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[2024] ZAFSHC 121
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Minister of Police v Maseko (A107/2023) [2024] ZAFSHC 121 (30 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Appeal
case no:
A107/2023
Court
a
quo
case no:
3025/2019
In
the
matter between:
MINISTER
OF POLICE
Appellant
Respondent
in
the
court
a
quo
And
NOMSA
INNOCENTIA
MASEKO
Respondent
Applicant
in the court a
quo
CORAM:
JJ MHLAMBI ADJP, JP
DAFFUE J
et
ST MGUDLWA
AJ
HEARD
ON:
25 MARCH 2024
DELIVERED
ON:
30 APRIL 2024
ORDER
1.
The
appeal
succeeds in part.
2.
The
order
of the court a
quo
is set
aside and replaced with the following:
2.1
Condonation is
granted to the applicant for failing to serve the notice contemplated
in section 3(1)(a) of the Institution of Legal
Proceedings against
Certain Organs of State Act 40 of 2002 within the prescribed period
and in accordance with that Act.
2.2
The applicant
shall pay the costs of the application, including the
respondent's
costs of
opposition.
3.
There shall be
no order as to the costs of the appeal.
INTRODUCTION
[1]
At around
22h00 on Friday night, 30 June 2017,
ie
in the
middle of the Free State winter, an unemployed woman, aged 38 years
at the time, was arrested without a warrant of arrest
in the presence
of her two minor children. She was taken into custody and detained in
a police cell until Monday 3 July 2017. She
was released from police
custody at around 12h00 that day. No criminal prosecution was
instituted against her.
[2]
The woman had
no option than to seek condonation in terms of s 3(1)(a) of the
Institution of Legal Proceedings
against
Certain Organs
of State Act 40 of 2002 (Act 40 of 2002) for her failure to timeously
serve a notice of her intention to institute
legal proceedings
against the Minister of Police (the Minister). The Minister opposed
her application. After hearing argument,
Mpama AJ handed down
judgment in favour of the woman. The Minister appealed to the full
bench of the Free State High Court with
leave of the court a
quo.
THE
PARTIES
[3]
The
Minister,
being
the
unsuccessful
respondent
in
the
application
for
condonation and the defendant in the action proceedings instituted
against him, is the appellant in the appeal before us. Adv
GJM Wright
appeared for the Minister on instructions of the State Attorney's
office in Bloemfontein
.
[4]
Ms Nomsa
lnnocentia
Maseko,
residing
in Galeshewe,
Kimberley
,
is the
unemployed woman referred to above, she being the plaintiff in her
action against the Minister and the successful applicant
in the
application for condonation
.
[5]
Ms Maseko was
represented by an attorney during the application for condonation,
but there was no appearance on her behalf during
the application for
leave to appeal or in the appeal before us
.
We have been
informed by Adv Wright that her attorney had been in contact with Ms
Maseko's attorney the morning before the appeal
was heard. He
i
nformed
her that they were abiding the decision of this court. In contrast
with the detailed heads of argument drafted by Adv Wright,
an
experienced
and
diligent legal practitioner, we were not favoured with any heads of
argument on behalf of Ms Maseko.
[6]
In
order
to
avoid
confusion,
I
shall
refer
hereinafter
to
the
appellant
as
the Minister
and to the respondent as Ms Maseko.
JUDGMENT
OF THE COURT
A QUO
[7]
The
court a
quo
considered
the delays in not only serving the notice of demand timeously
,
but
also the further delays in launching the application for condonation
and the failure to properly explain these delays
.
Having
considered that, it commented as follows:
[1]
'I
do not intend to make a pronouncement
on the
weakness or strength of the applicant's [Ms Maseko's] case against
the respondent [the Minister of Police] as such is reserved
for the
trial court. However, to me an examination of the statements reveal
that the applicant has made a prima facie or will be
able to make a
prima facie case against the respondent. I find that the merits of
the applicant's case mitigate her fault for the
delay
.
The respondent
averred that it is prejudiced by the non-compliance with the Act.
