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2024
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[2024] ZAFSHC 195
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Mathopo v Minister of Police and Another (4391/2022) [2024] ZAFSHC 195 (10 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION
,
BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case
Number: 4391/2022
In
the matter between:
TEFO
STEPHAN MATHOPO
Applicant
and
MINISTER
OF
POLICE
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
Second
Respondent
In
re:
TEFO
STEPHAN
MATHOPO
Plaintiff
and
MINISTER
OF
POLICE
First
Defendant
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
Second
Defendant
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
7 MARCH 2024
DELIVERED
ON:
10 JUNE 2024
This
judgment was handed down in open court and distributed to the parties
by way of electronic communication.
[1]
This is an
opposed application for condonation in terms of section 3(4) of the
Institution of Legal Proceedings against Certain
Organs of State Act,
40 of 2002 ('the Act'). The applicant is the plaintiff in the main
action ('the main action') under case number
4391/2022 and the first
respondent is the first defendant, whilst the second respondent is
the second defendant in the main action.
For sake of clarity I will
refer to the parties as in the main action.
[2]
The plaintiff
instituted action against the defendants, respectively the Ministers
of Police and Public Prosecutions, on 9 September
2022 (served on the
defendants during October 2022), claiming damages for his alleged
unlawful arrest and detention. The defendants,
having filed its
notice of intention to defend, only filed its plea on 17 May 2023. In
his particulars of claim plaintiff avers
that, prior to the
institution of the proceedings, he duly complied with the provisions
of the Act.
[3]
First
defendant however raised a special plea of non-compliance and averred
that the notice in terms of s 3(1)(a) ['the notice']
was due on 3
August 2019. No such a special plea was filed on behalf of second
defendant. It is common cause that the notice was
given by registered
post on 22 April 2022 (Annexures 'TSM1' and 'TSM2' to the plaintiffs
founding affidavit).
[4]
The
first defendant contended that, although the plaintiffs claim against
it had not prescribed, the notice was filed late for a
considerable
period of time as the cause of action for the plaintiff's averred
unlawful arrest had arisen on the date of his arrest.
During argument
I was referred to a judgment by myself being the unreported judgment
of
Mothobi
Albert Tlake v The minister of
Police
and Another.
[1]
Counsel
for the first defendant invited my attention
to
a recent judgment in this division,
Phala
v Minister of Safety and Security
and
Another
.
[2]
Having
considered the authorities referred to in the latter judgment, I
shall approach this matter on the basis that the applicant
needs
condonation as is the purpose of the application before me.
[5]
The plaintiff
avers that on 4 February 2019 he was arrested without a warrant for
his arrest on a charge of rape where after he
was detained. A bail
application was unsuccessful and he remained in custody until his
acquittal on 6 April 2022 in terms of
section 174
of the
Criminal
Procedure Act 51 of 1977
. According to the plaintiff he obtained a
new legal representative during April 2021, who is the
plaintiff's
.
attorney
of record herein. Plaintiff avers that only on 6 April 2022 after
consultation with the attorney, did he realise that he
had a claim
against the defendants at which time the attorney advised him of the
prescribed notice that would have to be send.
The notice was
drafted on 21 April 2022 and send by registered post on 22 April
2022. As no answer came forth, the summons as mentioned
was issued.
The plaintiff, having been met with a special plea, approached this
court for condonation.
[6]
The first
defendant in its opposing papers complains of the lengthy delay,
avers that the plaintiff's version is not a reasonable
explanation
and that the plaintiff hasn't shown good cause for its delay. It
admits the plaintiff's allegations of being arrested,
his detention
and appearances in court. It concedes that the plaintiff was
discharged in terms of
section 174
of the CPA. In response to the
allegations by the plaintiff that he was wrongfully and unlawfully
arrested by members of the first
defendant and unlawfully detained,
first defendant denies the arrest and detention to be unlawful and
states that same would be
justified during the civil trial. It denied
that its employees laid charges against plaintiff based on false
information.
[7]
Section 3 (4)
of the Act provides for condonation and reads as follow:
(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)
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.
(c)
...
[8]
It
was held in
Madinda
v Minister of Safe
ty
and
Securi
ty
[3]
,
that
the court may grant an application for condonation if satisfied that
the three requirements have been
met.
