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[2018] ZANCHC 48
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Davids v Coetzee and Others (CA&R 42/2017) [2018] ZANCHC 48 (29 June 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:     CA&R 42/2017
CASE
NO: DATE HEARD: 18 JUNE 2018
DATE
DELIVERED: 29 JUNE 2018
In
the matter between
DAVIDS,
DANIEL
Appellant
and
COETZEE,
HENCO
1
st
Respondent
SWARTZ,
GERHARD
2
nd
Respondent
MAPOGO
SECURITY SERVICES
3
rd
Respondent
MINISTER
OF SAFETY AND SECURITY
(Now
THE MINISTER OF POLICE)
4
th
Respondent
Coram:
Williams ADJP
et
Olivier J
JUDGMENT
Olivier
J:
[1]
The appellant, Mr Daniel Davids, is suin g MrM H Coetzee (first
defendant/ respondent), Mr G Swartz
(second defendant/ respondent),
Mapogo
Security
Services (third defendant/ respondent) and the Minister of Police
(fourth defendant / respondent
[1]
)
for damages. The four claims set out in the particulars of claim to
the summons, issued in December 2014 in the Regional Court,

Kimberley, are based on two incidents.
[2.]
The allegations about the first incident are that on 25 December 2011
the first defendant, the second
defendant and employees of the third
defendant assaulted the appellant when he was accused of having
committed the crime of housebreaking
with intent to steal and theft
at the home of the first defendant, that he was subsequently arrested
by members of the South African
Police Service and that he was
detained until 28 December 2011.
[3.]
The first three claims are based on this incident. Claim 1 is against
the first three defendants for
damages caused by the assault. Claim 2
is against the 1
st
defendant for damages caused by
malicious prosecution, following the first defendant 's allegedly
false complaint against the appellant.
Claim 3 is against the fourth
defendant, and is for damages suffered as a result of the appellant's
allegedly unlawful arrest and
detention.
[4.]
In the second incident the appellant was arrested by members of the
South African Police
Service on 29 May 2012, again on a charge of
housebreaking with intent to steal and theft , and he was detained
until 12 June 2012.
Claim 4 is based on this incident and is against
the fourth defendant for damages suffer ed as a result of this arrest
and detention.
[5.]
It is common cause that both arrests took place without warrants. It
is furthermore common
cause t hat, as regards the first incident, the
prosecution of the appellant was terminated on 25 February 2013, when
the charge
against him was withdrawn, and that the second
housebreaking charge ended in the appellant's acquittal in August
2013.
[6.]
Claims 3 and 4, against the fourth defendant, are the subject of this
appeal. In terms
of the provisions of section 3 of the
Institution
of Legal Proceedings against Certain Organs of State Act
[2]
("the
Act'')
legal
proceedings in respect of these claims would have had to be preceded
by a notice,
"within
six months from
the
date on which the debt became due",
to
the fourth defendant
"
in accordance with section 4(1 }"
[3]
.
In
terms of section 4(1)(a) of the Act the notice would in this
particular case have had to be sent to
"
the National Commissioner and the Provincial Commissioner of the
province in which the cause of action arose".
[7.]
On 25 July 2014 letters were respectively sent by registered post and
hand delivered to
the
"SOUTH AFRICAN POLICE SERVICES MINISTRY
OF SAFETY AND SECURITY PR/VATE BAG X922 PRETORIA 0001"
and
the
"STATE ATTORNEY WOOLWORTHS BUILDING FIRST FLOOR
KIMBERLEY".
The contents of the two letters are identical
and both are headed
" LETTER OF DEMAND IN TERMS OF
SECTION 3
OF THE
INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF
STATE, ACT 40 OF 2002
".
The letters were therefore clearly
not addressed to either the National or the Provincial Commissioner
of the South African Police
Service.
[8.]
In a letter dated 15 August 2014 the Provincial Head, Legal Services;
Northern Cape, of
the South African Police Service in Kimberley
responded to the notice by stating that it was
" not accepted
as is
(sic)
not addressed to national
(sic)
Commissioner".
[9.]
Another letter was hand delivered to
" SOUTH AFRICAN POLICE
SERVICES TRANSVAAL ROAD KIMBERLEY"
on 23 September 2014, but
apparently only with a view to obtaining access to the police dockets
concerning the two housebreaking
charges against the appellant.
[10
]
Section 3(4)
of the Act provides that, if notice
has not given been timeously or properly and if the particular organ
of stat e
"relies"
on that failure as a defence, the
Court may on application grant condonation:
"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."
