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[2014] ZAFSHC 114
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Minister of Safety and Security v Uwam (A234/2013) [2014] ZAFSHC 114 (7 August 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. :
A234/2013
In
the appeal between:-
MINISTER
OF SAFETY AND SECURITY
….......................................................................
Appellant
and
LEONARD
UWAM
…............................................................................................................
Respondent
CORAM:
KRUGER, MOLEMELA JJ
et
MBHELE, AJ
JUDGMENT
BY:
KRUGER, J
HEARD
ON:
4 AUGUST 2014
DELIVERED
ON:
7 AUGUST 2014
[1]
The respondent applied in the magistrates’ court for
condonation of his failure to deliver a notice in terms of section
3(1)(a) of the Institution of Legal Proceedings against certain
Organs of State Act 40 of 2002. The magistrate granted condonation,
but the appellant appealed. The two judges to whom the matter was
allocated could not agree and the matter was referred to three
judges.
[2]
The respondent’s cause of action arises from a motor collision
on 23 December 2009, involving three vehicles. Respondent
says his
vehicle was stationary at the robot in St Georges Street, at the
intersection with Hanger Street in Bloemfontein. A Quantum
vehicle
driven by one Radebe (this was the unmarked police vehicle) was
standing at the opposite red robot. A taxi was proceeding
in Hanger
street towards the intersection with St Georges Street. The Quantum
drove over the red light and bumped into the taxi
which, according to
what respondent saw, drove over an amber light and bumped into the
taxi. Respondent’s vehicle was still
stationary at the
intersection. As a result of the collision between the Quantum and
the taxi, the Quantum was propelled towards
respondent’s
vehicle and bumped into it.
[3]
The reason for the respondent’s delay in notifying the
appellant of his claim was that he was waiting for the completion
of
the criminal proceedings against Vela Gigi, the taxi driver and
second respondent in the case in the magistrates’ court.
In
those proceedings the appellant was the first respondent and B C
Sithole the taxi operator was the third respondent. As stated,
the
collision occurred in December 2009. In February 2010 respondent’s
attorneys were instructed to represent him in an action
he intended
to institute. He consulted with his attorney and they decided to keep
the civil action in abeyance pending the outcome
of the criminal
case. This decision was taken so that the evidence led at the
criminal trial could be used in the civil proceedings.
During the
period February 2010 to June 2011 the criminal case was postponed
several times whereafter charges were withdrawn due
to the fact that
some of the witnesses did not attend court. On 7 June 2011 the
respondent informed his attorney of the outcome
and instructed his
attorney to obtain copies of the accident report and details of the
registered owners. The documents and information
were obtained in
July 2011. In his founding affidavit the present respondent states
that he was at all times aware that the vehicle
DSR 537 FS was driven
by one Radebe, a police official, and that it was a state-owned
vehicle.
[4]
On 20 July 2011 the respondent was advised that a notice had to be
sent in terms of Act 40 of 2002. His attorney then sent a
letter to
the offices of the Minister of Safety and Security at 45 Maitland
street, Bloemfontein. The legal adviser of the Provincial
Department
of Police, Roads and Transport wrote to respondent’s attorney
on 31 August 2011 informing him that notice had
to be given to the
National or Provincial Commissioner. On 3 November 2011 the
applicant’s attorney addressed a notification
to the Provincial
Commissioner. This notice was served on 17 November 2011. The
respondent’s attorney in the letter stated
that if no response
is received, it would be deemed that condonation was granted. No
response was received, and respondent caused
summons to be issued on
26 January 2012. The Special Plea was lodged on 8 August 2012.
[5]
On behalf of the appellant Mr Mene contends that condonation should
not have been granted. He says the notice was about two
years out of
time. Mr Mene says the sending of the notice to the wrong address
initially cannot be excused. He says the respondent
is mala fide in
bringing this action against the appellant, because the party who is
liable is before court and not defending the
action.
[6]
Mr Mene stresses that from all the facts before the court it appears
that the respondent knew that the vehicle was a state-owned
vehicle.
The respondent probably knew it was a police vehicle. Mr
Groenewald, who appeared for the respondent, did
not try to convince
us of the fact that the respondent did not know it was a state
vehicle. He stressed that in condonation
applications the court
considers all the circumstances and because the respondent’s
merits are strong, his reasons for the
delay need not be so good.
[7]
One must bear in mind that this was a collision involving three
vehicles. It is possible that a measure of blame attaches
to
more than one vehicle. There could be an apportionment.
It is not possible to decide the merits of the collision
at this
stage. The respondent has shown that he has prospects of
success in the main case.
[8]
Mr Mene says it was unreasonable for the respondent to wait for the
criminal case, with reference to the unreported judgment
of Jordaan J
in this division in
Marais v Minister
of Safety and Security and Another
,
Case 1521/2010, 6 September 2010. In that case Marais was a
magistrate who was arrested because she straddled the barrier
line on
the road between Thaba Nchu and Bloemfontein. Her notice to the
respondent was more than a year out of time.
Mrs Marais said
she intended to wait for the finalisation of her prosecution before
dealing with her civil claim for unlawful arrest
and detention (p4
line 20). Jordaan J found that the result of the criminal
charge, if it was proceeded with, would have
no bearing on the
question whether she was arrested or detained unlawfully (p11 line
15). The traffic offence and the unlawful
arrest have different
causes of action. That is not the case here. In both the
criminal and the civil case the same
collision, involving relative
blame of the same drivers, is before court. The
Marais
case must be distinguished on the facts. A further point is
that Mrs Marais was a magistrate, in this case the respondent
is a
lay person.
[9]
Mr Mene also referred to
MEC
Department of Health, FS v Mothupi
Case A241/2012, 29 May 2014 where a full bench of this court refused
to grant condonation because the respondent’s delays
remained
substantially unexplained (par [20]). In that case the
respondent’s attorney was repeatedly advised by the
state
attorney who the correct party to sue was, but the respondent’s
attorney, until the hearing in the court
a
quo
insisted that the National Minister
of Health was the correct party, not the MEC. In that case
there were numerous delays
which remained unexplained. In this
case the respondent took the view to wait for the criminal case.
That is a sensible
reason.
[10]
Mr Mene also blames the respondent for waiting for five months after
the special plea was lodged before he brought a condonation
application. The respondent believed he was within his rights
and has prospects of success. No undue prejudice has
been
shown.
[11]
In applications of this nature the party seeking condonation must
fully explain the delay and it must be clear that there will
not be
undue prejudice to the state department. In this case the respondent
had a legitimate and sensible reason for the delay.
Often parties
wait for criminal cases to be completed, especially in motor
collision cases, before instituting civil claims. Once
the criminal
case has been finalised, the facts have been established, and cases
are often settled at costs which are much lower
than had the civil
case run its course. That was the respondent’s intention in the
present case. The test to be applied is
that the court comes to an
overall impression as to whether condonation should be granted
bringing to bear a fair mind to the facts
set out by the parties -
see
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4)
SA 312
(SCA) par [8]. A court will be slow to assume prejudice for
which an organ or state does not lay a basis (par [21]).
[12]
In the judgment the magistrate comprehensively considered the facts
and circumstances and decided to grant condonation. That
evaluation
and decision cannot be faulted.
ORDER
1.
The appeal is dismissed with costs.
_______________
A. KRUGER, J
I
agree.
________________
M.B.
MOLEMELA, J
I
agree.
________________
N.M MBHELE, AJ
On
behalf of appellant: Adv B.S. Mene
Instructed
by:
State Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv W.J. Groenewald
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN