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[2015] ZAGPPHC 156
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Dlamini v Minister of Safety and Security and Others (18999/2012) [2015] ZAGPPHC 156 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 18999/2012
DATE:
19 MARCH 2015
IN
THE MATTER BETWEEN
ALFRED
RAY
DLAMINI
..........................................................................................
Plaintiff/Applicant
and
MINISTER
OF SAFETY &
SECURITY
.........................................................
1
st
Defendant/Respondent
MINISTR
OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT
............................................................................................
2
nd
Defendant/Respondent
NATIONAL
PROSECUTING AUTHORITY
OF
SOUTH
AFRICA
.......................................................................................
3
rd
Defendant/Respondent
JUDGMENT
LEGODI,
J
[1]
This is an application in terms of section 3(4) of the Legal
Proceedings Against Certain Organs of the State Act No 40 of 2002.
The relevant part of the section reads as follows:
(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 had 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”.
[2]
In terms of subsection (1), no legal proceedings for the recovery of
a debt may be instituted against an organ of state, unless
the
creditor has given the organ of state in question notice in writing
of his/her or its intention to institute the legal proceedings
in
question or the organ of state in question has consented in writing
to the institution of the legal proceedings without such
a notice or
upon receipt of a notice which does not comply with all statutory
requirements. In terms of subsection (2), a
notice must be
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).
[3]
The applicant instituted action proceedings against the Minister of
Safety and Security, Minister of Justice and Constitutional
Development, and National Prosecuting Authority of South Africa.
They are the first, second and third respondents respectively.
He claims a total sum of R1 800 000 against the
respondents.
[4]
His claim is based on the unlawful arrest, unlawful detention,
malicious prosecution and assault. The application for
condonation is for the late filing of section 4(1) notice read with
subsection 4(2). The application is opposed by the
respondents.
The grounds for the opposition are varied.
The important grounds of opposition are that the claims have
prescribed, that
there are no prospects of success on merits and
lastly, that no cause exists for the failure by the applicant to give
notice in
terms of the Act.
[5]
As a background, on the 8 October 2007, the applicant was arrested.
On the 10 October 2007, he appeared in court on three charges
of
robbery with aggravating circumstances, one count of attempted rape,
unlawful possession of fire arm and ammunition. On
the 22
February 2010 he was found not guilty and discharged in terms of
section 174 of the Criminal Procedure Act, on counts 3,
5 and 6, that
is, attempted rape, unlawful possession of fire arm and ammunition
respectively. On the 17 April 2011 he was
acquitted of the
remaining charges of robbery with aggravating circumstances.
[6]
During or about November 2011, he consulted a lawyer. He was
advised that he can sue the police for unlawful arrest and
detention. On the 30 November 2011 a notice in terms of section
3(1) was issued against the police, first respondent.
In the
notice, the applicant confined himself to the unlawful arrest and
detention. On the 17 April 2012 summons were then
served on the
police, Minister of Safety and Security. Later, an advocate
advised that notice in terms of section 3(1) be
issued against the
second respondent, the Minister of Justice and Constitutional
Development. Summons was then amended.
On the 5 September
2012, another notice in terms of section 3(1) was served on the third
respondent, the National Prosecuting Authority.
The summons
were further amended and delivered. The respondents’ plea
was further delivered on the 24 July 2013.
In the plea, the
respondents denied allegations against them and also pleaded that the
notices were not served in terms of the
provisions of the Act.
[7]
In the particulars of claim, the plaintiff’s cause of action
against the first respondent is pleaded as unlawful arrest
and
detention or alternatively, malicious arrest and detention. In
paragraph 4 thereof, a further cause of action is pleaded,
that is,
assault. Then in paragraph 8 of the particulars of claim,
malicious prosecution is pleaded, alleging that the second
and or the
third respondents and its staff members or agents persisted
unreasonably in opposing the bail and did not notify the
prosecution
that they did not have enough evidence to prosecute the applicant.
In the alternative, is pleaded that, the second
and the third
respondents, namely the prosecutor and or its agents or staff
members, persisted in its prosecution knowing that
it did not have
evidence to prosecute the applicant.
PRESCRIPTION
AND FAILURE TO GIVE A NOTICE
[8]
Coming back to the requirements for condonation under section 3(4),
prescription is one other requirement which the court must
consider.
