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[2018] ZANCHC 96
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Davids v Coetzee and Others (CA&R 42/2017) [2018] ZANCHC 96 (29 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
CA&R 42/2017
DATE
HEARD:
18 JUNE 2018
DATE
DELIVERED:
29 JUNE 2018
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
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 suing Mr
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 suffered 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 that, 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
PRIVATE
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 state
"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
requirements 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
question 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 condone 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
subjects of claims 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 offence"
[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
crime 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
particulars 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 claims 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 proceedings
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 subjects 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 contained 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
dockets 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 debt"
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 able to
describe to Mr Sampson, at that stage already, what the circumstances
were
under which the arrests 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 exacerbated 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
explain 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 intended 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 contrary.
[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 listed in Schedule 1 to
the
Criminal
Procedure Act.
If
the arresting officer reasonably suspected 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
its
onus to
prove that
the report 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 arrests
(and therefore
of the subsequent 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 arrests
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, if 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
good
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.
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
CC WILLIAMS
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For
the appellant:
MR BSAMPSON
(Legal Aid South
Africa, Kimberley)
For
the 4th 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
Bestfoods 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
[1953] 4 All SA 9
(T)) at
662E;
Scheepers
v Minister of Safety and Security
2015 (1) SACR 284
(ECG) para's [18], [19];
Minister
of Safety and Security and Another v Mhlana
2011 (1) SACR 63
(WCC) para [15];
Qaku
v Minister of Safety & Security
2013 JDR 2188 (ECM) para [13];
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]; Visser v Minister of Police 2015 JDR
2217 (GP) p23, para 47
[19]
Compare
Minister
of Safety and Security v Sekhoto 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 15836 (D)
p21; Taylor v Minister for Safety & Security &
Another
2006
(3) SA 328
(SCA) para [9]
[21]
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A
[22]
Compare
HL
v M EC Health of the Free State Provincial Government
[2018]
1 All SA 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-Zulu 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], [17]
[25]
Compare
Ex
parte Chenille Corporation of SA (Pty) Ltd and Another: In re
Chenille Industries (Pty) Ltd
1962
(4) SA 459
(T) at 461H;
Rosen
v Bruyns, NO
1973
(1) SA 815
(T) at 818H