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[2015] ZAGPPHC 1141
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Miselo v Minister of Safety and Security and Others (50672/14) [2015] ZAGPPHC 1141 (20 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 50672/14
20/2/2015
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
SABELO
MISELO APPLICANT
and
MINISTER
OF SAFETY AND
SECURITY 1
ST
RESPONDENT
MINISTER
OF
JUSTICE 2
ND
RESPONDENT
DEON
ACKERMAN 3
RD
RESPONDENT
Coram:
HUGHES J
JUDGMENT
Heard
on: 10 February 2015
Delivered
on: 20 February 2015
HUGHES
J
[1]
In this application the applicant seeks condonation for the late
notification in terms of s 3(1) (a) of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 (the Act).
[2]
On 19 February 2012 the applicant was arrested, on a charge of rape,
he was incarcerated until he was acquitted on 29 July 2013.
After
being release he was unable to secure employment and funds to
instruct or secure an attorney to pursue his case of unlawful
arrest
and detention against the respondents.
[3]
Sometime in June 2014 he managed to obtained funds and he approached
an attorney to assist him with his claim. It was at this
stage that
his attorney advised him of the requisite notification that had to be
given within six months from the date of the cause
of action, if one
intended to institute proceedings against the respondents.
[4]
The applicant in addressing the issue, of the delay in notifying the
organ of state of his intention, argues as a layman he
was not aware
that a notification was necessary until he consulted with his
attorney and he could not institute his claim earlier
as he did not
have funds to instruct an attorney. He further argues that whilst he
was incarcerated he could not pursue his matter
as he had no access
to an attorney in prison.
[5]
The respondents argue that the cause of action of the applicant arose
on the date that he was arrested being 19 February 2012,
and not 29
July 2014 being the date on which he was acquittal and released, as
argued by the applicant.
[6]
The respondents argued further that the applicant failed to provide
an adequate explanation for the period that he was incarcerated.
He
also failed to provide an explanation for the period after his
release up until he consulted with his attorney. The reasons
he has
advanced are not adequate because the public at large are layperson
who do not have funds to pursue claims but they find
ways to do so.
What is striking in this case is that the does not even explain what
steps he took to get his case on the go and
whether he acquainted
himself with the procedures that he had to follow.
[7]
I set out below s 3 of the Act for easy reference :
“
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
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.
(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 the
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."
[8]
The respondents are adamant that the cause of action arose on 19
February 2012 on the arrest of the applicant. The applicant
contends
otherwise, that is, that the date on which the cause of action arose
was 29 July 2013; being the date he was acquitted
and released. In
the applicant's replying affidavit, paragraph 8.3, he sets explains
that he could not give notice to the respondents
after his arrest as
he was incarcerated and
"his failure to give timorously
notice was not at all due to his negligence or failure to act at
all".
[9]
The question to be answered is which of the dates advanced, 19
February 2012 or 29 July 2013, is the date that one calculates
from
whence the six months period commences.
[10]
The answer is found in s3 (2) (a) and s3 (3) (a), according to s3 (2)
(a) the six months notification commences
"from the date on
which the debt becomes due".
S
3(3) (a) spells out exactly when a debt in terms of s3 (2) (a)
becomes operative or due:
s3
(3) (a) states that "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 it
from acquiring such knowledge;
..."
[11]
In
Drennan Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998
(3)
SA 200
(SCA) at 209 Olivier JA
said the following:
"Section
12(3) of the Act provides that
a
creditor shall be deemed to
have the required knowledge if he could have acquired it by
exercising reasonable care. In my view the
requirement 'exercising
reasonable care' requires diligence not only in the ascertainment of
the facts underlying the debt but
also in relation to the evaluation
and significance of those facts. This means that the creditor is
deemed to have the requite
knowledge if
a
reasonable person in
his position would have deduced the identity of the debtor and the
facts from which the debt arises."
