due (which notice is peremptory)
[8]
,
the creditor may apply for condonation for its
notice
(my
emphasis) being out of time and the court
may
(my
emphasis) condone this delay (which was occasioned before filing the
notice) if the debt has not been extinguished by prescription,
if
good cause exists for the late giving of the notice, and if the organ
of state was not unreasonably prejudiced by the creditor’s
failure to give notice within the aforesaid six month period.
[35]
In the circumstances it is clear that
post-notice delay in bringing the actual application for condonation
is irrelevant when the
court is considering whether the three
requisites in section 3(4)(b) have been satisfied. If they have, the
court is at liberty
to grant the application, but it is not compelled
to do so. The inclusion of the phrase ‘may grant’ as
opposed to ‘must
grant’ simply means that a strict
literal interpretation of the section is not likely to lead to absurd
results. This is
so because the court, having satisfied itself that
the creditor qualifies in terms of the triad of requisites applicable
at the
time that notice was given, and due to the insertion of the
word ‘may’, has the discretion to nevertheless refuse the
application based on the particular circumstances of the case (which
may or may not include factors such as post-notice delay),
and
having
due regard to
the
requirement
for a fair-minded approach to be taken to all public hearings
including those where organs of state are involved. In the
circumstances
I agree with Heher JA. Post-notice delays are not
irrelevant. They simply do not form part of the ‘good cause’
enquiry.
Indeed, to my mind they do not form part of the enquiry into
any of the elements of the aforesaid triad
.
[36]
With
regard to the particular circumstances of this case, I do not intend
dwelling
protractedly
on
the question of pre-notice delay. It is alleged that the
plaintiffs
laid criminal charges against Cst Xabendlini on the same day that the
deceased was shot. Within two months of the deceased’s
death,
they had already taken steps to approach their erstwhile attorney
regarding a civil claim. This was long before Xabendlini
was
acquitted on the criminal charge. I have no reason to doubt their
version that when they approached their erstwhile attorney,
he
advised them to be patient as an investigation would ensue. Less than
four months later the attorney advised them that he had
issued the
requisite notice (dated 26 June 2006), whereafter summons was issued
less than three months later, after the attorney
had advised them
that the police had acknowledged receipt of the notice. In the
circumstances there was no reason for the
plaintiffs
to have enquired from their attorney whether the six month notice
period had been complied with. The
defendant
,
in his answering affidavit, has criticised the
plaintiffs
for not having delivered a confirmatory affidavit from their
erstwhile attorney. The
defendant
may well have a point. Having said that, the
defendant’s
answering affidavit fails to admit or deny, or confess and avoid
the
essential averments reflected in the
plaintiffs’
founding papers. That being the position, I am constrained, for
purposes of the application, to accept
the
correctness of the plaintiffs’ version.
[9]
This is particularly so when the
defendant’s
affidavits are dismissive, high-handed, dictatorial and riddled with
‘indignant argument and expostulation’.
[10]
[37]
The
plaintiffs
say that they made their best endeavours to expedite the matter. They
also say that they believed that the requisite notice had
been issued
timeously when advised of this by their erstwhile attorney, and that
they heard for the first time that the notice
was out of time (and
the implications which flowed from this) from their present attorney.
I have no reason to doubt this explanation,
particularly in the light
of pre-notice delay
the extent of which is largely
insignificant.
In the circumstances I am of the
view that the
plaintiffs
have shown go
od
cause
for the pre-notice delay.
[38]
The
same applies to the question of whether the
defendant
has been
unreasonably prejudiced by the pre-notice delay. In my view the
defendant
was not prejudiced at all. An organ of state, wh
ich
points out easily cur
able
shortcomings in response to a notice, and then uses those same
shortcomings to unilaterally close the door on
potential
creditors,
rather than invite specifics or obtain the information itself
(particularly when the complaint involves an extremely serious
allegation
such as murder), is hardly in a position to complain of
prejudice because the notice was three weeks out of time to
begin
with.
Any
prejudice which the
defendant
complains of cannot, by any stretch of the imagination, be causally
linked to the three week delay, nor has the defendant
seriously
contended that it does.
Relying upon failure to give timeous notice when such failure has not
caused prejudice does not redound to the credit of the
defendant.
[11]
[39]
The
defendant’s principle contention is that there has been a delay
of almost 12 years from the time that the
plaintiffs
gave
“
defective
”
notice up until the filing of their application for condonation, and
that the respondent has suffered undue prejudice, mainly in
the form
of essential witnesses having died or having left the respondent’s
service.
