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2024
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[2024] ZALMPPHC 3
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Shingwenyana v Minister of Justice and Correctional Services and Others (4805/2020) [2024] ZALMPPHC 3 (15 January 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4805/2020
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
In
the matter between:
LINDA
SHINGWENYANA
APPLICANT
And
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
FIRST
RESPONDENT
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS
[POLOKWANE]
THIRD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant was arrested on 22
nd
February 2013 and
charged with 30 counts of theft. On 30
th
July 2014 the
applicant and the prosecution entered into a plea agreement in terms
of section 105A of the
Criminal Procedure Act 51 of 1977
(CPA). In terms of the agreement the applicant was found guilty on
30
th
counts of theft. The applicant was sentenced to 5
years imprisonment wholly suspended on condition that she was not
convicted of
fraud or theft during the period of suspension. It was a
further condition of the agreement that the applicant pay back the
complainant
in the sum of R70 000.00 in monthly instalments of R1
207.00 until the capital amount was paid in full.
[2]
The applicant allegedly defaulted with her monthly payments during
December 2014 and January 2015. The
third respondent brought the
applicant to court for the operation of the suspended sentence.
However, the applicant paid her arrears
in full and the third
respondent removed the matter from the roll and her sentence was
suspended further. During November 2016
the applicant was allegedly
again in default with her monthly payments. A warrant of arrest was
authorised against the applicant.
The applicant was only arrested on
31
st
May 2018.
[3]
The applicant appeared in court on 1
st
June 2018 and was
remanded in custody. A trial was held, and on 31
st
January
2019 the suspended sentence imposed on 30
th
July 2014 to
be put into operation. The applicant was detained at Polokwane
Correctional Service Centre. Aggrieved by the decision
of the
regional court to put the suspended sentence into operation, the
applicant brought a review application in the High Court.
Thereafter
the applicant applied to be released on bail pending the finalisation
of the review application. Her application to
be released on bail was
refused and she appealed that decision. She was released on bail on
24
th
June 2019 after she was successful with her appeal.
She was also successful on her review application when the order of
the regional
court to put the suspended sentence into operation was
set aside by the High Court on 25
th
October 2019.
[4]
On 23
rd
June 2020 the applicant issued a notice in terms
of section 3 of Act 40 of 2002 against the respondents. The combined
summons was
issued on 30
th
July 2020 against the
respondents. The applicant’s cause of action is the alleged
unlawful detention for the period 31
st
January 2019 up to
4
th
June 2019.The respondents have defended the
applicant’s action and have raised several special pleas. One
of the respondents’
special plea is the applicant’s
alleged failure to comply with the provisions of section 3 of the
Judicial Amendment Act
8 of 2017 read with Act 40 of 2002 (Act).
According to the respondents’ special plea, the alleged
wrongful and unlawful detention
arose on 31
st
January
2019, and therefore the six months period contemplated in section 3
of the Act lapsed on 30
th
July 2019.
[5]
That led to the applicant launching a condonation application for
non-compliance with the provisions
of section 3 (1) and (2) of the
Act. In his condonation application the applicant had conceded that
the cause of action arose on
31
st
January 2019, and that
the time period within which the notice in terms of section 3 of the
Act was supposed to be issued lapsed
on 30
th
July 2019,
and that the applicant had failed to give that notice within the
stipulated time period.
[6]
In his founding affidavit for the condonation application the
applicant has stated that she was arrested
and charged with several
counts of theft. She entered into a plea agreement with the
prosecution wherein he was sentenced to 5
years imprisonment which
was suspended for 5 years on condition that she repay the complainant
R70 000.00 in monthly instalments.
During July 2018 she could no
longer afford to pay the monthly instalments per the court order. A
warrant of arrest was issued
against her and on 31
st
January 2019 the suspended sentence was put into operation, and she
started serving the 5 years sentence. She brought a review
application and was released on bail on 24
th
June 2019. On
25
th
October 2019 her review application was successful
when the order of the regional court to put the suspended sentence
into operation
was reviewed and set aside.
[7]
On receipt of the outcome of the review, she did not immediately
instruct her attorneys to institute
a civil claim against the
respondents. She contacted her attorneys to institute a civil claim
against the respondents during December
and was informed that her
legal representative has been hospitalized, and further that their
office was closing for festive season.
