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[2014] ZAGPPHC 119
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Cleophas v Mtethwa NO Minister of safety And Security of the Government of South Africa and Others (65755/2011) [2014] ZAGPPHC 119 (17 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
Case
number: 65755/2011
Date:
17 March 2014
In the matter
between:
ZANE OSWALD
CLEOPHAS
..............................................................................................
Plaintiff
And
NTATI MTETHWA NO
MINISTER OF SAFETY AND SECURITY
OF THE GOVERNMENT
OF SOUTH
AFRICA
....................................................
First
Defendant
NHLANHLA SIBUSISI
MKHWANAZI
NO
.......................................................
Second
Defendant
ACTING
COMMISIONER OF THE SOUTH AFRICAN POLICE SERVICE
MAKOBELA
…........................................................................................................
Third
Defendant
SUPERINTENTDENT
FANIE
MALAPO
............................................................
Fourth
Defendant
JUDGMENT
PRETORIUS J.
[1] This matter was
enrolled for trial on 11 March 2014. At the pre-trial meeting by the
two parties on 27 February 2014 it was
agreed that the formal
application for condonation would first be heard and the trial will
be postponed sine die.
[2] The plaintiff
issued summons on 16 November 2011 against the defendants for the
unlawful arrest and detention of the plaintiff
by the third and
fourth defendants, who acted in the scope of their employment of the
first and second defendants. The arrest,
which forms the basis of the
action, took place on 19 November 2008 at Rustenburg. The action had
thus not prescribed when summons
was issued. The notice of intention
to issue summons against the defendants was served on 30 September
2011 and acknowledgement
of receipt of the notice was given.
[3] It must be noted
that a copy of this notice was only annexed to the plaintiff’s
replying affidavit. It is trite law that
an applicant has to make out
his case in the founding affidavit.
[4] Although summons
was issued on 16 November 2011, the defendants only pleaded to the
particulars of claim on 10 May 2012 and
the plea was served on the
plaintiff’s attorney on 14 May 2012. The plea was served after
a notice of bar was served on the
defendants on 8 May 2012. In the
plea the defendants pleaded that the plaintiff had not complied with
the provisions of section
3 of Act 40 of 2002 as a letter of
intention to sue the defendants was not delivered timeously, that is
within 6 months.
[5] The
plaintiff/applicant launched the formal application for condonation
on 6 November 2013 and served it on the defendants/respondents
on 12
November 2013 - 18 months after the plaintiff was alerted to the fact
that he had not complied with the provisions of section
3 of Act 40
of 2002.
[6] Section 3(4) of
the Institution in Legal Proceedings against Certain Organs of State
Act 40 of 2002 provides:
“(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 M/as 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. ”
[7] It is clear that
at the time summons was issued that a cause of action had not been
extinguished by prescription. The plaintiff
now has to show good
cause for his failure to comply with the provisions of the Act and
that the defendants were not unreasonably
prejudiced by this failure.
[8] In MEC for
Education, KZN v Shange
2012 (5) SA 313
(SCA) at paragraph 15 Snyders
JA held:
“The
provisions of s 3(4)(b)(ii) of the Act have been considered in
several judgmentsFor 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;L that 'good cause'
may include a
number of factors that are entirely dependent on the facts of each
casef- and that the prospects of success of the
intended claim play a
significant role. ”
[9] It is so that
the defendants specifically pleaded on 14 May 2012 that:
“The
defendants specifically plead that plaintiff did not comply with
Section 3 of Act 40 of 2002 in that he did not timeously
delivered a
letter within 6 months, alternatively did not deliver a letter at all
as prescribed by the Act”
[10] The application
for condonation was only served on 12 November 2013 - 18 months after
the plaintiff had been alerted to the
fact that he had not complied
with the provisions of the Act. There is no explanation for this
delay by the plaintiff.
[11] The plaintiff
cannot rely on the fact that the two witnesses had passed away prior
to 2012 and therefor they would not have
been able to testify in any
event and therein lies the prejudice to the defendants.
[12] The plaintiff
did not set out any facts on the merits of the action to enable this
court to decide whether he has any prospect
of success in the action.
The plaintiff neglects to set out the facts of the matter that he
will rely on in the action to prove
his claim.
[13] The court
cannot make any decision whether he has any prospect of success in
the action. Even in his replying affidavit he
refrained from setting
out the facts, but referred the court to the letter dated 30
September 2011 which served as a notice of
the plaintiff’s
intention to institute action. The bare facts are set out and once
more these facts did not form part of
the founding affidavit, but was
only attached to the replying affidavit. The plaintiff did not set
out the merits of the action
to be instituted in his founding
affidavit as he was wont to do.