Nonetheless, the court has not been told by the
respondent that due
to a late filing of the notice, some evidential material is missing
,
the witnesses
are untraceable (or the respondent will struggle to secure some
witnesses) and as such not in a position to properly
defend the
matter
.
The
respondent made a blanket statement of prejudice without stating
specifically how he will be prejudiced
.'
[8]
The court a
quo
continued
in paragraph 14, relying on the right of access to court guaranteed
in s 34 of the Constitution.
It stated that
whenever there is a failure to comply with time limitations, our
courts may in their discretion grant condonation
when the principles
of justice and fairness demand that.
[9]
In dealing
with costs,
the court
a
quo
stated
that it could
not be said
that the Minister was unreasonable in opposing the matter or that he
was
.
a
vexatious litigant.
.
Having said
this, it decided to grant no order as to costs.
THE
GROUNDS OF APPEAL
[10]
The Minister raised
seven grounds of appeal. He averred that the court a
quo
erred:
a.
in finding that Ms
Maseko had shown on a balance of probabilities that there existed
good cause for her failure to comply with the
notice requirement;
b.
in not finding
that Ms Maseko had failed to explain her failure to timeously give
notice, either fully or properly;
c.
in finding
that
the merits
of Ms Maseko's
case
based
on unlawful
arrest
and
detention
mitigated her fault for delaying in giving notice;
d.
in
finding that
the appellant was not unreasonably prejudiced by the late service of
the letter of demand;
e.
in failing to
consider that Ms Maseko had given no explanation for the delay in
launching the
application for condonation;
f.
in
not
exercising its
discretion
against.granting
condonation
due
to
Ms
Maseko's failure to
provide proper reasons for the delay in launching the condonation
application;
g.
in not
ordering Ms Maseko to pay the costs of the condonation application.
ACT
40 OF 2002
[11]
The relevant
portion of s 3 of Act 40 of 2002 reads as follows:
'3
Notice of intended legal proceedings to be given to organ of state
(1)
No legal
proceedings
for
the recovery of a debt may be instituted against an organ of state
unless
(a)
the
creditor has given
the
organ of state in question
notice
in writing of his or her
or
its
intention to institute the legal proceedings in question
;
or
(b)
the organ
of state
in
question
has
consented
in
writing to the institution of that legal proceedings
(i)
without
such notice
;
or
(ii)
upon receipt
of a notice which does not comply with all the requirements set out
in subsection (2)
.
(2)
A notice must-
(a)
within s
i
x
months
from
the date on which the debt became due
,
be served on
the organ of state in accordance
with section 4
(1); and
(b)
briefly set
out-
(i)
the facts
giving rise to the debt
;
and
(ii)
such
particulars of such debt as are within the knowledge of the creditor
.
(3)
...
.
.
(4)(a)
If an organ of state relies on a creditor's failure to serve a notice
in terms of subsection
(2) (a)
,
the creditor
may apply to a court having jurisdiction for condonation of such
failure
.
(b)
The court
may grant an application
referred to in
paragraph (a) if it is satisfied that
(i)
t
he
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
.
(c)
If an
application is granted in terms of paragraph (b), the court may grant
leave to institute the legal proceedings in question,
on such
conditions regarding notice to the organ of state as the court may
deem appropriate
.'
(emphasis
added)
[12]
Furthermore,
Ms Maseko
was required
to comply with s 4 of the Act. She was obliged to serve the notice of
demand by delivering it by hand, or sending it
by certified mail, or
by sending it by electronic mail, or by transmitting it by facsimile.
In the last two instances she also
had to comply with subsec 4(2).
The notice had to be served on both the National Commissioner
of Police as
well as the Provincial Commissioner, Free State.
EVALUATION
OF
THE
FACTS,
THE
MINISTER'S
SUBMISSIONS
AND
RELEVANT
AUTHORITIES
[13]
The
Minister's
legal
representatives
elected
to
bind
the
pleadings
into
the
appeal
record. It is clear from a perusal of the pleadings and application
for condonation that the attorney representing Ms Maseko
at the time
is inexperienced and totally out of his depth.
