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[2018] ZAGPPHC 739
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Roets v Minister of Safety and Security and Another (2015/54483) [2018] ZAGPPHC 739 (15 March 2018)
IN
THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFIUCA, PRETORIA
NOT
REPORTABLE
CASE
NO:2015/54483
In
the matter between -
HENDRIK
ADRIAAN
ROET
S
Applicant
And
Applicant
MINISTER
OF SAFETY AND SECURITY
First Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second Respondent
And
In
the matter
between:
CASE NO: 2015/78694
HENDRIK
ADRIAAN
ROETS
Applicant
And
NATIONAL
DIRECTOR OF PUBLIC" PROSECUTIONS
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
TSATSAWANE
A,J
Introduction
This
is an application for leave to appeal against my judgment in which I
dismissed the applicant's application for condonation.
2
By agreement between the parties the two applications
for condonation
were heard together. One application for leave to appeal was
delivered in respect of both applications and was
heard as one
application. This
is
convenient for the Court and the parties.
The
judgment
3
i
delivered one judgmcnt which dealt with both applications
for condonation.
4
In his action proceedings, the applicant claims damages against the
respondents for damages allegedly suffered as a result of an
alleged
unlawful arrest and detention. The respondents objected to being sued
without the applicant having complied with the provisions
of section
3(1) of the Institution of Legal Proceedings Against Certain Organs
of the State Act 40 of 2002
(''the Act
").
It
is as a result of this objection that the applicant brought the
applications for condonation.
5
In my judgment, I concluded that the applicant has failed lo provide
a full and reasonable explanation for his non-compliance with
the
provisions of section 3(1) of the Act. Of importance, I concluded
that the applicant's debt arose from the date on which he
was
allegedly unlawfully arrested and detained and not from the dale on
which he was released from the alleged unlawful detention.
6
In paragraphs 30, 37 and 38 of the judgment, 1 said:
"30
The question as to when the debt arose is also relevant for purposes
of condonaho11. This is so due to the fact that the notice
in terms
of section 3(1) of the Act is required to be given withlin six months
from the date on which the deb/ arose. For this
reason, the
explanation.for the non-compliance 11111st necessarily cover the
entire period of the non-compliance: in this case,
starting from the
date of the alleged unlawful arrest and detention. 111e applicant
:r;
explanation does not ·satisfy this requirement, which means
that it cannot be said to be a full explanation.for the
non-compliance.
37
In the premises . and in the light of the above quoted
authoriaes, ii follows that the applicant's debt arose on 13
September 2012
when he was arrested and detained. It is common cause
that the applicant did not deliver to any oft he respondents a notice
in
terms of section 3(1) of the Act within six months from that dare.
i.e. 13 September 2012. This being the case, it .follows
that in order to be granted condonation for this non-compliance, the
applicant ought to have given a fit!! and reasonable explanation
for
his failure lo deliver the notice contemplated in section 3(1) of the
Act which covers the entire period from J
3 September
2012. The applicant did not do so d11e 10 the fact that he proceeded
on the basis that the debt which is the subject
of his claims aiainst
the respondents arose upon his release from incarceration. This is
wrong.
38
ln my view, and in the light <f what the applicant does not
say in paragraphs 20 and 22 of his founding affidavits. the applicant
has failed to give a .fill and reasonable explanation for his
non-compliance with section 3(1) of the Act lo enable the Court
to
understand as to how the non-compliance cwne about and his motires
and role in relation thereto .·•
7
The above quoted paragraphs clearly indicate the basis on which
I
found against the applicant.
The
application for leave to appeal
8
The application for leave to appeal is based on numerous grounds set
out in the notice of application for leave to appeal and they
were
argued before me at the hearing of this application.
9
Mr. Du Plessis who appeared on behalf of the applicant and Mr.
Tshivhase who appeared on behalf of the respondents filed
comprehensive
heads of argument in suppo1t of their respective cases.
I am indebted to them for their assistance in this regard.
10
In terms
of section 17(1) of the Superior Courts Act JO of 2013, I
must grant leave to appeal if I am of the opinion, amongest others,
that
the appeal would have a reasonable prospect of success.
11
The application
for leave to appeal is based on the fact that i erred
in various respects described in the notice of application for leave
to appeal
·- it is not based on the other grounds set out in
section 17(1), i.e. that there is some other compelling reason why an
appeal should be heard such as conflicting judgments on the matter
under consideration .
12
The applicant
docs not seek leave to appeal against my finding that
the debt which is the subject of' his claims arose from the dale on
which
he was allegedly unlawfully arrested and detained and
nol
from tbe date on which he was released from detention. The
relevance of this is that the explanation for the non cornpl
iancc
must cover the entire period from the date of the alleged
unlawful arrest and detention and not only from the date on which the
applicant was released from detention.
13
In my view, the applicant' s general grounds of appeal to tl1e
effected that the
"learned judge erred in finding that the
applicant did not comply with the provisions of section 3(1)
..."
and that·
leamed judge erred in .finding that the appUcanl
failed to.furnish a full and reasonable explanation for the delay
...'' do not relate to the finding that the date on which the
debt arose is the date on which the applicant was allegedly
unlawfully
arrested and detained. If this finding is not challenged.
there is no prospect that lhe appeal would succeed.
14
In patiicular, the applicanl docs not seek leave to appeal against
the finding that his explanation for the non-compliance had
to cover
the entire period of non compliance from the date of the alleged
unlawful arrest and detention and that bis explanation
docs not cover
that entire period.
15
The fact that the applicant docs not seek leave to appeal against the
aforesaid findings means that such findings will remain ,md
if they
do remain. as they should remain because leave to appeal is not
sought against them, the appeal would not have a reasonable
prospect
of success.
16
I was referred to
I urnbull-Jackson v Hibiscus Coast MLmicipality
And Others f.014.1§) SA 592 (CC) in support of the contention
that I erred
in holding the applicant responsible for the failure of
his erstwhile attorneys to deliver the
notice
in terms of section 3(1) of Lhc Act. Reliance on
Turnbull-Jackson
is misplaced due to the fact that therein, the Court actually
found that the
"applicant 11-•as vi i/anl''
and it
is as a result of this finding that the Court concluded that the
applicant's counsel's
"unsati!.foctoJJI explanation cannvl be
imputed 10 him."
In this case, the applicant was not
vigilant and does not seek leave to appeal against my finiling in
paragraph 29.4 of the judgment
to the effect that:
"29.4
...
In this case, the applicant has placed ve1J1 sketchy
ir!formation before the Court lo enable the Court lo understand as lo
exactly
what role his erstwhile attorneys played or d;d not play
which resulted in the no11-compliance.
''
17
The correct legal position is that an applicant for condonation must
provide a full and reasonable explanation which covers the
entire
period or the delay. This was not done in this case and the applicant
does not seek leave lo appeal against my finding to
the effect the
explanation had lo cover the entire period from the date of the
alleged unlawful arrest and detention and that he
provided sketchy
infonna1ion as to exactly what role his erstwhile attorneys played
which resulted in his non-compliance.
18
in the premises, without the applicant having provided:
(a)
a
Ji1Jl and reasonable explanation which covered the entire period of
the non-compliance from the date of the alleged unlawful arrest
and
detention; and (b) full information as to exactly what role his
erstwhile attorneys played which caused his non compliance;
and
without the applicant seeking leave to appeal against the finding
that the explanation had to cover the period from the date
of the
alleged unlawful arrest and detention, I am of the opinion that an
appeal would not have a reasonable prospect of success.
19 the
application for leave to appeal is dismissed with costs.
Kennedy
Tsatsawane
Acting
Judge of the Gauteng Division of the High Court of South Africa,
Pretoria
15
March 2018