[14] In Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) Heher JA held
that 317 C:
“Strong merits
may mitigate fault; no merits may render mitigation pointless. ”
[15] If this is
taken into consideration this court is left totally in the dark as to
what the prospect of success of the plaintiff
is in the action.
[16] Madjiedt AJA
found in Minister of Agriculture and Land Affairs v CJ Ranee (Pty)
Ltd
2010 (4) SA 109
(SCA) at that the court must be in a position to
assess the merits to balance that factor with the cause of the delay.
Even more
so where a further delay of 18 months has not been
explained at all.
[17] The court takes
note that the plaintiff first relied on a lack of knowledge when
explaining why he had not given notice timeously,
but then later in
his affidavit states that a lack of money caused the notice not to be
sent. There is no affidavit from his erstwhile
attorney, Mr van der
Merwe, to confirm his version. In the letter dated 25 June 2013
addressed to Mr van der Merwe by Rautenbach
Attorneys, the
plaintiff’s present attorneys refer to the action as follows:
“The refer to
the above matter and confirm that we act on behalf of our client, Mr
CLeophas and received instructions that
you acted on his behalf in
the criminal matter as well as the Labour Court matter. We have
issued Summons against the Minister
of Safety and Security for the
unlawful arrest and detention of our client, which matter has been
set down for trial on the 11th
March 2014.”
[18] There is no
indication that Mr van der Merwe had to deal with the civil case at
any stage, therefor the court cannot find that
Mr van der Merwe is to
blame for not sending the letter timeously, as the plaintiff’s
own attorney indicated that they had
issued summons. There was no
reference to Mr van der Merwe having not done his duty by not dealing
with the civil matter. There
was no indication that it had been
expected of Mr van der Merwe to institute a civil claim.
[19] In Mohlomi V
Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) at paragraph 11 Didcott J
held:
“Rules that
limit the time during which litigation may be launched are common in
our legal system as well as many others.
Inordinate delays in
litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought
to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
in the end is it always possible to adjudicate
satisfactorily on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose
testimony can still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent
procrastination and
those harmful consequences of it. They thus serve a purpose to which
no exception in principle can cogently
be taken.” (Court’s
emphasis)
[20] In Ranee case
{Supra) Madjiedt AJA found in paragraph 33:
“In terms of s
3(4) (b) a court may grant condonation if it 'is satisfied'that the
three requirements set out therein have
been met. In practical terms
this means the 'overall impression' made on a court by the facts set
out by the parties. ”
And at paragraph 35:
“In general
terms the interests of justice play an important role in condonation
applicationsAn applicant for condonation
is required to set out fully
the explanation for the delay; the explanation must cover the entire
period of the delay and must
be reasonable.” (Court’s
emphasis)
[21] The plaintiff’s
argument that there will be no prejudice to the defendants cannot be
considered as true. The docket had
been destroyed, albeit already in
2009 and the third and fourth defendants had passed away in 2011. If
a notice had been sent timeously,
that is within six months as
required, the docket and court records would not have been destroyed;
statements would or could have
been obtained from the third and
fourth defendants.
[22] In the Ranee
case {supra) it was decided that condonation had to be sought as soon
as the concerned party realises that it
is required - the plaintiff
waited 18 months before launching an application for condonation.
[23] This time
period, which has not been explained, can be in no instance be
regarded as reasonable. The interest of justice cannot
be served if a
plaintiff, who is out if time in any event, waits a further 18 months
to launch the condonation application. This
lack of urgency is
exacerbated by the plaintiff giving no explanation for waiting 18
months to launch this application.
[24] The interest of
justice cuts both ways and the court cannot decide in the plaintiff’s
favour, without considering the
prejudice the defendants will suffer.
It is clear that the defendants will suffer huge
prejudice as they
will not be able to defend a claim under this circumstance
[25] I have
considered all the facts and come to the conclusion, that due to the
reasons set out above, the plaintiff should not
be granted
condonation in terms of section 3(4) of Act 40 of 2002.
[26] I make the
following order:
1. The application
for condonation in terms of paragraph 1 and 2 of the notice of motion
is dismissed with costs.
Judge C Pretorius
Case number :
65755/2011
Heard on : 10
March 2014
For the Applicant
/ Plaintiff : Adv J Holland-Muter
Instructed by :
Rautenbach
For the
Respondent : Adv M Barnard
Instructed by :
State Attorney
Date of
Judgment : 17 March 2014