[14]
The
particulars of claim read to an extent as an affidavit and not as a
pleading. Severally sentences start with the words: '[T]he
plaintiff
says
...
'.
Fact of the matter is that evidence has been pleaded that cannot be
disregarded. At a stage a replication was filed out of time
which was
not only withdrawn, but substituted by another replication which was
also filed hopelessly out of time. These documents
were not attached
to
the
application papers, but form part of the appeal record and could not
be disregarded. I shall soon return to an aspect raised
therein.
[15]
It
is
apposite to briefly refer to the pleadings before
I
deal with the
allegations contained in the condonation application. It is alleged
in the particulars of claim that:
a.
upon her
arrest the arresting officers were requested by Ms Maseko to search
her 'shanty'
[a reference
to her residence] to look for the alleged stolen items, but they
refused;
b.
she
told
the arresting
officers that she had not committed any offence, but they responded
that
she
had opened cases against her husband in the past, that he was also
arrested and that she must be arrested too;
c.
there was no
reasonable justification for arresting Ms Maseko;
d.
she was
arrested without a warrant of arrest;
e.
proper notice
was given to the Minister in terms of s 3 of Act 40 of 2002.
[16]
In his plea
the Minister confirms that Ms Maseko did not formally appear in court
and was released from custody on 3 July 2017 and
that the arrest was
effected without a warrant. He alleges that the arresting officers
held a reasonable suspicion that Ms Maseko
had committed a Schedule 1
offence, to wit theft and therefore the arrest was
justified
and lawful.
[17]
Pertaining
to the notice of demand alleged to be given by Ms Maseko, a special
plea was filed which reads as follows:
[2]
'No
notice was sent to the Defendant
in terms of the
provisions of the Act; alternatively
,
no notice
in terms of the Act
was
received
by the Defendant
and/or
its relevant officials.'
(emphasis
added)
The
special plea and plea were filed on 12 February 2020.
[18]
After the
close pleadings Ms Maseko's attorney served a discovery affidavit on
the State Attorney
.
At the request
of the State Attorney, a notice in terms of rule 35(6) was served.
The following two documents referred to in the
discovery affidavit
were attached to the notice which also forms part of the appeal
record:
a.
Ms Maseko's
notice in terms of s 3 of Act 40 of 2002;
b.
a letter from
the National Commissioner: SA Police Service dated 17 May 2019,
acknowledging
receipt
of
Ms Maseko's notice in terms of s 3.
The
aforesaid letter, signed by a certain Capt Ml Tlali on behalf of the
National Commissioner, predated the special plea. The first
two
paragraphs read as follows:
'
MATLEJOANE
ATTORNEYS
2
HOLLAND STREET KIMBERLEY
8300
Dear
Sir/Madam
YOUR
CLIENT:
NOMSA INNOCENTIA MASEKO
Receipt
of your letter NiMaseko/FS/2019 dated
2019-04-26,
received
in the office of the
National Commissioner/Minister/Provincial
Commissioner on
2019-05-02,
is hereby acknowledged.
Your
letter has been forwarded to the province
in
whose jurisdiction
the
cause of action arose,
with a
view to
investigate
and to attend
to the matter in consultation with the State Attorney concerned.'
[19]
On 20 July
2020 Ms Maseko deposed to a founding affidavit in support of her
application for condonation. She averred that she filed
the required
notice on 26 April 2019 and attached a copy thereof addressed to the
National Commissioner as annexure "NIM1".
She alleged
further that the notice was emailed to both the Provincial and the
National offices of the South African Police Service.
The document
attached as annexure "NIM2" does not show that the notice
was sent to the correct email addresses. It may
therefore be accepted
that the Provisional Commissioner, Free State did not receive a
similar letter of demand directly from Ms
Maseko's attorney, but as
indicated above, the National Commissioner had already acknowledged
receipt of the
demand the previous year.
[20]
Ms Maseko
tried to explain the delay of nearly 16 months by relying on hearsay.
