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[2014] ZAGPPHC 327
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Cau v Minister of Police and Others (32962/2011) [2014] ZAGPPHC 327 (23 May 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER:
32962/2011
DATE: 23 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
C.P.
CAU
.......................................................................................................................................
PLAINTIFF
And
THE MINISTER OF
POLICE
...................................................................................
FIRST
DEFENDANT
COMMISSIONER OF
POLICE
...........................................................................
SECOND
DEFENDANT
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
..........................................
THIRD
DEFENDANT
DEVELOPMENT
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS
...............................
FOURTH
DEFENDANT
JUDGMENT
MAVUNDLA J;
[1 ] This is an
opposed application for condonation of the late delivery of the
applicant’s notice of intended proceedings
against the
respondents as required in terms of s3 of the Institution of Legal
Proceedings against certain Organs of State Act
40 of 2002.
[2] It is common
cause that the applicant was arrested on the 14
th
April
2005. It is also common cause that he was in custody until the
charges were withdrawn against him on the 9
th
March 2009.
[3]
The applicant caused summons to be issued and served upon the fourth
respondent on the 21
st
June 2011 and the third respondent on 22 June 2011, without serving
its notice of intention to claim within six months from the
date upon
which the cause of action arose.
1
The relevant notice was only served upon the first respondent on the
18
th
August 2010 and on the fourth respondent on the 24 August 2010.
[4] The applicant
claimed for general damages an amount of R2 500 000. 00, and in
respect of loss of income during detention calculated
at R129 684.28,
both totalling an amount of R2 633 776.00 (two million, six hundred
and thirty three thousand and seven hundred
and seventy-six rand),
consequent to the alleged unlawful arrest and detention.
[5]
Where a party failed to serve a notice of intention to institute an
action against an organ of state within 6 months from the
date on
which the cause of action arose
2
,
may approach the court for condonation of the late service of its
notice in terms of s3(4).
3
[6] Section 3(4)(b)
accords the court a discretion to grant condonation provided that 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.”
In the matter of
Minister
of Agriculture and Land Affairs v CJ Ranee
(Pty)
Ltd
4
Majiedt (AJA) held that these three requirements are conjunctive and
must be established by the applicant for condonation.
[7] The applicant’s
application in terms of s3(4)a) is premised on an affidavit deposed
to by his attorney of record. The
reasons advanced on the applicant’s
behalf for his failure to comply with s3 (1) of Act 40 of 2002 was
that: he is an illiterate
and indigent Mozambican citizen who was
employed as a miner and speaks mainly Fanakalo. It was difficult for
him to communicate
in the South African languages, without an
interpreter. Although he always intended to sue the authorities for
the inordinate period
that he had been incarcerated, he had lost his
job after his arrest and did not have funds to take appropriate steps
to sue. He
only saw his lawyer for the first time on 21 June 2010.
[8] The applicant
was arrested on the 14
th
April 2005, assuming that his
arrest was unlawful; this would be the date on which his cause of
action arose, or shortly thereafter
upon the expiration of 48 hours.
His right to claim was therefore extinguished by prescription on the
13
th
April 2008. That being the position, the court’s
discretionary powers to grant condonation are, in my view, ousted.
[9] The applicant,
on his own version, had always intended to sue the authorities. This
presupposes that he knew that he had a right
to sue and who. Assuming
that the incarceration contributed in his inability to sue that would
not have stopped the running of
prescription.
[10] The applicant
was released on the 9
th
March 2009 and only saw his lawyer
on the 21
st
June 2010.lt is trite that in criminal cases
the courts would always inform an arrested person of his rights to
legal representative
through Legal Aid, if he or she cannot afford
his own. It can hardly be expected that the applicant would for the
47 months he
was in custody, not have been aware of the existence of
the Legal Aid. He is in any event silent in regard to this aspect.
The
reason advanced on his behalf for only seeing any attorney 15
months after his release are not, in my view, good cause to warrant
that the court should exercise its discretion in his favour. In the
circumstances I conclude that the applicant has not furnished
this
court with satisfactory and good reasons for his inordinate delay in
seeking legal advice and initiating the process to sue.
[11] Besides, the
applicant does not provide any explanation, why the relevant notice
was only served upon the first respondent
on the 18
th
August 2010 and on the fourth respondent on the 24 August 2010. A
party who intends to bring an action against the organ of state,
when
he is out of time in complying with the provisions of s3(1), must
upon becoming aware of his failure, promptly and expeditiously
bring
an application for condonation. In my view there has also been an
inordinate delay in bringing this application for condonation
and
there is no good cause advanced for this.
[12] In the premises
the application for condonation is dismissed with costs.
N
M
.
MAVUNDLA
JUDGE OF THE COURT
DATE OF JUDGEMENT
: 23/05 /2014
PLAINTIFF’S
ATT : R T TSHIFURA ATT C/O BARES& BASSON ATT
PLAINTIFF’S
ADV : ADV T.P KRUGER
DEFENDANT’S
ATT : STATE ATTORNEY
DEFENDANT’S
ADV : ADV D MTSWENI
1
S3
(2) of Act 40 of 2002.
2
S3(2)
of Act 40 of
2002.
3
Act
40
of 2002.
4
2010
(4) SA 109
(SCA) at para [11].