If it is satisfied that the debt has not extinguished by prescription
and other two requirements are met, condonation
may be granted.
Starting with the claim against the police, or first respondent, the
debt arose on the 10 October 2007 when
the applicant was reminded in
custody by court of law. That is, the alleged unlawful arrest and
detention by the police from the
8 April 2007 to 10 October 2007 when
he first appeared in court. Whilst the applicant sought to
suggest that he was detained
for more than 48 hours before taken to
court, this was not persisted during argument. The summons in
this case was served
on the 17 April 2012, long time after the expiry
of three years since the arrest and detention of the applicant by the
police.
[9]
On behalf of the applicant, it was suggested that the applicant knew
only round about November 2011, that is, after acquittal
on all the
charges, that he has a claim against the police and the other
respondents. The explanation for failure to give
statutory
notice timeously should be seen in context. The applicant was
at all times upon his arrest legally represented.
Advice could
long have been given about unlawful arrest and detention if there was
any.
[10]
The statement in the founding affidavit: ‘
In November 2011,
I consulted with my legal representative regarding advice on how to
pursue this matter I was advised that on any
facts I have a prospect
of success against the first respondent and that I should pursue a
claim against the first respondent
’, without more, in my
view, is not satisfactory and therefore, prescription is not averted.
PROSPECT
OF SUCCESS AGAINST THE FIRST RESPONDENT (THE POLICE)
[11]
Whilst section 3(4)(b) in subparagraph (i) thereof requires the court
to be satisfied that the debt has not been extinguished
by
prescription, the authorities are not confined only to prescription,
but also to the merits as a whole. In
MEC FOR EDUCATION, KZN
v SHANGE
2012 (5) SA 313
(SCA)
at par 15,
Snyders JA
dealing with the requirement and sub-paragraph (b)(ii) stated:
“
The
provisions of s 3 (4) (b) (ii) of the Act have been considered in
several judgments. For present purposes, it is not necessary
to
repeat all of the relevant considerations, but only to state that the
court is to exercise a wide discretion, that ‘good
cause’
may include a number of factors that are entirely dependent on the
fact of each case, and
that the prospect, of success of the
intended claim play a significant role”
.
The
underlining is my emphasis. In
Madunda v Minister of Safety
and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at 317 (C), Heher JA stated:
“
Strong
merits may mitigate fault, no merits may render mitigation
pointless”.
[12]
The applicant was arrested for both schedule 1 and 6 offences.
The police were therefore entitled to arrest without a
warrant, in
terms of section 40 of the Criminal Procedure Act. The first
respondent or the police without more cannot be
held to be acting
unlawfully when arresting without a warrant for offences falling
under schedule1. Further, the remand
of the applicant was
authorized by court of law and the first respondent plays no role in
that regard. Secondly, once a matter
is brought to court, the
prosecution takes charge. They make the decisions whether or
not to oppose bail based on what is
in the docket. The other
difficulty with regard to the claim against the first respondent is
that the applicant placed no facts
before me dealing with the merits
of the case.
[13]
I am not satisfied that the applicant’s claim against the first
respondent based on the unlawful arrest and detention
has not been
extinguished by prescription, neither is there evidence showing the
prospects of success on the merits This then brings
me to the other
claims:
ASSAULT
[14]
In paragraph 8.2 of the founding affidavit, the applicant alluded to
the fact that during his arrest he was assaulted by the
members of
the first respondent in an effort to confess to offences he was not
guilty of. That would have been on the 8 October
2007. In
this regard, I am not satisfied that the applicant’s claim has
not been extinguished by prescription.
In addition, there is no
explanation as to why the statutory notice was not given. I now
turn to deal with the other claims.
MALICIOUS
PROSECUTION
[15]
In paragraph 7 of this judgment, I dealt with how the cause of action
for malicious prosecution is couched. It is directed
mainly at
the second and third respondents. I fail to understand how the
second respondent can be held liable for malicious
prosecution. In
paragraph 2.1 of the particulars of claim, the second respondent is
said to be sued and cited in his official capacity.
But the
Minister plays no role in the prosecution of cases. That is a
matter within the sole domain of the third respondent.
Therefore, if there is a case for malicious prosecution, that should
be put at the door of the third respondent.
[16]
This brings me to deal with the second requirement in terms of
subsection (4) (b) (ii) of section 3. That is, whether good
cause has
been shown to exist for the failure by the applicant to give a
statutory notice. I must immediately say, the prescription
does
not find application in the claim based on malicious prosecution.
On the 22 February 2010 the applicant was discharged
in terms of
section 174 of Act 51 of 1977 on the attempted rape charge, unlawful
possession of fire arm and ammunitions charges.
He was also
discharged on the remaining charges of robbery with aggravating
circumstances on the 17 August 2011. On the 5 September
2012
statutory notice was issued against the third respondent. on the On
the 5 September 2012 he was also discharged
on the remaining charges
of robbery with aggravating circumstances. On the 5 September 2012
statutory notice was issued against
the third respondent. By that
time, the six months period had long lapsed since the applicant was
acquitted and since the applicant
became aware that he could
institute a claim against the third respondent. The explanation
for failure to give statutory
notice timeously is explained in the
founding affidavit as follows:
“
23.6
The third respondent was served with the notice on the 05
th
September 2012, about seven months after the expiry of the six months
period. This was also because, upon further consultations
with
the counsel, my attorney was further advised that he also needs to
add the third respondent as a party to the proceedings.
My
attorney then served the said notice and a notice to amend summons
and particulars of claim.
23.7
The non-compliance with section 3(2) with regards to the notices
served on the second and third respondents cannot
be attributed to me
but my attorney. On merits my claim is good and bona fide
because the respondents unlawfully arrested,
detained and malicious
prosecuted me.”
[17]
The applicant seeks to blame every failure to comply with the
statutory notices on his lawyers. On his own version, he
consulted a lawyer in November 2011 after having obtained relevant
information from the police. He issued notice in terms
of
section 3(1) for unlawful arrest and detention against the first
respondent only. That was done on the 30 November 2011.
On the 20 June 2012 statutory notice was served against the second
respondent allegedly after his attorney consulted with an advocate.
On the 5 September 2012 further statutory notice was issued against
the third respondent. It is not an excuse to blame the attorney
for
non-compliance with statutory notice. There will never be a
finality to matters if every time an attorney is blamed for
the delay
the requirement in subparagraph (b) (ii) of section 3 (4) (b),
is met. I am not satisfied with the explanation
for failure to
give statutory notice timeously.
[18]
However, whilst I am not satisfied with the explanation for failure
to give notice to the third respondent in terms of section
3(1), I
still need to look at the merits of the case. The applicant was
not only acquitted on all the charges, but in respect
of the three
charges he was discharged at the end of the state case, and thus
suggesting that there was no evidence at the end
of the state case
upon which a reasonable person might convict. I am mindful of
the fact that merits in the present application
have not been spelt
out. But the discharge of the applicant on all the charges in
the circumstances has a bearing on the
prospects of success on
merits.
[19]
The third respondent did not argue that it would be prejudiced should
condonation be granted. I am therefore satisfied
that the
granting of condonation for the late filing of section 3(1) based on
malicious prosecution against the third respondent
is justified.
[20]
Consequently an order is hereby made as follows:
20.1
The application for condonation for the late giving of notice in
terms of section 3(1) against the first respondent is hereby
refused;
20.2
The application for the late giving of notice in terms of section
3(1) of the Act against the third respondent for malicious
prosecution is hereby granted;
20.3
The applicant is hereby ordered to pay the costs of the application.
M
F LEGODI
JUDGE
OF THE HIGH COURT
FOR
THE PLAINTIFF/APPLICANT: ADV T MORETLWE
INSTRUCTED
BY: MAHLANGU MASHOKO ATTORNEYS
262
Madiba Street
502
Karling Building
PRETORIA
TEL:
012 323 5268
REF:
CIV/149/MS
FOR
THE RESPONDENTS: ADV M BARNARD
INSTRUCTED
BY: THE STATE ATTORNEY
Salu
Building
255
Francis Baard Street
PRETORIA
0002
TEL:
012 309 1535
REF:
SYBRAND BOTES 1048/12/Z60
Judgment
reserved on: 03 March 2015
Judgment
handed down on: 19 March 2015