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2014
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[2014] ZAFSHC 78
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Mashiya v Minister of Police (412/2014) [2014] ZAFSHC 78 (3 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
Number: 412/2014
In the matter
between:-
NJANYANE
JAN
MASHIYA
..................................................................................................
Applicant
And
MINISTER
OF
POLICE
.......................................................................................................
Respondent
JUDGMENT BY:
MOLOI, J
HEARD ON:
22 MAY
2014
DELIVERED
ON:
03
JUNE 2014
[1] This
is an application in terms of section 3 (4) (a) for condonation of
failure to give an organ of state notice as contemplated
in section
3(2) of The Institution of Legal Proceedings against certain Organs
of State Act No. 40 of 2002. (The Institution
of Legal
Proceedings Act).
[2] The
applicant in this matter was injured in the right eye and on his head
by an object that could have been a rubber bullet
or pellets
resulting in his loss of sight of the eye. This incident took
place on 21 April 2010 while he was sitting on a
camp chair waiting
for his car to be washed at a carwash in Odendaalsrus. There
were several police officers in the vicinity
who were trying to
disperse a large crowd of protesters. One police official fired
the shots at him as they passed him in
a police vehicle. He was
taken by the people at the carwash and driven in his own vehicle to
the police station where a report
was made and a policeman who fired
the shots was identified. He was thereafter taken to the Sir
Oppenheimer Hospital where
he was detained for treatment until his
discharge on 29 April 2010.
[3] As a
result of the shooting the applicant’s right eye was
permanently damaged, a rubber bullet or pellet was removed from
the
eye and a silicone ball was implanted in the eye socket. He
would require future medical treatment. The applicant
also
suffered loss of income and will continue to suffer loss of income in
the future as he lost his employment as a result of
the incident.
[4]
During May 2010 he consulted his attorney with a view to instituting
a claim for compensation against the respondent.
During
consultation the attorney informed him such claim must be instituted
within three years failing which it would be extinguished
by
prescription. Moreover the applicant did not know the law and
what was required to be done. He was also advised
to obtain the
medical and hospital records in the meanwhile. He was never
told about the notice required to be served within
a period of six
months from the date of the incident as required by section 3(2) of
Act 40 of 2002. The attorney also required
to be placed in
funds to cover the litigation costs. He could not provide the
required funds as he did not have money because
he subsequently lost
his job as a result of the injuries sustained during the incident.
[5] The
applicant kept contact with his attorney throughout and discussed his
problems in obtaining the hospital and medical records
as well as the
funds. Eventually in September 2011 he got funds and on 7
September 2011 his attorney dispatched per registered
post a notice
as contemplated in section 3(2) of Act 40 of 2002 to the respondent.
He, however, could not find proof of having
done so as his attorney
changed offices. As the funds he got were insufficient only in
January 2013 he entered into an agreement
with his attorney as to how
he would pay the attorney’s legal fees. A consultation
was arranged with counsel and the
summons was issued and served on 3
April 2013. During this consultation with counsel, the latter
pointed out that the notice
sent to respondent on 7 September 2011
was defective and, as a result, another notice was sent to the
respondent on 22 January
2013.
[6] The
fee agreement concluded between the applicant and his attorney did
not include counsel’s fees and as such a condonation
application required by section 3 (4) of Act 40 of 2002 could not be
launched. This application could only be done late in
December
2013 when the applicant, his attorney and counsel agreed to a
contingency fee arrangement regarding the payment of fees.
The
application for condonation was thus launched on 31 January 2014
though dated 27 January 2014. The explanation above
in
paragraphs 4, 5 and 6 is offered to explain the failure to serve the
notice envisaged in section 3(2) of Act 40 of 2002 timeously.
The applicant further asserts that he has good prospects of success
with the claim as he was shot and injured by police official
while he
was innocently sitting on a camp chair waiting for his car to be
washed and he has been seriously injured. There
was no reason
nor justification for the police officer to fire at him.
Furthermore the applicant contended that there would
be no
unreasonable prejudice suffered by the respondent should condonation
be granted. The reason for this contention is that the
incident was
reported to the police at Odendaalsrus on 21 April 2010 and also
notices were sent to respondent on 7 September 2011
and again on 22
January 2013 giving the respondent sufficient time to investigate the
circumstances of this incident. The
records were available and
so also the police officers concerned. It would not be a
problem for the respondent to locate
the police officers concerned.
The reason for the delay in serving the notice was attributed to the
applicant’s ignorance
of the law as well as his attorney’s
not knowing the provisions of the Act in question. Furthermore
the lack of funds
to pay for the litigation also contributed to the
delay.
