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[2014] ZAFSHC 76
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Moloi v Minister of Safety and Security and Others (3861/2013) [2014] ZAFSHC 76 (12 June 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Case No. : 3861/2013
In
the matter between:-
FRANCIS
RALENTSOE MOLOI
…......................................................................................
Applicant
and
MINISTER
OF SAFETY AND SECURITY
…..............................................................
1
st
Respondent
MINISTER
OF CORRECTIONAL SERVICE
…........................................................
2
nd
Respondent
DIRECTOR
OF PUBLIC PROSECUTION, FS
….......................................................
3
rd
Respondent
HEARD
ON:
29 MAY 2014
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
12 JUNE 2014
[1]
The applicant, a citizen of Lesotho, residing in Lesotho, applies for
condonation for the non-filing of a notice to institute
legal
proceedings against the Minister of Safety and Security and the
Minister of Correctional Services in terms of section 3(4)
of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 (the Act). These ministers are the
first and second
respondents, represented by Mr Mene, and oppose the relief sought.
The third respondent is the Director
of Public Prosecutions,
Free State who was not represented in court in these proceedings.
[2]
The chronology of events appears to be as follows from the founding
affidavit and other documents:
(i)
January 2007: Applicant arrested in Bloemfontein on charges of
armed robbery and attempted murder and detained at Grootvlei
prison
awaiting trial.
(ii)
According to the judgment of Rampai J the trial commenced on 27 July
2009. Applicant was accused number 5 in that trial. The
trial
was postponed several times. Rampai J says in his judgment that the
trial was marred by several interruptions. A number
of delays
were caused by legal representatives withdrawing. He specially
refers to the withdrawal of Mr Vorster for accused
number 1 due to
lack of funds, and the withdrawal of Mr Potgieter, which then left
accused 3, 4 and 5 unrepresented.
(iii)
According to the judgment, Mr Vorster later came back with a renewed
brief, now being instructed to appear for accused 1,
3, 4 and 5. The
judgment continues (par [12]): “From that moment I expected the
trial to run smoothly, it did not.
On that very same day
Tuesday 16 February 2010 accused 4 and 5 made a dramatic escape from
the court holding cell”.
Applicant’s version is that on
15 February 2010 he appeared in Free State High Court where the trial
was postponed for hearing
at a later date. Applicant felt
frustrated by the delays and escaped from the cells and made his way
back to Lesotho.
(iv)
According to the founding affidavit, about six months later applicant
received information that the Lesotho police were looking
for him,
and together with his lawyer went to the police station. He was
told that he was wanted in South Africa on charges
of armed robbery
and escaping. He was never taken to a court in Lesotho and was
taken to a small police post near the border
with South Africa in the
vicinity of Wepener.
(v)
On 8 June 2010 at that police post near Wepener, in Lesotho,
applicant was handed to members of the South African Police Service
who took him to Bloemfontein where he was detained at Park Road
Police station. That arrest on 8 June 2010 is his cause of
action for his wrongful arrest claim. According to the
respondents the applicant was arrested in South Africa for being an
illegal immigrant.
(vi)
On 24 July 2010 applicant stood trial in the Bloemfontein
magistrates’ court on a charge of escaping. His attorney
raised a special plea under
section 106(1)(f)
of the
Criminal
Procedure Act 51 of 1977
that the court lacked jurisdiction to deal
with the charge of escaping because he had been abducted from Lesotho
by the South African
Police.
(vii) On 28 July
2011 the magistrates’ court upheld the plea against
jurisdiction.
(viii)
Thereafter the applicant was detained at Grootvlei prison to await
his trial on the charges of armed robbery and attempted
murder.
(ix)
Applicant says in the founding affidavit that the trial in the Free
State high court commenced during the latter part of 2011.
This
statement is in conflict with the judgment of Rampai J, referred to
above, according whereto the trial commenced on
27 July 2007. When
applicant was brought before the high court in the latter part of
2011 applicant’s attorney raised
the same argument of lack of
jurisdiction because of the wrongful arrest.
(x)
On 14 November 2011 the high court ordered the release of the
applicant on the magistrate’s finding as to jurisdiction.
Applicant says on 14 November 2011 he became aware without any
doubt, and for the first time, that he had been arrested and
detained
unlawfully for the period from 8 June 2010 up to 14 November 2011 (19
months). In the founding affidavit applicant
says: “Before
the final verdict on 14 November 2011, my lawyer indicated to me that
he was of the opinion that my arrest
was executed unlawfully and
wrongfully. Since I am a layman in matters regarding the law, I
took notice of what my lawyer
said at the time, but I could not be
sure that he was right.” Applicant therefore alleges that
his cause of action
arose on 14 November 2011. He says he had
to give notice of his action against the respondents before 14 May
2012, which
was not done.
