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[2015] ZAGPPHC 333
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Oletsitse v Minister of Police (29788/2011) [2015] ZAGPPHC 333 (6 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC OF SOUTH
AFRICA
Case
number:29788/2011
Date: 6 May 2015
Not reportable
Not of interest to
other judges
In the matter
between:
TEBOBO
PATRICK
OLETSITSE
..................................................................................
Plaintiff
/ Applicant
and
MINISTER
OF
POLICE
.............................................................................................
Defendant
/ Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1] The applicant
prays for the following relief:
“
1.
That a declaratory order be made, declaring that the Plaintiff /
Applicant has complied with the requirements of Section 3 and
4 of
the Constitution
(sic)
of Legal
Proceedings against Certain Organs of State Act, Act 40 of 2002;
2.
In the event of the above order not being made, the Plaintiff /
Applicant applies for an order that the late delivery of the
notice
as contemplated in section 3 of the Institution of Constitution
(sic)
of Legal
Proceedings against Certain Organs of State Act, Act 40 of 2002 be
condoned.
3.
That the Defendant
/
Respondent be
ordered to pay the costs of this application in the event of
opposition. ”
FACTUAL BACK
GROUND
[2] On 19 May 2008,
the applicant was arrested without a warrant by members of the South
African Police Service (SAPS). The applicant
alleges that the said
members had no reasonable or probable cause to do so and had
accordingly instituted a claim for damages against
the defendant on
the basis that he is vicariously liable for the actions of members of
SAPS, when such members act within the course
and scope of their
duties as police officers.
[3] Subsequent to
his arrest, the applicant was detained for a period of 10 days. The
applicant alleges that the detention was also
unlawful and damages
are claimed in this respect.
[4] On 17 May 2011,
the charges against the applicant were withdrawn.
[5] The applicant
sought legal advice after the charges were withdrawn and subsequently
appointed his attorneys of record to pursue
the claim against the
respondent on his behalf.
[6] In pursuance of
their mandate, the applicant’s attorneys’ issued summons
against the respondent, which summons was
served on the respondent on
26 May 2011.
[7] The respondent
delivered a notice of intention to defend the action and filed two
special pleas, to wit one of prescription
and one of non-compliance
with the provisions of section 3 of the Institution of Legal
Proceedings against Certain Organs of State
Act, 40 of 2002 (“the
Act”).
[8] Upon receipt of
the respondent’s plea, the applicant’s attorneys realised
that a notice in terms of the Act was
not served. As a consequence
and on 15 November 2011 attorneys Van Zyl le Roux Inc addressed a
letter to the State Attorney explaining
the oversight and requesting
the State Attorney to accept the letter as the requisite notice in
terms of the Act. The State Attorney
was further requested to obtain
the respondent’s permission to condone the late service of the
notice. No such instruction
was received.
[9] The matter was
set down for trial in October 2012.
[10] At a pre-trial
conference held on 13 September 2012 it was agreed between the
parties that the two special pleas will be dealt
with first.
[11]
It was recorded at the pre-trial conference that the respective
versions of the parties
“
appear
from the particulars of claim, the plea and the docket that will form
part of the court bundle. ”
[12] At the trial,
the respondent, despite the agreement between the parties, insisted
that a formal application for condonation,
for the failure to comply
with the provisions of the Act, should be lodged. The presiding judge
agreed and only the issue of prescription
was dealt with at the
trial.
[13] The
respondent’s plea of prescription was partially upheld and the
court ruled that whereas the applicant’s claim
for damages
prior to 26 May 2008 had prescribed, his claim after the aforesaid
date had not.
[14] The present
application was only launched during June 2014.
LEGISLATIVE
FRAMEWORK
[15] The relief
claimed in the alternative prayer is based on the provisions of
section 3(4) of the Act, which 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 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.”
(own
emphasis)
ISSUES IN DISPUTE
[16] The issue
pertaining to presciption has already been dealt with at the trial
and requires no further attention.
[17] The respondent
does, however, deny that:
(i) the applicant
has shown good cause for his failure
(ii) it has
been unreasonably prejudiced by the applicant’s failure.