She alleged that her brother, a police officer,
informed her
'early in 2019' of her right to sue for unlawful arrest and
detention. The vagueness of her explanation is evident.
[21]
Ms Maseko made
the point that her claim had not prescribed in terms of the
Prescription Act 68 of 1969
, that the Minister would not suffer any
prejudice if condonation was granted and that she had good prospects
of success in respect
of her claim for unlawful arrest and detention.
[22]
The answering
affidavit on behalf of the Minister was deposed to by a Warrant
Officer stationed at the Provincial Commissioner Free
State in
Bloemfontein, he being the Legal Administrative Officer: Legal and
Policy Services in Bloemfontein. This affidavit was
deposed to and
filed on 2 September
2020.
Notwithstanding the notice of demand of 26 April 2019 attached to Ms
Maseko's founding affidavit, the Minister's deponent
in numerous
paragraphs repeatedly denied that the South African Police Service or
any official thereof ever received any notice
whatsoever
.
[23]
These
allegations cannot simply be swept under the carpet. I quote
these:
[3]
'
4
.
5
The
Respondent,
however,
still
denies
that
the SAPS received any notice.
The Applicant alleges that the notice of
26
APRIL 2019
was
sent by email. The copy of the email which had been attached to the
Applicant's Founding Affidavit does not give any indication
that it
was received by any of the
i
ntended
recipients. Furthermore, it does not indicate the actual email
addresses which were used for the intended recipients
.
4.6
The Applicant
was obliged to send her notice to the
National
Commissioner
of
the SAPS (on behalf of the Respondent) as well as the
Provincial
Commissioner
of the
SAPS
.
I
reiterate that no
notice
was in fact received by any official of the SAPS.
12
.
2
It is
denied
that
the
Applicant's
served
any
notice
..
..
The
Respondent
did not
receive
any
notice
.
13.2
The contents of
annexure "NIM1
"
are noted. It
is
denied
that any official
of
the SAPS
received
such notice
.
14.
Annexure
"NIM2
"
does
not
prove
that
the
notice
was
in
fact
sent
and/or
received
by
the
Provincial Commissioner of
the SAPS
or
the National Commissioner.'
(my
underlining)
[24]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[4]
the
court dealt with the manner in which applications for final relief
should be adjudicated in the following manner:
'[13]
A real
,
genuine and
bona fide
dispute of
fact can exist only where the court is satisfied that the
party who purports to
raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed
.
There will of
course be instances where a bare denial meets the requirement because
there is no other way open to the disputing
party and nothing more
can therefore be expected of him
.
But even that
may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid
for disputing
the veracity or accuracy of the averment.
When
the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer
(or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial
the court
will generally have difficulty in finding that the test is satisfied
.
I say
'generally'
because
factual averments seldom stand apart from a broader matrix of
circumstances
all of which
needs to be borne in mind when arriving at a decision
.
A litigant may
not necessarily recognise or understand the nuances of a bare or
general denial as against a real attempt to grapple
with all relevant
factual allegations made by the other party
.
But when he
signs the answering affidavit, he commits himself to its contents,
inadequate as they may be
.
'
(emphasis
added)
[24]
When the
answering affidavit was deposed to, the Minister
'
s
deponent should have been aware of the fact that the National
Commissioner
had received a
notice and even confirmed receipt thereof. He, a senior official, was
in my view expected to contact h
i
s
colleague at the National Commissioner's office to establish whether
the notice had in fact been received (as it turned out to
be the
case). He apparently decided
not to do
that, but to rely on a misrepresentation that no official in the
whole of the South African Police Service had received
the notice.
[25]
In
my
view,
this
incorrect
allegation
permeates
the
opposition
of
the
condonation
application.
I
say
this,
bearing
in mind
that
the Minister
would
be
fully
entitled
to consent in writing to the institution of legal proceedings without
the required not
i
ce
,
or upon
receipt of a notice which did not comply with the strict requirements
of Act 40 of 2002. The plea was filed on 12 February
2020. Bearing in
mind the waiting l
i
st
for trial actions in this division, the trial could have been
finalised at the end of 2020
,
or the first
half of 2021
.