The
test
in
doing
so
are
not
proof
on
a
balance
of
probabilities,
but
"the
overall im
p
ression
made
on
a
court
which
brin
g
s
a
fair
mind
to
the
facts
set
u
p
b
y
the
p
arties."
(emphasis
added)
8.1
The
requirement of 'good cause' involves an examination of
'all
those
factors
which bear on the fairness of
g
rantin
g
the
relief
as
between
the
p
arties
and
as affectin
g
the
p
ro
pe
r
administration of
j
ustice'
,
and may include, depending on the circumstances, 'prospects of
success in the proposed action, the reasons for the delay, the
sufficiency of the explanation offered, the bona fides of the
applicant, and any contribution by other persons or parties to the
delay and the applicant's responsibility therefore.'
[4]
(emphasis added)
8.2
Heher JA held
at para [12] that good cause for delay is not
'simply
a mechanical
matter of cause and effect' but involves the court in deciding
'whether the applicant has produced acceptable reasons
for
nullifying, in whole, or at least substantially, any culpability on
his or her part which attaches to the delay in serving
the notice
timeously'
;
and in this
process, '[s]trong merits may mitigate fault; no merits may render
mitigation pointless'
.
"
See
also:
Minister
of Agriculture
and
Land Affairs v CJ Ranch
(P
ty)
Ltd
[5]
[9]
Applying the
above principles to the merits of the application I am inclined to
grant the condonation sought by the plaintiff. It
is not contested
that the plaintiff's claims against the defendants had not prescribed
at the time
when the action
was
instituted. I do not find the plaintiff's explanation so unconvincing
that I should reject it. Shortly after having been acquitted
the
proposed notice was send to the defendants giving corroboration for
his version of when he gained knowledge of the prescribed
notice.
Although
the onus is on the plaintiff to show that the defendants had not been
unreasonably prejudiced, the defendants do not complain
of any
prejudice. On the contrary, the first defendant avers that at the
trial it will show that the arrest and detention were
lawful and
justified. There is no denial in first defendant's answering
affidavit to the plaintiff's averment that the defendants
had been in
a position to file a plea with sufficient detail to set out its
defence despite the late filing of the notice. In fact,
the
defendants pleaded in the main action that Constable Pule Patrick May
was the arresting officer who had "formed a reasonable
suspicion
that the Plaintiff was involved in the commission of a Schedule 1
offence and arrested him." In my view plaintiff
did not display
a flagrant disregard for the provisions of the Act, nor are any of
his actions indicative of him not having an
interest in proceeding
with his intended legal action against the defendants. Taking into
account all relevant considerations,
I am satisfied that the
plaintiff has shown good cause for his failure to timeously give the
notice as prescribed by the Act.
[10]
The plaintiff moves for an indulgence which would normally result in
liability for payment of the costs of the application.
I am, however,
of the view that in proceedings of this nature where a litigant is
not vexatious but approaches the court to vindicate
his alleged
claims for damages, such a cost order would not be warranted. The
defendants (more specifically the first defendant)
however in my view
was not unreasonable in opposing the application. I deem an
appropriate cost order to be that each party be
liable for its own
costs (inclusive of the cost which stood over for later adjudication
on 22 February 2024)
[11]
I therefore make the
following orders:
11.1
Condonation
is
granted
for
the
applicant's
failure
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
period
laid down in
section 3(2)(a) of the Act.
11.2
Each party to
pay its own costs.
C REINDERS, J
On
behalf of the Applicant:
Adv. NM Bahlekazi
Instructed
by:
Lengau Attorneys
c/o Mpobole & Ismail
Attorneys
BLOEMFONTEIN
On
behalf of the First Respondent:
Adv. NM Seleso
Instructed
by:
State Attorneys
BLOEMFONTEIN
[1]
[377/2014]
FSHC (20 October 2017).
[2]
(6779/2007)
[2022] ZAFSHC 263
;
[2023] 1 All SA 227
(FB) (12 October 2022).
[3]
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA) at para
[8]
.
[4]
At
para [10].
[5]
2010
(4) SA 109
(SCA) at para [37].