(iii) condonation
should be granted to the applicant for this failure to Comply with
the Act.
GOOD CAUSE
[18] In determining
whether good cause exists to condone the failure of a creditor to
give the requisite notice, the court has to
have regard to the
reasons for the delay and the prospects of the applicant’s
claim.
Reasons for delay
[19] The applicant’s
explanation for the delay reads as follows:
“
I
at all relevant times honestly believed that I could only act against
the defendant once the case against me had been disposed
of. I
respectfully submit that the delay in the delivery of the said notice
on 15 September 2011
(sic)
was due to my
initial incorrect belief that the prosecution against me had to be
completed. I respectfully submit that the delay
was not as a result
of a deliberate action or intention to prejudice the defendant. I did
not have any knowledge of the legal process
and I was not aware that
a notice had to be submitted within 6 months after the claim had
arisen. ”
[20] The applicant
was unaware of the fact that notice, in terms of the Act, should be
given prior to the institution of action.
He was, furthermore,
unaware that the six month period, within which the requisite notice
had to be served, commenced on the dates
he was arrested and
released. Once the criminal charges against the applicant were
withdrawn, he, however, took all reasonable
steps to pursue a claim
against the respondent.
[21] The firm of
attorneys appointed by the applicant, did not serve the requisite
notice without delay. Due to an apparent misunderstanding
between the
respective attorneys firms, the notice was only served on 15 November
2011.
[22] I am satisfied
that the delay from 29 November 2008, being six months after the
applicant was released to May 2011, the date
on which he instructed
his attorneys, was satisfactory explained by the applicant.
[23] The reason for
the delay from May 2011 to 15 November 2011 is explained by his
attorneys in their letter dated 15 November
2011. I am of the view
that the applicant is not to blame for the misunderstanding between
the attorneys firms. It is clear from
his actions that he, at all
relevant times, wanted to pursue a claim for damages against the
respondent.
Prospects of
success
[24]
In respect of the prospects of success, the applicant, a police
officer, avers that he was arrested on a charge of corruption
alternatively
fraud
further
alternatively
theft.
The applicant states that the police docket contains 15 affidavits
and that he is not implicated in any of these affidavits.
According
to the applicant, his claim has good prospects of success.
[25] The respondent
denies this allegation, but, notwithstanding an invitation to do so,
failed to refer to any affidavit that implicates
the applicant in the
charges that were preferred against him.
[26] I am satisfied
on the papers that the applicant’s claim has good prospects of
success.
UNREASONABLE
PREJUDICE
[27] The applicant
alleges that the respondent had until at least 17 May 2011, the date
on which the charges against him were withdrawn,
been investigating
the matter. Furthermore, the docket pertaining to the investigation
had been discovered and as a consequence,
the respondent has not been
unreasonably prejudiced by the applicant’s failure to give
timeous notice of the claim.
[28]
The respondent avers that it had been unreasonably prejudiced due to
the fact that
“
some
of the police who investigated the offences are no longer in the
service, and cannot be traced.”
No
names are mentioned nor are the affidavits of these police officials
identified. As a consequence and due to the vagueness of
the
allegation, I am not in a position to determine the relevance of
their evidence in respect of the applicant’s claim.
[29]
The respondent furthermore state that
“
Due
to the inordinate delay, some of the contents of the docket had
disappeared from the original docket.”
Once
again no facts underlying this broad statement are provided.
[30] Almost a month
after the charges against the applicant were withdrawn, action was
instituted. It is disconcerting that documents
were removed from the
docket in such a short space of time. Be that as it may, the
prejudice suffered by the respondent due to
the fact that documents
were removed from a docket that is in its custody, is definitely not
attributable to the applicant.
[31]
Having had regard to the allegations
supra,
I
am satisfied that the respondent has not been unreasonable prejudiced
due to
the
applicant’s
delay.
CONDONATION
[32] Mr Phaswane,
counsel for the respondent, urged me to find that condonation should
not be granted due to the inordinate delay
in the launching of this
application. It was clear at the trial in October 2012 that an
application for condonation must be brought.
The applicant, however,
only served this application on 26 June 2014, one year and eight
months later.