[7] On
the other hand, the respondent contended that the applicant did not
show good cause for the delay as he took inordinately
long delay
before he could take steps to prosecute the matter. The debt
accrued on 21 April 2010; applicant had first consultation
with his
attorney during May 2010; the first notice was sent on 7 September
2011; a second notice was sent on 22 January 2013;
summons was served
on 3 April 2013; application was only launched on 31 January 2014
(dated 27 January 2014) and set down for hearing
on 6 March 2014 on
which date it was postponed for hearing on 22 May 2014. The
time for serving the required notice had expired
on 21 October 2010.
Application for condonation, seeking indulgence from the court,
should be done as speedily as possible as it
is not a right.
Moreover, it was argued, the applicant did not take the court into
his confidence by not disclosing the amount
of money he was required
to raise and how much he received from the Provident Fund on his
discharge from employment. The
applicant’s and his
attorney’s alleged lack of knowledge of the requirements of Act
40 of 2002 is, therefore, questionable.
[8] On
behalf of the respondent it was in addition submitted that the
prospects of success by the applicant are not as clear as
the
applicant sought to make out. According to respondent the
contradictory explanations made to Dr Pienaar by the applicant
clouded the issues even more. The applicant explained to Dr
Pienaar that he went to collect his vehicle when he fell prey
to a
gunfight between the police and suspected criminals and got shot in
the process. No specific person could be pointed
out as the
person who fired the shots. Furthermore the police
officer who allegedly fired the shots at the applicant,
Warrant
Officer Modise, according to the applicant’s witnesses, was not
even on duty on the day of the incident. The
effluxion of time
between the date of the alleged incident and the date of the
application being approximately five years, would
prejudice the
respondent as some witnesses might not be found and, even if
found, their recollection of what transpired might
not be reliable.
The merits of the applicant’s case can therefore not mitigate
the fault attributable to him and his attorney
and consequently, the
court should dismiss the application.
[9] The
court is given a discretion to grant an application for condonation
if it is satisfied that (a) the debt has not been extinguished
by
prescription, (b) a good cause exist for the failure by the applicant
to serve the requisite notice to the defendant and (c)
the respondent
would not be unreasonably prejudiced by that failure (See Sec 3(4)
(b)). The discretion the court has must be exercised
judiciously as
in all cases involving a discretion. The standard of proof
required for this exercise is not proof on a balance
of probability
but rather “the overall impression made on a court which brings
a fair mind to the facts set up by the parties”:
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) and court must “look at all those factors
which bear on the fairness of granting the relief between the parties
and
as affecting the proper administration of justice.”:
Madinda
at
paragraph 10.
[10] It
has been argued on behalf of the applicant that the claim had not
been extinguished by prescription. In support of
this assertion
is the reason that two notices were served on the respondent. The
first on 7 September 2011 (some eighteen (18)
months after the debt
arose) and the second on 22 January 2013 two (2) years and nine (9)
months after the debt arose). It
was conceded these notices
came long after the expiry of the six (6) month period within which
they should have been served.
Furthermore the summons was
served on 3 April 2013, some seventeen (17) days before the claim was
extinguished by prescription
in terms of
section 11
(d) of the
Prescription Act No. 68 of 1969
. The argument further was that
the service of the summons interrupted the running of prescription.
In this regard heavy
emphasis was placed on the decision in
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) in particular paragraph 11 on page 462 reading
as follows:
“
It
follows that where notice at all is given by the creditor,
and the organ of State relies on the failure, the
creditor can
nonetheless apply for condonation.
A fortiori
,
if the notice is
sent out of time, condonation may be granted. The
argument
that the application for condonation must precede the
issue and
service of summons (and that if it does not the summons
is
ineffective)
is unpersuasive.
[11] It
appears that the argument on behalf of the applicant is that for so
long as the claim has not prescribed, the applicant
can take as long
as he wishes to bring an application for condonation. This
attitude suggests condonation is no longer an
indulgence but a right
to be exercised as and when one pleases. In
Uitenhage
Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA) at paragraph 6 the court said:
“
Condonation is not to be had
merely for the asking; a full,
detailed and accurate account of the delay and their
effects must
be furnished so as to enable the Court to understand
clearly the
reasons and to assess the responsibility. It must
be obvious
that, if non-compliance is time-related then the date,
duration
and extent of any obstacle on which reliance is placed
must be
spelled
out”.