[12]
Taking the above into account together with s 3 (3) (a)
supra
my
view is that the applicant would have had to have knowledge of the
identity of the organ of state responsible for the debt as
at the
time of his arrest and incarceration. Further, as he alleges that he
was unlawfully arrested and detained, he would have
to have knowledge
of the facts upon which the debt owed to him arose. This would have
been within his knowledge at the time of
his arrest, as he contends
he did not commit the offence for which he was charged. Even if the
applicant did not have this knowledge
at the time of his arrest, he
would have attained this knowledge had he exercised reasonable care
to obtain it, this would have
entailed a simple exercise of enquiring
from those who arrested and incarcerated him. I therefor agree with
the respondent that
the debt became due on 19 February 2012.
[13]
The respondents places reliance on the applicant's failure to notify
the relevant organ of state within the prescribed six
months and as a
result the applicant seeks condonation for the late notification, in
the circumstances I have a discretion to grant
condonation subject to
the criteria in s3 (4) (b) of the Act being met:
(i) That the debt has not prescribed;
(ii) That good cause exist for the
failure by the creditor; and
(iii) That the organ of state is not
unreasonably prejudiced by the failure.
[14]
It is common cause that the debt has not prescribed.
[15]
The applicant states at paragraph 13 of his replying affidavit
"...that it is clear from annexure "SM1" to this
founding affidavit
that he acquired the relevant knowledge
that he had to give notice to the Respondent during June 2014.
"
The document SM1 is the notification dated 10 June 2014 which was
served upon the Minister of Police on 12 June 2014. The applicant
in
the founding affidavit states that
"As
a
layman I was
not aware of the time limits as required by the Act and due to the
long period detained I was also out of pocket to
consult
a
lawyer
immediately."
[16]
What emerges from the applicant is that as at 29 July 2013, upon his
acquittal and release from incarceration, he was not aware
of the
requisite six months' notice period. He submits that he only became
aware of this when he consulted with his attorney in
June 2014.
Further, he could not have notified the organ of state earlier as he
had no funds to consult an attorney before June
2014.
[17]
Does good cause exists for the applicant's failure to send the
notification timeously and was it to the prejudice of the debtor?
The
aforesaid was addressed fully in
Madinda v Minister of Safety and
Security
[2008] ZASCA 34
;
2008 (4) SA 312
SCA at 316E
G where Heher JA said
the following:
"'Good
cause' looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting
the
proper administration of justice. In any given factual complex it may
be that only some of many such possible factors become
relevant.
These may include prospects of success in the proposed action, the
reasons for the delay, 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."
And at
317H-31BD
"One other factor in
connection with 'good cause' in s3 (4) (b) (ii) is this: it is linked
to the failure to act timeously.
Therefore subsequent delay by the
applicant, for example in bringing his application for condonation,
will ordinarily not fall
within its terms. Whether
a
proper
explanation is furnished for delays that did not contribute to the
failure is part of the exercise of the discretion to condone
in terms
of s3 (4), but it is not, in the statutory context, an element of
'good cause'. ...Absence of prejudice has often been
regarded
as an element of good cause in the context of earlier legislation. It
was, no doubt, also an element in terms of s57 of
Act 68 of 1995 (of
the South African Police Services Act). But this Act the legislature
has deemed it appropriate to treat absence
of
unreasonable
prejudice as
a
specific factor of which an applicant must
satisfy the court. The identification of separate requirements good
cause and absence
of unreasonable prejudice may be intended to
emphasise the need to give due weight to both the individual's right
to access to
justice and the protection of state interest in
receiving timeous and adequate notice. The structure of s3 (4) is now
such that
the court must be satisfied that all three requirements
have been met."
[18]
I have analysed the facts of this case in light of the guidance set
out in the
Madinda v Minister of Safety and Security
supra.
In establishing whether 'good cause' exist in the current case I
note that the applicant's case is premised on his unlawful arrest
and
detention, for allegedly raping a minor, for which he claims damages.
The applicant relies on the fact that as at 21 May 2012
the
respondents were in possession of DNA results taken from the minor
which reads as follows:
"No
male DNA was obtained from the exhibit 1007AB3126XX."
He
states that at this stage the respondents should have withdrawn the
charges against him, as his DNA was not found in the minor
child. He
was only acquitted of the charge on 29 July 2013 and as such remained
in custody even after the DNA result were known
to the respondents.
This constitutes the merits of the case. However, this is but one
aspect that needs to be considered when determining
whether 'good
cause' exists or not.
[19]
I am also mindful of the fact that strong merits may mitigate fault
whilst no merits may render mitigation pointless. In these
circumstances as soon as the applicant became aware of the DNA
results he had strong merit on his side against the respondents.
In
my view he was armed with the necessary proof to advance his claim
and should have done so as soon as was reasonably possible.
[20]
Even though he advances an explanation for the delay in notifying the
respondents, of his incarcerated and not having funds
to consult an
attorney , in both his affidavits he does not set out what steps he
took to overcome the dilemma he was in to try
and advance his case.
[21]
Say I afford him the benefit of the doubt, that he was unable to
secure any form of consultation with an attorney, be it legal
aid or
the like, I have nothing before me that indicates that he wanted or
intended to pursue his claim whilst he was incarcerated
and
immediately upon his release.
[22]
Turning to deal with his release, hereto I am not placed with facts
to consider what steps he took to secure funds, if any,
or what steps
he took to pursue his case. From the facts before me the applicant
shows no urgency at all to pursue his case against
the respondents.
[23]
The issue of lack of funds as argued by the respondents counsel has
been dealt with by the constitutional court in the matter
of
Van
Wyk v Unitas Hospital
[2007] ZACC 24
;
2008
(2)
SA 472
CC at 477F-G,
where
the court held that lack of funds was not a compelling reason to
nullify delay in the institution of legal proceedings and
the
furnishing of an explanation as to how one overcame the dilemma was
vital for a court to consider in a cases of condonation.
[24]
The explanation of the applicant for the delay was to my mind lacking
in substances and superficial to say the least. The applicant
has
failed to set out in detail acceptable reasons and account for the
entire period for the inordinate delay in instituting his
claim and
notifying the respondents.
[25]
As was stated in
Madinda v Minister of Safety and Security at
317C-E,
there are two elements in s3 (4) that come to play; the
applicants rights to have the merits of his case ventilated in court
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'.
The debt having arose on 19 February 2012 and the
applicant only giving notice to the respondents on 10 June 2014, a
period plus
minus 2 years and 4 months had already lapsed. The matter
has not prescribed as yet and thus is still alive. The respondents
contend
that they are prejudiced in the prosecution of thereof, I am
not sure what this means, but in my view that on its own cannot
amount
to prejudice, as the respondents should have anticipated some
sort of action from the applicant as his claim had not prescribed.
[26]
It is evident from the above analysis that not all three requirements
in terms of s3 (4) have been met. In my view, for the
reasons set out
above, the applicant has failed to give a full, reasonable and cogent
explanation for the entire period and delay
in notifying the
respondents.
[27]
Regarding the prospects of success I have not been provided with the
entire docket to examine and consider this aspect. This
is yet again
the tardiness with which the applicant has handled his claim.
[28]
For the reasons set out above it would not be in the interest of
justice to grant the applicant condonation. I am also of the
view
that this is a case where no costs order would be the appropriate
order.
[29]
In the result the following order is made:
[29.1.] The application to condone the
late service of the notice contemplated in s3 (1) (a) of the
Institution of Legal Proceedings
against Certain Organs of State Act
40 of 2002 within the period laid down in s3 (2) (a) is dismissed.
______________________
W.
Hughes
Judge
of the High Court
Attorney
for the Applicant:
CREMER
& STRYDOM ATT
1151
Ben Swart Street
PRETORIA
Tel:
012 333 3257
Ref:
J STRYDOM/Jackie/2582
Attorney
for the Respondents:
THE
STATE ATTORNEY PRETORIA
Cnr
FRANCES BAARD & THABO SEHUME STREETS
PRETORIA
Tel:
012 309 1646
Ref:
4812/2014/Z79/js
Enq:
N RAJKOOMAR