[33] It is correct
that the question of condonation, should be adjudicated separately
from the delay explanation required in terms
of section (3) (4) (b)
(ii) of the Act.
[34]
This approach was confirmed by the Supreme Court of Appeal in
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
at para
[20]
, to wit:
“
It
is also true that, although her attorney received the rejection of
the notice in the middle of October 2005, the appellant did
not
commence proceedings for condonation until July 2006. As I have
earlier pointed out, unexplained delay which relates to the
period
after notice was
de
facto
given will
ordinarily relate not to the establishment of good cause but to
condonation. The learned judge erred in his approach
in this regard.
Nor do I think that such delay can fairly be ascribed to disinterest
on the applicant’s part. ”
[35] In other words,
even if I am satisfied that the applicant has complied with the
requirements contained in section 3(4) (b),
the application may still
be dismissed due to an inordinate delay in the launching of the
application.
[36] The applicant
does not deal with this delay. Mr Rossouw SC, counsel for the
applicant, submitted that the delay was most probably
due the failure
by the applicant’s attorneys to launch the application
timeously. The applicant’s attorney did not
file an affidavit
explaining the delay of some 20 months.
[37]
I am mindful of the fact that each case must be adjudicated on its
own facts. Although the delay in launching the condonation
application in the
Madinda
case
was only nine months, I am, however, of the view that the facts
herein are to such an extent similar to those in the
Madinda
case,
that the following extract at 323 E - G, finds application herein:
“
It
was the delay thereafter until July 2006 which he should have
explained but he did not. Applications for condonation should in
general be brought as soon after the default as possible. Thereby
possible further prejudice to the other party and misconception
as to
the intentions and bona fides of the applicant can be lessened. A
delay in making the application should be fully explained.
The
failure to do so may adversely affect condonation or it may merely be
a reason to censure the applicant or his or her legal
advisers
without lessening the force of the application. I think that the
latter is the correct attitude to take in the present
matter in
relation to the evaluation of whether condonation should be granted.
Under the present statutory dispensation there is
no time limitation
on the institution of action and the appellant had until September
2007 (where her claim would have prescribed)
to issue summons. The
matter was clearly very much alive during the first half of 2006 and
the state had no reason to think otherwise.
Nor has the respondent
suggested that it was prejudice or misled by the additional delay. ”
[38] I respectfully
agree. The respondent knew from at least May 2011 that the applicant
intends pursuing a claim for damages. The
matter was on the roll for
trial in October 2012. Although the delay in launching the
application is lengthy and not explained,
the respondent could have
had no doubt that the applicant is adamant in pursuing his claim.
COSTS
[39] The respondent
was justified in opposing the application for condonation. The
lengthy delay in launching the application and
the fact that the
applicant seeks an indulgence justifies a cost order in favour of the
respondent.
ORDER
[40] The applicant
did not make out a case for an order in terms of prayer 1 of the
notice of motion.
[41] I am satisfied
that the applicant has made out a case for condonation and such order
will follow.
I make the
following order:
1. The late delivery
by the applicant of the notice contemplated in section 3 of the
Institution of Legal Proceedings against Certain
Organs of State, 40
of 2002, is condoned.
2. The applicant is
ordered to pay the costs of the application.
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
VAN ZYL LE ROUX
INC
ATTORNEYS FOR THE
PLAINTIFF
1
st
FLOOR, BLOCK 3
CNR OF STEENBOK
& ELEPHANT STREETS
MONUMENT OFFICE PARK
PRETORIA
REF: J W
JOUBERT/ad/MAT58780
(012) 309 1635
LEGAL
REPRESENTATIVE FOR PLAINTIFF
:
Advocate A B ROUSSOUW SC
THE STATE
ATTORNEY
316 ALU BUILDING,
CNR THABO SEHUME,
FRANCIS BAARD STREET
GROUND FLOOR
PRIVATE BAG X91
PRETORIA
0001
(012) 303 7518/ 083
259 2547
ENQ: M T Matubatuba
LEGAL
REPRESENTATIVE FOR DEFENDANT:
Advocate
M S PHASWANE