During January 2020 when she
visited her attorney’s office, she was informed that the mother
her attorney had died as a result
of covid-19 related illness and her
attorney will be out of office for an indefinite period of time
mourning the death his mother.
She managed to consult with her
attorney towards the end of January 2020, and she gave her attorney
instructions to immediately
institute an action against the
respondents.
[8]
Due to the strict covid-19 regulations her attorney could not
institute the action against the respondents
as the issuing of legal
proceedings was suspended at that time period. From the 24
th
May 2020 to 9
th
June 2020 the applicant’s attorney
was hospitalized. The notice in terms of section 3 of the Act was
only issued on 23
rd
June 2020. The applicant avers that
the cause of action arose on 25
th
October 2019 when her
review application was successful and the order of the regional court
was reviewed and set aside. According
to the applicant her notice was
sent two months outside the six months’ time period allowed by
section 3 of the Act. Should
condonation not be granted, she will be
prejudiced as her main action will have to be withdrawn.
[9]
The respondents are opposing the applicant’s condonation
application. In the answering affidavit
the respondents have stated
that the applicant has failed to satisfy the requirements of good
cause for the court to exercise its
discretion whether to grant
condonation. That the applicant had failed to satisfy the
requirements as provided for in section 3(4)(b)
of the Act. It is the
respondents’ contention that the applicant’s cause of
action arose on 31
st
January 2019 when her suspended
sentence was put into operation, and that her explanation for the
delay should start from the 30
th
July 2019.
[10]
The applicant is seeking condonation application for her failure to
serve the notice of intention to bring
legal proceedings within the
six months period provided for in section 3(2)(a) of the Act. It is
trite that in an application for
condonation factors which should be
considered include the degree of non-compliance; the explanation
therefor; the importance of
the case; a respondent’s interest
in the finality of the judgment of the court below; the convenience
of this court and the
avoidance of unnecessary delay in the
administration of justice. A full, detailed and accurate account of
the cause of delay and
their effects must be given so as to enable
the court to understand clearly the reasons and to assess the
responsibility. (See
Mulaudzi
v Old Mutual
Life
Assurance
[1]
).
[11]
Condonation for late service of the notice in terms of section 3(2)
is regulated by section 3(4)(a) of the
Act. In order to enable the
court to exercise its discretion whether to grant the condonation,
the applicant had to satisfy the
court that the (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
Madinda
v Minister of Safety and Security
[2]
Heher JA said:
“
The phrase ‘if
[the court] is satisfied’ in s 3(4)(b) has long been recognised
as setting a standard which is not proof
on a balance of probability.
Rather it is the overall impression made on a court which brings a
fair mind to the facts set up by
the parties”.
[12]
What this court is required to determine is whether the applicant has
submitted acceptable reasons for her
delay in not serving the notice
timeously. From the onset, the applicant’s condonation
application is scanty. The applicant
did not provide a full, detailed
and accurate account of the cause of her delay in issuing the notice
within the prescribed time
period. The applicant’s cause of
action is based on her detention from 31
st
January 2019 up
to 4
th
June 2019. The prescribed notice was issued on 23
rd
June 2020. In paragraph 6.4 of the founding affidavit, the applicant
alleges that her claim for wrongful and unlawful detention
arose and
fell due on 31
st
January 2019. In paragraph 6.6 of the
founding affidavit the applicant alleges that the period of six
months as contemplated in
the Act lapsed on or about 30
th
July 2019. In paragraph 9.4 the applicant alleges that the cause of
action against the respondents arose on 25
th
October 2019
when the order of the regional court was set aside on review. In
paragraph 9.5 the applicant alleges that his notice
was issued on
23
rd
June 2020 which makes it to be 2 months outside the
prescribed time period.
[13]
The applicant had stated two dates for the same cause of action
without claiming the other date in the alternative.
The applicant had
failed to set out the grounds why she is of the view that the 25
th
October 2019 is the date on which her cause of action arose. It is
not for the court to assume as to why the applicant is of the
view
that the cause of action arose on 25
th
October 2019. If
she was not certain whether she would have good chance of prospects
of success before her review application was
finalised, that should
be clearly stated in his founding affidavit by giving a full and
detailed account of what made her to believe
so. However, in this
application the applicant has failed to do so.