Some
features of this matter cannot be overlooked in determining the
reasonableness of the explanation given for the delay:
Firstly,
when did the applicant’s attorney, who knew about the
three-year prescription period, came to know about the requirements
of serving a notice on the respondent; secondly when he sent
the notice upon payment of the fees on 7 September 2011, why
was the
notice defective; thirdly, when the applicant consulted with
both his attorney and counsel on 22 January 2013 how
come both did
not raise the question of contingency fee until December 2013;
fourthly, seeing the applicant kept regular contact
with his legal
team why was absolutely nothing done about this matter for the entire
duration of the year 2012.
[12] Two
reasons are advanced as causes of the applicant’s delay in
asking for condonation for failure to act timeously in
terms of the
Act. Firstly, his lack of funds and secondly his lack of
knowledge of the law. Surely his legal team knew
about the
contingency fee arrangement and should have thought about it
immediately the applicant lost his employment since they
so strongly
believed in the strength of his case. Equally, the applicant’s
lack of knowledge of the legal requirements
cannot be explained
especially after his counsel came into the picture as long back as
January 2013 and advised about the defect
in the notice sent on 7
September 2011. Reliance of the applicant on the decision in
Mugwena and Another v Minister of Safety
and Security
2006 4) SA 150
(SCA) at
paragraph 15 and reference to
Mohlomi v
Minister of Defence
1997 (1) SA CC does
not take the applicant’s case further. The explanation of
the default must be reasonable enough
so as to exclude fault on the
part of the applicant:
Grootboom v
National Prosecuting Authority and Another
2014
(2) SA 68
(CC) at par [23]. The conjunctive requirements that must be
met as per section 3(4)(b) must be established by the applicant
Minister & Agriculture and Land
Affairs v CJ Rance
(Pty) Ltd
2010 (4)
SA 109
(SCA) at par [11]. See also
MEC,
Department of Health, Free State v Khomoeng Jane Mothupi
,
Appeal No. A241/2012 judgment of Kruger, Moloi and Lekale JJJ
delivered on 29 May 2014.
[13] It
was contended on behalf of the applicant that his lack of knowledge
of the law is a contributory factor to his failure to
comply.
The applicant’s attorney admitted having had no knowledge of
the provisions of section 3(2) and that must at
least have been until
7 September 2011 as he thereafter served a notice albeit defective.
Armed with this knowledge he, however,
did little if anything at all
to expedite the application for condonation. In
Dengetenge
Holdings (Pty) Ltd vs Southern Sphere Mining Company Ltd and Others
(612/12[2013] ZASCA (11 March 2013) at paragraph 13 the following was
said:
“
What
calls, for some acceptable explanation is not
only the delay in the filing of the heads of argument,
but
also the delay in seeking condonation. An
appellant
should, whenever it realises that it has not complied
with a rule of court, apply for condonation without
delay. (
Commissioner for Land Revenue v Burger
,
1956
(4) SA 446
(A) at 449 G-H).
There are huge gaps
in
the
chronological sequence advanced by Dengetenge
”
(my
emphasis).
[14] It
was argued that as per
Madinda
the blame should not be placed on the applicant. It is not in
every case that the applicant will avoid responsibility for
the
misdeeds or failures of his attorney or his lack of diligence:
Colyn v Tiger Food Industries LTd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) 9 H. If in all cases litigants can escape blame by
pleading ignorance of the law and avoid compliance therewith by
the
legal representative of procedural rules chaos will reign supreme.
A legal representative conducts litigation for and
on behalf of a
client. A legal representative is only an agent of the client
and the applicant cannot always escape liability
for the default of
the legal representative chosen by him:
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA 135
(AD) at 141 C – D as confirmed in
Colyn
v Tiger Food Industries Ltd
, supra.
[15] Looking
at the history of this matter it is unavoidable to qualify the delay
in prosecuting the application for condonation
as inordinately long.
The attitude of the applicant to convert an indulgence which he seeks
into a right cannot be tolerated.
I am not satisfied that the
requirements of section 3 (4) (b) were satisfactorily met. In
addition the prospects of success
of the applicant are not good at
all in the light of the contradictory versions given by the applicant
himself in his papers compared
to what he told Dr B.J Pienaar and the
fact that the alleged person who shot at the applicant was Warrant
Officer Modise who it
is already stated was not even on duty at all
on the day in question. The applicant has consequently failed
to make out a
case for condonation sought.
ORDER:
The
applicant’s application for condonation is dismissed with
costs.
_______________
K.J
MOLOI
On behalf of the applicant: Adv BS
Mene
Instructed by:
SMO Seobe Attorneys Inc
BLOEMFONTEIN
On behalf of the respondent: Adv A
Williams
Instructed by:
State Attorney
BLOEMFONTEIN