(xi)
After 14 November 2011 applicant went back to Lesotho and went on
with his life and got a new business going. He was
not
concerned about the prescription of his claim against the respondents
as he knew that “the period of prescription for
claims of this
nature is 8 (eight) years in Lesotho”.
(xii)
During the first half of February 2013 he approached his attorney in
Bloemfontein.
(xii)
On 15 February 2013 applicant’s attorney addressed a letter to
the state attorney, Bloemfontein, stating that the applicant
intended
to institute an action for damages arising from his unlawful arrest
and detention, “and our client has not been
able to address a
section 3
notice in terms of Act No 40, 2002”. The
attorney requested the state attorney “to accept or consent to
us in
writing that it will not be necessary to issue such a notice
since our client could not do it because he is a citizen of Lesotho”.
(xiii)
In a letter dated 25 February 2013 the state attorney informed
applicant’s attorney that his letter did not comply
with Act 40
of 2002 and that he must address his letter as well as his request
for condonation to the National Commissioner of
the South African
Police Service.
(xiv)
Applicant says his attorney and counsel advised him that requesting
such condonation from the commissioner “would probably
delay
the matter for many more months, and that we should rather approach
the above Honourable Court for the condonation required”.
(xv)
On 18 June 2013 the applicant’s lawyers then set about getting
a copy of the judgment of the high court, which they got
in August
2013.
(xvi)
On 27 June 2013 the present application was issued by the registrar
and served on the first two respondents namely the Minister
of Safety
and Security and the Minister of Correctional Services care of the
state attorney, Bloemfontein.
[3]
Mr Loubser submitted that the applicant had two court orders
confirming his wrongful arrest when he decided in February 2013
to
seek condonation from the state attorney. Mr Loubser says the
respondents cannot raise a denial of the wrongful arrest.
Mr
Mene, for the respondents, disagrees. He says it is absurd to
say the magistrate made a ruling that the arrest was
unlawful. All
the magistrate did was to uphold a plea against jurisdiction. From
the answering affidavit of the first
respondent it appears that the
applicant was illegally in South Africa when he was arrested on the
charges of robbery and attempted
murder. The magistrate was
dealing with a charge of escaping. In the high court the order
dated 14 November 2011 was:
“The case against accused 5 is
stayed”. The high court did not make a finding that the
arrest was unlawful.
[4]
Mr Mene’s first argument is that this application is premature.
No notice has been given to the state. Before
the
applicant can apply for condonation, the state must refuse. In
this case there has been no refusal by the state. Section
5 of
the Act deals with service of process. Section 5(1)(b)(ii) and
(iii) deal with process directed at the Minister of Safety
and
Security and the Minister of Correctional Services respectively.
When the Minister of Safety and Security is the defendant
or
respondent, section 5(1)(b)(ii) provides that such process may be
served on the National Commissioner of the South African Police
Service or the Provincial Commissioner. When the Minister of
Correctional Services is the defendant or respondent, process
may be
served on the Commissioner of Correctional Services or the Provincial
Commissioner. The state attorney has no authority
or power to
accept notices in terms of the Act. Further, the letter to the
state attorney was not a notice and gives no particulars
of the
alleged wrong. The state attorney told the applicant’s
attorney what to do, namely to serve a notice on the
Commissioner,
which the applicant’s attorney failed to do. Mr Mene
points out that in
Minister of Safety
and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA
457
(SCA) at par
[6]
a notice was sent, which was rejected. Then
summons was issued and the condonation application followed. The
Supreme
Court of Appeal held that a court does have the power to
condone a failure to serve a notice prior to the creditor’s
institution
of action (par [17]). In this case there has been
no notice and no rejection. No summons has been issued. Thus
this application is premature, and Mr Mene asks that it be rejected
on that basis alone. Mr Mene says the normal procedure
in these
cases is that a summons is issued against the minister. If no
notice was given, or notice was late or defective,
the minister
raises a special plea, and the issue of condonation is dealt with at
that stage, and the main action is stayed during
that debate.
[5]
On the merits Mr Mene raises prescription. He submits that at
the date of his arrest applicant knew it was an unlawful
arrest. He
refused to sign the form the police gave him to confirm that his
constitutional rights had been complied with.
Prescription
starts to run on the date when the applicant knew the facts from
which the debt arose –
Santam
Ltd v Ethwar
[1998] ZASCA 102
;
1999 (2) SA 244
(SCA).