[12]
In traversing the post-notice delay, the defendant alleges that the
plaintiffs
have failed to show good cause.
[40]
In my view, the defendant’s
reliance on good cause in relation to post-notice delay is misplaced.
Indeed, the same
view taken
by the
lower court was described by Heher JA in
Madinda
as an error and as ‘wrong’:
‘
Whether
a proper explanation is furnished for delays that did not contribute
to the failure [to act timeously] 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.
… As I have
earlier pointed out, the 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 a delay can fairly be ascribed to a
disinterest in the appellant’s part.’
[13]
[41]
The post-notice delay in the matter
before me has been particularly long. Whether things would have
turned out differently if the
defendant
had invited the
plaintiffs’
erstwhile attorney to be more specific about dates and places instead
of unilaterall
y dismissing the claim
, is
a matter for speculation.
[42]
What is significant however, is
that the
plaintiffs’
erstwhile
attorney was not
deterred
by this
dismissive approach on behalf of an organ of state. No. He proceeded
to issue summons in any event. The summons, dated
14 September 2006
was acknowledged by the registrar of the Bisho High Court on 18
September 2006, a month after the National Commissioner
of Police had
regarded the matter as “finalized”. Thereafter the
summons was served on the State Attorney’s senior
legal advisor
on 27 September 2006, despite the
Commissioner
having rejected the
plaintiffs’
notice some six weeks previously. What is
of further
significance
is that the properly delivered
summons served to make good the two defects complained of in the
defendant’s
letter of repudiation:
It specified the exact date and the place of the shooting as well as
the exact date on which the deceased
died. What is more – it
provide
d
the initials, last name and
rank of the shooter. This begs the question: what more did the
defendant
need
to
deliver
a
plea, and if he still felt
compelled to do so, a special plea of no notice; alternatively
inadequate notice; alternatively, late
notice, there and then?
[43]
This
however, did not happen. By all accounts the
plaintiffs’
summons was simply ignored. While the summons was being ignored by
the attorneys of an organ of state, the
lay
plaintiffs on the other hand
,
thought all was hunky dory, having left their concerns in the
see
mingly
capable
hands of their attorney, who had not only given notice but who had
also issued summons relatively soon thereafter. It was
only after not
having received feedback from this attorney “for a while”,
that the
plaintiffs
started frequenting his offices and his home, but were not able to
source him
,
and apparently for good reason.
[14]
When they eventually managed to
lay their hands on
some documents from th
is
attorney’s home, they immediately approached the police.
[44]
To
my mind, the
defendant’s
election to defend the claim after having been shown documents which
were served on him a decade befor
e,
evidences,
to some extent, the
defendant’s
acceptance of liability for
having
failed
to file a plea when he should have, and, for whatever
reason
.
[15]
The
defendant
contends that the
plaintiffs
ought, in the light of the
defendant’s
failure to have entered an appearance to defend or to have pleaded
within the time limits prescribed by the
Uniform
Rules of this Court
,
have taken advantage of the redress provided by the rules, and ought
to have taken default judgment against the
defendant.
To my mind
t
he
contention is dis
in
gen
uous.
The
defendant is
prevailing
upon me to dis
miss
an application for condonation because the applicant (as a layperson)
failed to take default judgment against him ten years ago
at a time
when he was to some extent, if not equally, to blame for the
circumstances in which the individual parties found themselves
.
[45]
What then of the delay which transpired
from the time when the defendant eventually delivered its 1
2
special pleas on 25 February 2016 until the time it finally lodged
its application for condonation on 22 March 2018, some two years
later? In this regard the record speaks for itself. The
plaintiffs
,
their present attorneys having come on board on 17 February 2016,
appear to have b
een frustrated by further delays occasioned by
the approach at the time, to the judicial application of case flow
management.
[46]
It suffices to say that any argument
that the
plaintiffs
were substantially
responsible for further delays after their case had been
escalated
for
participation in the
trials, errors, experimentations
, sometimes overly zealous
judicial application
and perhaps even
mismanagement from time to time of a case flow mana
gement
project
in its infancy, is to ignore the
realities thereof. I have already dealt with directives which may
well have opened new cans
of worms, and knee jerk reactions to these
which ought best to have been avoided.
[47]
Before me is not only the classic
situation of the pot calling the kettle black. In the midst of it
all, there also appears to have
featured a judicial dish which seems
to have run away with an unruly spoon.