This is now
three years later and there is still no finality
.
[26]
Inordinate
delays
in
litigating
damage
the
interests
of
justice
as
Didcott
J
pointed out in
Mohlomi
v Minister of Defence
[5]
(Mohlomi).
Logic
dictates that it may be extremely difficult for an organ of state to
deal with a claim instituted against it just before prescription
is
interrupted and without any notice or demand whatsoever. The
authorities are clear. Documentary evidence may not be available
anymore and/or witnesses might have passed on in the meantime and/or
might not be available to testify anymore. But
,
it
is not the purpose of the demand requirement to prevent a worthy
litigant from access to justice in accordance with s 34 of the
Constitution. The purpose was explained as follows by Didcott J in
Mohlomi
[6]
:
'
The
conventional explanation for demanding prior notification of any
intention to sue such an organ of government is that
,
with its
extensive act
i
vities
and large staff which tends to shift
,
it needs the
opportunity
t
o
invest
i
gate
claims laid against it, to consider them responsibly and to decide
,
before getting
embroiled in litigat
i
on
at public expense
,
whether it
ought to accept
,
reject or
endeavour to settle
t
hem
.'
[27]
The
court a
quo
appreciated
that Ms Maseko
'
s
attempts to justify the various delays were weak
.
However,
the prospects of success are a relevant consideration
in
o
r
der
to deal with the requirement
of
good cause for the delay. In line with what Heher
J
A
stated
i
n
Madinda
v Minister of Safety and Security
,
Republic
of South Africa
[7]
(M
adinda
),
Ms
Maseko had to satisfy the court a
quo
that
the Minister had not been u
n
reasonably
prejudiced by the failure to serve the notice timeously. The learned
j
ustice
proceeded in this regard as follows:
'This
mus
t
i
nevitably
depend on the most probable inference to be drawn from the facts
which a
r
e
to be regarded as p
r
oved
in the context of the motion proceedings launched by an applicant.
The approach to the existence of
unreasonable
prejudice
(not simply any level of prejudice
,
an aspect
which the
j
udgmen
t
of
t
he
court a
quo
blurs)
requires a common sense analysis of the facts
,
bearing
i
n
mind that whe
t
he
r
t
he grounds
of
prejudice
exist
often
lies
peculiarly
within
the knowledge
of the
responden
t.
Although the onus is on an
applicant to bring the application within the terms of the statute, a
court should be slow to assume
prejudice for which the respondent
itself does not lay a basis
.
'
[28]
I do not agree
with Adv Wright that the court a
quo
held that
there was an onus on the Minister to show the absence of unreasonable
prejudice. The grounds of prejudice to be relied
upon would be
particularly within the knowledge of the Minister and his officials.
In
casu,
no
allegation has been made on behalf of the Minister that the arresting
officers were not available anymore. Furthermore, the husband
of Ms
Maseko, a Warrant Officer in the South African Police Service, was
the complainant in the case of fraud. His witness statement
as well
as that of his neighbour, alleging that Ms Maseko had committed
theft, were attached to the answering affidavit and there
is no
evidence that any of these two witnesses are not available anymore.
Warrant Officer Maseko and his witness deposed to their
witness
statements on 27 June 2017 (a Tuesday), confirming therein that the
theft had been committed on 30 March 2017,
ie
three
months earlier. Yet, the arresting officers decided to wait until
Friday night, 30 June 2017 to arrest Ms Maseko. Warrant
Officer
Maseko confirmed in his witness statement that protection orders had
been obtained against him by Ms Maseko earlier and
that she was
staying with her
'
kids'
in the informal settlement (apparently in a
'
shanty'
as she referred to her residence).
[29]
Having
considered
all
aspects
mentioned
herein,
I
am
satisfied
that
the
foll wing dictum in
Madinda
[8]
is
apposite
:
'
[29]
One is now in a position to assess the combined weight to be
attributed to the three elements of s 3(4)(b)(i) (ii) and (iii)
which
were established
,
in the context
of the discretion to grant or refuse condonation
.
Given the
absence of unreasonable prejudice to the SAPS from the equation and
the persuasive
,
though not
flawless, reliance on good cause, no court exercising a discretion
unaffected by the m
i
sdirections
which tainted the assessment of the trial judge
,
would have
deprived the appellant of the opportunity to have her claim tested
according to the dictates of law and justice
.
Condonation
should the
r
efore
have been granted
.
It follows
that the appeal must succeed.'
[30]
I am satisfied
that the court a
quo
considered
the relevant circumstances in a balanced fashion. It did not
misdirect itself as to the requirements that Ms Maseko had
to meet in
order to be successful.
[31]
Unlike as the
Supreme
Court
of Appeal ruled in
Madinda
pertaining
to costs and
notwithstanding what I have mentioned above pertaining to the
Minister's right to consent in terms of s 3(1)(b) of
Act 40 of 2002,
I am satisfied that the court a
quo
erred
in making no order as to costs. Ms Maseko sought an indulgence. The
general rule is clear.
The
litigant
seeking
an
indulgence
shall
pay
the
costs
of
the
condonation
application even in the event of they being successful, including the
opponent's costs of opposition, unless the court
finds such
opposition to be unreasonable. Ms Maseko's application for
condonation
deserves to be
severely criticized and was it not for the balanced
approach
to
be
followed,
specifically
pertaining
to
the
prima
facie
good
prospects of success and the lack of proof that the Minister would be
unreasonably prejudiced, the application should have
been dismissed.
There was no sound reason why the court a
quo
refused to
follow the general rule, especially bearing in mind the finding that
the Minister was not unreasonable in opposing the
application and
that he was not a vexatious litigant. It erred in stating that there
were appropriate grounds - without mentioning
any -
that warranted
a deviation from the general rule. Ms Maseko should have been ordered
to pay the Minister's costs of opposition of
the application.
[32]
Consequently,
the appeal should succeed partially only. Although the Minister is
partially successful, I am satisfied that, bearing
in mind what I
have said earlier, no order should be made in respect of the costs of
the appeal. The award of costs was attacked
in the last of seven
grounds of appeal. Very little was submitted in respect thereof in
either the heads of argument or during
oral argument. The Minister
failed in his attempt to obtain the setting aside of the court a
quo's
decision
on the merits of the
condonation
application
.
No order
should be made in respect of the costs of the appeal.
[33]
The following
orders are issued:
1.
The appeal
succeeds in part.
2.
The order of
the court a
quo
is set
aside and replaced with the following
:
2.1
Condonation
is
granted
to
the
applicant
for
failing
to
serve
the
notice
contemplated
in section
3(1)(a)
of the
Institution
of
Legal Proceedings against
Certain
Organs
of State Act
40 of 2002
within the
prescribed period and in accordance with that Act.
2
.
2
The
applicant
shall
pay
the
costs
of
the
application,
including
the
respondent's costs of opposition.
3.
There shall be
no order as to the costs of the appeal.
JP
DAFFUE J
I
concur
JJ
MHLAMBI ADJP
I
concur
ST
MGUDLWA AJ
On
behalf of the Appellant:
Adv
GJM Wright
Instructed
by:
State
Attorney
BLOEMFONTEIN
On
behalf of the Respondent:
No
Appearance
[1]
Jud
g
ment
,
para
13
.
[2]
Para
1.4 of special plea, p 58.
[3]
Answe
r
i
n
g
affi
dav
it,
paras
4.5
,
4.6
,
12.
2,
13.2
and 14
.
[4]
2
008
(3)
S
A
3
71
(
S
C
A
)
para
13
.
[5]
199
7
(1)
SA
124 (CC)
p
ara
11.
[6]
Ibid
p
ara
9.
[7]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA)
p
ara
2
1
.
[8]
Ibid
p
ara
29.