[14]
In
Truter
and Another v Deysel
[3]
Van Heerden JA said:
“
In a delictual
claim, the requirements of fault and unlawfulness do not constitute
factual ingredients of the cause of action, but
are legal conclusions
to be drawn from the facts:
‘
A cause of action
means the combination of facts that are material for the plaintiff to
prove in order to succeed with the action.
Such facts must enable a
court to arrive at a certain legal conclusion regarding unlawfulness
and fault, the constituent elements
of a delictual cause of action
being a combination of factual and legal conclusions, namely a
causative act, harm, unlawfulness
and culpability or fault’”.
[15]
The applicant has been in custody from 31
st
January 2019 to 24
th
June 2019. Her cause of action arose the date on which she was
detained. When she was released on bail on 24
th
June 2019 she had the entire facts which she needed to prove her
claim. She was aware that if she was going to sue the respondents
for
unlawful detention will be for the time period she had spent in
detention, and was aware of that time period. Therefore, the
issuing
of the notice was not depended on the outcome of the review
application. Section 12(3) of the
Prescription
Act
[4]
provides that a debt shall not be deemed to be due until the creditor
has knowledge of the identity of the debtor and of the facts
from
which the debt arose: Provided that a creditor shall be deemed to
have such knowledge if he could have acquired it in exercising
reasonable care.
[16]
When the applicant was released from detention on 24
th
June 2019 the six months period had not yet expired. She was aware of
who the debtors were, and the facts from which the debt arose.
The
six months period had expired on 30
th
July 2019. The
applicant was therefore required to give a full and accurate
explanation of her failure to issue the notice on time,
which was
supposed to have been issued on or before the 31
st
July
2019, and she had failed to do so. She is merely stating that she was
awaiting the out of the review application without stating
what had
prevented her from issuing the notice before receipt of the outcome
of the review. She has also stated that she did not
immediately
instruct her attorneys to proceed to institute a civil claim against
the respondents without giving an explanation
of what prevented her
to do so. That in itself shows that she was aware of material facts
necessary for her to institute a civil
claim against respondents, but
deliberately ignored to act.
[17]
Even if one was to accept that the applicant became aware of the
facts from which the debt arose on 25
th
October 2019, the
applicant has still failed to give a full, detailed and accurate
account of her failure to issue the notice within
the stipulated time
period after the 25
th
October 2019. After the 25
th
October 2019 the applicant only consulted her attorneys during
December 2019, she does not explain why she did not consult
immediately
after receipt of the outcome of the review and instruct
her attorneys to issue the notice.
[18]
According to the applicant she could not consult with her attorney
during December 2019 as her attorney was
hospitalised and the
attorney’s office was closing for festive seasons. The
applicant only managed to consult with her attorneys
during the end
of January 2020 and she instructed her attorneys to immediately
institute a civil claim against the respondents.
However, her
attorneys did not immediately issue the required notice as
instructed, but did so on 23
rd
June 2020. The applicant
had further stated that on 23
rd
March 2020 the country was
subjected to lock down and that the operation of the laws were either
suspended or the periods extended
by the Regulation, and that is the
reason why the notice was not timeously issued.
[19]
The hard lock down only came into operation on 26
th
March
2020. The applicant did not even attempt to explain why the notice
was not issued between the period end of January 2020
and 25
th
March 2020 since the country was not yet subjected to hard lock down.
Further, the applicant had instructed her attorney to immediately
institute a civil claim against the respondents during the end of
January 2020, and no explanation was given as to what prevented
her
attorney to act in accordance with her instructions. In my view, the
applicant had failed to show good cause for her failure
to comply
with the requirements of section 3(2) of the Act.
[20]
In result the following order is made:
20.1 The applicant’s
application for condonation is dismissed with costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicant
:
HA Mushwana
Instructed
by
:
Mushwana Inc
Counsel
for the respondent
:
Adv Kgare MN
Instructed
by
:
State Attorney Polokwane
Date
heard
:
9
th
October 2023
Electronically
circulated on
:
15
th
January 2024
[1]
2017
(6) SA 90
(SCA) at para 26
[2]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para 8
[3]
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at para 17
[4]
68
of 1969