[48]
All
in all, I am satisfied that the
plaintiffs
have met the statutory requirements for condonation regarding
pre-notice delay. As for the post-notice delay and the fact that
the
plaintiffs
are by no means the only role
players in the creation of the overall impression left with this
court, I am of the view that fairness
and justice dictates that the
application for condonation must be upheld, notwithstanding the fact
that it has taken a long time
for the parties to have made it to this
hearing.
[49]
The
plaintiffs
,
in praying for condonation, are seeking an indulgence.
B
oth
parties have, from time to time during the period leading up to the
hearing of this application, dragged their feet.
The
respondent has
mulcted the application papers
in
affidavits which wax lyrical and are
inappropriately worded. In the premises I do not intend
making
a costs order either way.
ORDER:
The
plaintiffs’/applicants’ failure to have served notice on
the defendant/
respondent
in compliance with section 3(2)(a) of Act 40 of 2002 is condoned.
______________________
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Counsel
for the plaintiffs/applicants:
Mr
Mapoma instructed by Magqabi Seth Zitha Attorneys, East London
Counsel
for the defendant/respondent:
Mr
Dukada instructed by
The
State
Attorney, East London
Date
heard: 1 August 2019
Judgment
handed down:
20
August 2019
[1]
“Fixed date” is defined as the date of the commencement
of the Act, being 28 November 2002.
[2]
The reason for this could be that the notice was vague around the
question of when the debt arose.
[3]
2008 (4) SA 312 (SCA)
[4]
Paras 8 and 10
[5]
Para 12
[6]
Paras 12, 13, 14 and 15 as referred to in the unreported judgment of
Plasket J in
Maguga
v Minister of Police
(case
no. CA342/2017) handed down in the Eastern Cape Division,
Grahamstown, on 4 September 2018 (pars 22 to 28).
[7]
Notwithstanding which the parties persist in referring in the
citation of this case in various documents to the defendant as
the
Minister of Safety and Security.
[8]
See JR de Ville: Constitutional and Statutory Interpretation, where
the learned author says the following: “Where a provision
is
couched in peremptory terms (with words such as ‘shall’
or ‘shall not’ or ‘must’ or ‘only’)
it is usually an indication that the provision is peremptory.
Non-compliance would, in the absence of contrary indications, lead
to invalidity … Where the provision is vague or indefinite
language is used as to the requirements to be complied with,
it will
give an indication that non-compliance will not lead to invalidity.”
See
Mohamed and Others NNO v Ally
1999 (2) SA 42
(SCA) 48;
Sutter
v Scheepers
1932 AD 165
at 173-174;
Leibbrandt v South
African Railways
1941 AD 9
at 13;
Maharaj and Others v
Rampersad
1964 (4) SA 638 (A) 644-645.
[9]
See
Moosa
v Knox
1949
(3) SA 327
(N) at 331
[10]
By way of example, in
Retrofit
(Pvt) Ltd v Posts and Telecommunications Corporation
1996 (1) SA 847
(ZSC) the Zimbabwe Supreme Court disallowed half of
the costs in respect of the preparation of a ‘voluminous
answering
affidavit which contained much irrelevant, unnecessarily
disparaging and argumentative matter’ (at 867H)
[11]
See MEC for Education, Kwazulu-Natal v Shange
2012 (5) SA 313
(SCA)
pars 17-11;
Mothupu
v MEC, Department of Health Free State
(20598/2014
[2016] ZASCA 27
(22 March 2016) (neutral citation).
[12]
It is difficult to
understand
the precise nature of the resistance to condonation. On the one hand
the
defendant
says that he has been deprived from assessing his position,
identifying witnesses and garnering and preserving evidence. On the
other hand
it
is contended
that he nevertheless has strong prospects of success in the main
case. The
defendant
appears to be both approbating and reprobating in his opposition.
[13]
At [14] and [20]
[14]
The attorney, who appears to have practised as a sole proprietor,
was interdicted from practising inter alia on 30 May 2011 (see
Law
Society of the Cape of Good Hope v Mvaphantsi
(223/2011) [2011] ZAECGHC 19 (30 May 2011) (neutral citation)).
[15]
According to the
defendant’s
deponent, and despite diligent enquiries having been made, the State
Attorney and the Office of the National Commissioner denied
knowledge of both the notice and the claim,
over
and above which the
“system failed to recognise” it, despite documentary
evidence dated ten years before, that the Commissioner had received
the notice and that the State Attorney’s legal department had
acknowledged the summons and the particulars of claim.