[11.]
"
These requirement s are conjunctive and must be established by the
applicant''
[4]
[12.]
Such an application was instituted in July 2015. It was dismissed
with costs and
the present appeal is against that judgment and order.
[13.]
It is common cause that neither of claims 3 or 4 has become
prescribed.
[14.]     In his application the
appellant sought only condonation of the failure to serve the notice
timeously.
The founding affidavit in the application addressed only
the fact that the notices had not been sent within the prescribed
period
of 6 months after the debts became due. The fact that the
notices had not been sent to the National Commissioner and to the
Provincial
Commissioner of this province, where the causes of action
arose in this case, was not dealt with at all. As I have already
pointed
out, this is the only aspect that was in fact raised when the
fourth defendant rejected the notice. The quest ion could be asked

whether the fourth defendant had in fact
"
relied" ,
for
the purposes of
section 3{4)(
a) of the Act, on the fact that the
notice had been given outside the prescribed period of 6 months.
Would the
"rejection"
of
the notice on the basis of a different failure have triggered the
need to apply for condonation of a failure that had not been

pertinently relied upon by the organ of State? In
Minister
of Safety and Security v De Witt
[5]
it
was held that
"
the objection of the organ of State is a jurisdictional fact for an
application for condonation, absent which the application
would not
be competent''.
The
question would then be whether an application for the condonation of
a failure to which the fourth defendant had never objected,
was
competent. The fourth defendant, however, never objected to the
application for condonation on this basis. In fact, it answered
fully
to the case made out by the appellant for condonation of his failure
to adhere to the 6 month requirement. In view of the
conclusion
reached below it is not necessary to decide this.
[15.]
On the papers, and on the grounds of appeal, the issue is whether the
Regional Magistrate erred in
refusing to condo ne the fact that the
notice had not been given within the prescribed period.
[16.]
For purposes of what follows the relevant dates as far as the first
arrest and period of detention are concerned are 25 December
2011
(arrest), 28 December 2011 (release) and 25 February 2013 (withdrawal
of charge), and as far as the second arrest and period
of detention
are concerned, 29 May 2012 (arrest), 12 June 2012 (release) and
August 2013 (acquittal).
[17.]
Mr Sampson, the attorney of Legal Aid South Africa who has at all
material times hereto represented the appellant, argued
that the two
debts that are the subject s of claim
s 3
and
4
only became due, for
purposes of
section 3{2)(a)
of the Act, when the criminal proceedings
in respect of the two charges culminated in, respectively, a
withdrawal of the first
charge and an acquittal on the second charge.
He relied on the judgment in
Makhwelo
v Minister of Safety and Security
[6]
.
In
that case the Court distinguished, for purposes of the onset and the
running of the 6 month period, claims for damages caused
by unlawful
arrests and detention from other delictual claims. The reasoning
adopted by the Court seems to have been as follows:
18.1
A
"debt
must be immediately claimable for it to be due
...............".
[7]
18.2
For
this to be case, a plaintiff would have to be able to allege and
prove, in the case of an arrest without a warrant,
"
that the arresting officer had
no
reasonable suspicion that he had or was going to commit a scheduled
of fence"
[8]
.
18.3
This
the plaintiff would not be able to do
"prior
to the outcome of the criminal trial or prior to charges being
dropped or otherwise withdrawn"
[9]
,
because
the arrest and attention
"will
be justified if there is a conviction"
[10]
.
A
claim for unlawful arrest and detention is therefore not
"immediately
claimable and therefore justiciable"
before
the finalisation of the criminal proceedings
[11]
and is therefore distinguishable from other delictual claims in that
it is
"dependant
on the outcome of
criminal
proceedings"
[12]
18.4
It
was also held that such a plaintiff would not, without the police
docket, be able to know whether
"the
arresting officer was acting unlawfully when effecting the arrest
rather than that the complainant had falsified a charge
against him"
,
and
that
"the
docket is not available to an accused until the investigation is
completed and he is presented with the indictment"
[13]
[18.]
In this regard Spilg J relied on the judgment in
Unilever
Bestfoods Robertsons (Pty) Ltd and Others v Soomar and Another
[14]
,
and
on the fact that the Supreme Court of Appeal had in that matter
confirmed the principle that a Court
"should
not be called on to prejudge the findings of a criminal court",
like
would be the case where damages are claimed on the basis of malicious
prosecution before the prosecution has actually been
finalised or
terminated.
[19.]
In the first place the existence, at the time of the arrest, of a
reasonable suspicion as required
by the provisions of section
40(1){b) of the
Criminal
Procedure Act
[15]
is
not an element of the crim e of housebreaking with intent to steal
and theft. I fail to see how the determination of the issue
of the
existence of such a suspicion, even if it is for the moment assumed
that the civil trial could precede the criminal trial,
could
compromise or
"
prejudge( d ) the findings of the criminal court"
trying
a charge of housebreaking. The appellant would therefore not in these
civil proceedings have been a party
"seeking
in
(those)
proceedings
to
controvert
or anticipate a finding given or to be given against him"
[16]
in
the criminal proceedings, and neither would the fourth defendant have
been, and the principle could therefore not in the present

circumstances apply to the same extent as it would have, had the
intended damages claim been based on malicious prosecution.
[20.]
Secondly an unlawful arrest cannot in the manner suggested in the
Makhwelo
judgment
[17]
be
"
justified"
by
a subsequent conviction of the accused, and conversely an acquittal
or the withdrawal of the charge could not in itself serve
as proof
that the arrest without a warrant had been unlawful
[18]
.
I cannot therefore agree that the justiciability of a damages claim
for unlawful arrest and detention would be dependent on the
outcome
of criminal proceedings in respect of a charge that is itself
completely unrelated to the arrest and the detention.
[21.]
Thirdly it is not clear to me why the contents of the police docket
regarding a charge of housebreaking
would necessarily have assisted
in obtaining particular s regarding the belief of the arresting
officer at the time of the arrest.
In any event, why should a
plaintiff like the appellant have to speculate about the information
that caused the officer to arrest,
and about whether the arresting
officer had not himself been misled, and have to investigate this
before serving a notice. The
arrest without a warrant would
prima
facie
be
unlawful
[19]
and should surely
in itself therefore be sufficient cause for , at the very least,
issuing and serving the notice.
[22.]
Lastly, the
Unilever
case was in any event distinguishable and
did not concern claim s for damages suffered as a result of unlawful
arrest and detention.
[23.]
Insofar as the Court in the
Makhwelo
case may have found,
relying on the
Unilever
case, that a claim for unlawful arrest
and detention would only arise if and when there is an acquittal in
the criminal proceeding
s in respect of the charge on which the
arrest took place, or the charge is withdrawn, I must respectfully
disagree. In my view
the debts that are the subject s of claims 3 and
4 would have been due, at the very latest, on the respective dates of
the
appellant
's release from detention
[20]
[24.]
The explanation for the delays between when the two debts became due
and when notice was given is
contain d in the appellant's founding
affidavit and in the supporting affidavit of Mr Sampson. Their
explanation is briefly as
follows:
26.1
The appellant approached Mr Sampson late in November 2013 "to
discuss possible commencement
of Summons Proceedings" .
26.2
Mr Sampson advised the appellant that he needed access to the police
docket s pertaining to
the two incidents. Mr Sampson says that this
was necessary
"in order that we would be in a better position
to make a judgment call as to whether the arrest and detention was
unfounded
and also to have sight of what transpired in the respective
court appearances".
26.3
The appellant did not have the particulars of the dockets and the
case numbers, and it would
seem that Mr Sampson then requested him to
get this information. During the course of 2014 the appellant
provided Mr Sampson with
"various bits of information".
26.4
"...
one Saturday Morning during 2014"
Mr Sampson
and the appellant visited the scenes were the appellant had been
assaulted and according to Mr Sampson the appellant
"pointed
out the places at which the various attacks took place".
Mr
Sampson says that
"this enabled
(him)
to make a better
adjudication upon what was actually transpiring and assisted
(him)
with the furtherance of the drafting of the documentation".
[25.]
The first and most obvious problem with the explanation is that it
does not cover the periods between
when the appellant was released
from detention, on the one hand, and the date that the appellant went
to Mr Sampson with a view
to have summons issued.
[26.]
In the case of claim 3 this period amounted to almost two years, from
28 December 2011 to November
2013. The second release took place on
12 June 2012, and the appellant only went to Mr Sampson approximately
17 to 18 months later.
These two periods constitute extraordinary
long delays and the appellant has not even bothered to claim that he
was unaware of
the statutory requirement of notice of the intention
to institute the legal proceedings.
[27.]
After the appellant' s initial consultation with Mr Sampson a further
approximately 8 months expired
before the notices were eventually
dispatched and hand delivered. It has not been explained why the fact
that the appellant may
not at that stage have been able to furnish Mr
Sampson with the numbers of the relevant police dockets and cases
would have prevented
Mr Sampson from preparing notices containing the
particulars that are required by section 3(2)(b) of the Act,
viz
"the facts giving rise to the deb t''
and
" such
particulars of such debt(s) as
(were)
within the knowledge of
the
(appellant)" . It is not claimed, for example, that the
appellant could not at that stage remember when and where he was
arrested,
when he was released, what the charges were that he was
arrested for and what the outcome thereof was. There is also no
apparent
reason why the appellant would not have been ab le to
describe to Mr Sampson, at that stage already , what the
circumstances were
under which the arrest s had taken place.
[28.]
Neither the appellant nor Mr Sampson attempted to
explain exactly what particulars it is that were not available
at the
time of the first consultation and that prevented Mr Sampson from
drafting notices complying with the statutory requirements,
and when
those particulars eventually became available.
[29.]
The statement that the appellant had in the course of 2014
"on
numerous occasions"
furnished Mr Sampson with
"
various bits of information"
in a piecemeal fashion is
hopelessly vague. When was this information given to Mr Sampson and
what did it consist of? Did it include
any of the particulars
eventually included in the notices and, if so, how did the appellant
manage to obtain that information without
access to the dockets?
[30.]
It is in any event clear that Mr Sampson had in the end managed to
prepare the notices with sufficient
particulars even before he
managed to access the contents of the police dockets.
[31.]
A visit to the scenes of the attacks on the appellant during the
first incident could also not have
assisted Mr Sampson with the
drafting of a notice about the arrest that had taken place after
those attacks.
[32.]
The explanation as a whole was not nearly
"sufficiently
full to enable the Court to understand how it really came about''
[21]
,
and
this would have been my conclusion even if the two debts had only
become due on the dates of the finalisation or termination
of the
relevant criminal proceedings.
[33.]
The situation is exacerbate d by the fact that, despite it being
trite that an application for
condonation has to be brought as soon
as possible after the need therefore becomes known
[22]
the present application was only lodged during July
2015.
For this too there is no explanation.
[34.]
This brings me to the issue of the prospects of success of the
appellant' s claims against the fourth defendant, which
could in
appropriate circumstances
"
play a significant role
-
'strong
merits may mitigate fault; no merits may render mitigation
pointless'. The court must be placed in a position to make an

assessment on the merits in order to balance that factor with the
cause of the delay as explained by the applicant. A paucity of
detail
on the merits will exacerbate matters for a creditor who has failed
to fully ex plain the cause of the delay. An applicant
thus acts at
his own peril when a court is left in the dark on the merits of an
intend ed action,
..."
[23]
[35.]
As a result of the fact that the appellant's arrests took place
without a warrant the arrests would,
as already mentioned, have been
prima facie
unlawful, and it would have been for the fourth
defendant to prove the contra ry.
[36.]
The appellant has, however, conceded that the police had on the first
occasion arrested him after
he had been identified as a suspect who
had broken into the house of the first defendant. Housebreaking with
the intent to commit
an offence is one of the offences list ed in
Schedule 1 to the
Criminal
Procedure Act.
If
the arresting officer reason ably suspect ed the appellant of having
committed a Schedule 1 offence, as he or she surely would
have
suspected after such a report ,
.
the arrest of the appellant without a warrant would have been
lawful
[24]
The appellant did
not make out a case that there was a reasonable prospect that the
fourth defendant would not be able to discharge
it s onus to prove
that the repo rt made to the police on that occasion was objectively
sufficient, in the circumstances, to justify
a reasonable suspicion
as required in section 40(1)(b) of the
Criminal
Procedure Act
for
purposes of a lawful arrest without a warrant under such
circumstances .
[37.]
Also as regards the second arrest the appellant never even so much as
alleged that
the fourth defendant would not, in the trial of the
action that he had instituted , be able to discharge the onus of
proving that
the arrest was lawful despite the absence of a warrant,
or at least that he had no reason to believe that the fourth
defendant
would be able to discharge the onus. The fact that the
fourth defendant would in the trial of the action have been burdened
with
the onus to prove the lawfulness of the arrest s (and therefore
of the sub sequent detention) did not, in my view, relieve the
appellant from the duty, in his application for condonation and in
making out a case that there was good cause for condonation,
to deal
with the prospects of success with claims 3 and 4.
[38.]
It can therefore not be said, in respect of any of the
two arrest s and periods of detention, that such strong
prospects of
success appear from the papers that the inadequate explanation of the
default can be said to have been mitigated thereby.
[39.]
In his founding affidavit the appellant went no further, as far as
the issue of prejudice is concerned,
than to make the bald and
unsubstantiated allegation that there would be no prejudice,
presumably for the fourth defendant, f condonation
was granted. This
too was in my view not sufficient, as it is generally accepted that
the party who seeks condonation would have
to satisfy the Court
as to the absence of prejudice, not the other way around
[25]
It was for the appellant to make out this case in founding, and the
fact that the fourth defendant may have been vague about this
issue
in the answering affidavit does not assist the appellant in this
regard. This aspect is, however, not in my view decisive,
because the
application for condonation was in any event doomed to fail on the
basis that one of the three requirements,
viz
goo
d cause, had not been shown.
[40.]
It follows that the appeal should in my view be dismissed and there
is no reason
why the costs should not follow this result.
[41
]        In the premises the
following order is made:
THE
APPEAL IS DISMISSED WITH COSTS.
CJ
OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
CC
WILLIAMS
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For
the appellant:
MR B SAMPSON
(Legal
Aid South Africa, Kimberley )
For
the 4
th
defendant       MR
PVISAGIE
(Office
of the State Attorney)
[1]
The fourth respondent is the only defendant involved in this appeal
and in what follows reference will therefore be made to the

respondents in their capacities as defendants in the action.
[2]
40 of 2002
[3]
Section 3(2) (a)
[4]
Van
Niekerk and another v Member of the Executive Council for Police,
Roads, Transport, Free State; Van Jaarsveld v Member of
the
Executive Council for Police, Roads, Transport, Free State
[2017
] JOL 39250 (FB) para [5] ; See also Minister of Agriculture and
Land Affairs v CJ Rance ( Pty) Ltd
2010 (4) SA 109
(SCA) para [11]
[5]
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA ) para [10]
[6]
2017 (1) SA 274
(GJ) (Also reported at [2015] 2 All SA 20 (GJ))
[7]
Ibid,
para
[52]
[8]
Ibid,
para
[56]
[9]
Ibid,
para'
s [57], [58]
[10]
Ibid
,
para
[58]
[11]
Ibid,
para
[58]
[12]
ibid,
para'
s [58], [50]
[13]
Ibid,
para
[55]
[14]
2007 (2) SA 347 (SCA
[15]
51 of 1977
[16]
Unilever
Best foods Robertsons (Pty) Ltd and Others v Soomar and Another,
supra,
para
[29]
[17]
Makhwelo
v Minister of Safety and Security,
supra,
para
[58]
[18]
Compare
R
v Moloy
1953
(3) SA 659
(T) (Also reported at [ 1 9 53)
4 All SA 9
(T)) at 662E;
Scheepers
v
Minister
of Safety and Security 2015 (I) SACR 284 (ECG) para' s [18] . [19];
Minister of Safety and Security and Another v Mhlana
2011 ( I) SACR
63 (WCC) para [ 1 5]; Qaku v Minister of Safety & Security 201 3
JDR 2188 (ECM) para f1 3 J: Terblanche v
Minister of Safety and
Security and others
[2009] 2 All SA 211
(C) para [84]; Van Wyk v
Minister of Police 2016 JDR 2163 (GP) para [17);  Visserv
Minister of Police 20 1 5 JDR 2217 (GP)
p23, para 47
[19]
Compare
Minister
of Safety and Security v Sckhoto and Another
2011
(5) SA 367
(SCA) para [7]
[20]
Compare Lombo v African National Congress
2002 (5) SA 668
(SCA) para
[26]; Maduray v Minister of Safety & Security of the RSA &
another (2005] JOL 1 5 8 3 6 (D) p2 I ; Taylor
v Minister for Safety
& Security & Another
2006 (3) SA 328
(SCA) para [9]
[21]
Silber
v Ozen Wholesalers (Pty) Ltd
1
9
54 (2) SA 345
(A) at 353A
[22]
Compare
HL
v MEC Health of the Free State Provincial Government
[
2018] 1 All S A 522
(FB) para [37]
[23]
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd,
supra, para [37]; See also MEC for Education , Kwa-Z ul u Natal
v
Shange 2012 (
5) SA 313
( SCA ) para's [12] , [ 15]
[24]
Compare
Minister
of Safety and Security and Another v Swart
2012
(2)  SACR 226 (SCA ) para' s [16],
[25]
Compare Ex parte Chenille Corporation of SA (Pty) Ltd and Another:
In re Chenille Ind us tri es (Pty) Ltd
1962 (4) SA 459
(T) al 461 H;
Rose n v Bruyns, NO 19 73 (I) SA 815 (T) at 818H