His cause of action was complete on his arrest (252I-J). In
the magistrates’ court applicant alleged that
his arrest was
illegal. Applicant was legally represented by competent
attorneys. In the present case Mr Mene says
it would, as was
said in
Santam v Ethwar
(supra) at 256B - D lead to an untenable situation to be kept in
suspense indefinitely. Fault is a legal conclusion, it is
not
part of a plaintiff’s cause of action. See
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA
168
(SCA) par [17]. A party does not need to be conclusively
sure before prescription starts to run.
[6]
As to the requirement of good cause for the failure which the
applicant must show in terms of section 3(4)(b)(ii), Mr Mene pointed
out that Mr Loubser conceded that the applicant does not have a case
in respect of his detention, because he was detained under
valid
warrants issued by the courts -
Isaacs
v Minister van Wet en Orde
1996 (1)
SACR 314
(A) at 322h-323j.
[7]
Mr Loubser says it was not necessary for the applicant to send a
notice to the state because there are two court orders. It
was
not necessary to give details of the times. Mr Loubser says the
state attorney should have got instructions from its
client, the
Minister of Safety and Security.
CONCLUSIONS
[8]
As to the service of process, the law is that service against the
Minister of Safety and Security must be done on the state
attorney
(State Liability Act 20 0f 1957 section 2(2)). Act 40 of 2002
deals specifically with the notice to be sent before
proceedings are
instituted. The persons to whom the notice is to be given are
spelled out in section 5 of Act 40 of Act 2002.
A notice is not
process of court. It is possible that the state attorney may
not be instructed by the minister to appear
for the particular
minister in the matter in respect whereof a notice is given. The
minister may use other attorneys.
[9]
A notice in terms of act 40 of 2002 is not a formality. It
gives the organ of state details of an event in respect whereof
the
subject seeks to hold the state liable. That letter allows the
organ of state time to investigate the complaint and possibly
agree
to payment or settlement without incurring the costs of litigation.
Section 5(2) provides that no process instituting
legal
proceedings may be served before the expiry of 30 days after the
service of the notice. The principle that an organ
of state
must be given an opportunity to consider the claim is not new. It
existed under the Multilateral Motor Vehicles
Accident Fund Act 93 of
1989 (and earlier legislation), dealing with claims against the Road
Accident Fund, in terms whereof prescription
was suspended for 90
days after the claim had been lodged, so that the Road Accident Fund
could consider the claim without incurring
cost of litigation. The
serving of the notice under Act 40 of 2002 puts in place a chain of
enquiry in the offices of the
organ of state. The organ of
state does not need to investigate a complaint until a letter of
demand has been received.
[10]
This application must fail for a number of reasons. Firstly
because no notice was given to the Commissioners of Police
and
Correctional Services as prescribed in Act 40 of 2002, and
particularly section 5(1)(b) where the recipients of the notices
are
identified. The purpose of the notice is to give the minister
the opportunity to assess the merits of the claim. The
Act does
not contemplate a situation where condonation is considered before
summons has been issued where no notice has been given.
Section
5(2) provides that no summons may be issued before the minister has
had 30 days to consider the claim. This application
is
premature and cannot be considered in the absence of a notice or a
summons. I do not lose sight of the fact that a court
can
consider condonation also where no notice was given before the
summons was served.
[11]
The second reason why the application must fail is because it has
become prescribed. Prescription started running on the day
of
applicant’s arrest on 8 June 2010. He was represented by
an attorney when he went to the police, and at the police
station he
refused to sign the form that his constitutional rights had not been
violated. He was represented by attorneys
throughout.
Applicant was aware of his claim. His claim became
prescribed on 7 June 2013. As for his detention,
he was
detained in terms of valid warrants issued by courts of law, and no
claim lies in respect thereof. He also accepted
his detention
by applying for bail.
[12]
Applicant has not shown good cause. He was aware of his cause
of action, but failed to do anything. His attorney
failed to
follow the advice of the state attorney to give notice to the
Commissioner. He had no need to wait for the judgment
of the
high court. There is no merit in applicant’s claim.
[13]
The last requirement the applicant has to satisfy in terms of section
3(4)(b)(iii) is that the Minister was not unreasonably
prejudiced.
It appears from the answering affidavit of the second
respondent’s deponent that the original file of the
applicant
containing the signed warrants of detention could not be located. A
long period of time has elapsed since the arrest
of the applicant,
and the applicant’s original file with the warrants cannot be
traced. There is no merit in the application.
ORDER
1.
The application is dismissed with costs.
____________
A.
KRUGER, J
On
behalf of applicant: Adv P. J. Loubser
Instructed
by:
Fixane
Attorneys
BLOEMFONTEIN
On
behalf of
1
st
& 2
nd
respondents: Adv B. S. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN