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2024
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[2024] ZAFSHC 190
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Moletsane v Minister of Police and Another (4256/2023) [2024] ZAFSHC 190 (14 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Case
No. 4256/2023
In
the matter between:
MOLEKE
DANIEL MOLETSANE
APPLICANT
And
MINISTER
OF POLICE
FIRST
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
SECOND
RESPONDENT
CORAM:
MAJOSI, AJ
HEARD
ON:
23 MAY 2024
DELIVERED
ON:
14 JUNE 2024
JUDGMENT
INTRODUCTION
[1]
The applicant
seeks an order condoning the late notification to institute
legal
proceedings
against the
respondents
in
terms of section 3 of the Institution of
Legal
Proceedings against Certain Organs of State Act 40 of 2002 (the
Act"). The application is opposed.
II
BACKGROUND
[2]
The
applicant, a policeman stationed at Brandfort, was arrested on the 4
of September 2020 in Kroonstad, Free State on charges of
obstructing,
interfering and hindering members of the South African Police Service
in execution of their duties. He was granted
bail on 7 September 2020
and the trial commenced on 16 May 2022. On the 26 May 2022, he was
found not guilty.
[1]
[3]
On
15 January 2021, a notice in terms of section 3 of the Act was sent
via registered mail to the first respondent. A further notice
was
sent to the second respondent by the same means on the 24 of May
2023. Summons was then issued on the 14 of August 2023 and
served on
the respondents by the sheriff.
[2]
The Respondents filed a notice of intention to defend on the 11
September 2023 and thereafter, a special plea raising the applicant's
non-compliance with section 3 the of the Act and plea to the
particulars of claim on the 19 of October 2023.
[4]
In
replication, the applicant pleaded that the said notice for the first
respondent was served within the prescribed period. It
was admitted
that the notice in respect of the second defendant was six months
late and requested condonation failing which, a
substantive
application would be brought before court. Needless to say, the
applicants were not granted the indulgence, hence the
application is
before this court for adjudication.
[5]
The applicant
alleged in the founding affidavit that he is a lay person in law and
does not have the requisite knowledge
of the Act or
its provisions as his level of education does not extend to tertiary
level. He also mentioned that his sole reason
for instructing his
attorneys from
the onset was
to
ensure
that he
is
found
not
guilty during the criminal proceedings as his court attendance was
over a period of two years. He was advised that he can institute
a
claim against the first respondent hence the relevant notice was sent
without any issues.
[6]
It was only
after he was acquitted and his recovery from the trauma did he
consult with his criminal trial lawyers who in turn referred
him to
his current attorneys. After consultation with them in May 2023, he
was advised that he may also institute a claim against
the second
respondent for malicious prosecution.
[7]
Armed with
this knowledge, he gave an instruction for them to proceed with the
claim and subsequently
learned that
the second respondent would also have to be notified about the
impending legal action. His current attorneys then caused
a statutory
notice to be sent out to the second respondent via registered mail on
24 May 2023 and also via email on the 23 May
2023, which was six
months later than what is required.
[8]
After the
defendants filed their special plea and plea on 19 October 2023 in
the main action, the applicant addressed a letter to
the respondents
requesting condonation for the late filing of the notice and this was
sent via email on the 6 of December 2023.This
was in addition to
their earlier replication dated the 30 of November 2023.
[9]
It was alleged
by the applicant that copies of the police docket had not yet been
provided and in all likelihood, an application
to compel the
respondents would have to be brought to assist in their trial
preparation in the main action and that the respondents
would not
suffer any prejudice as the arrest, detention and prosecution took
place from 2020 to 2022.
[10]
It was also asserted that the undisputed fact remains that the
verdict of not guilty is indicative of the
fact that he has good
prospects of success in the main action as there were no facts to
support his arrest without a warrant. In
any event, he, as the
plaintiff in the main action, bears the onus at trial that he was
maliciously prosecuted after
his
unlawful
arrest and detention and that there will be no prejudice to the
respondent should the court grant condonation.
[11]
The
respondents contended in the answering affidavit that the applicants
cause of action would for the first respondent would have
arisen
already on the 4 of September 2020 and that the notice that was
served on the 15 of January 2021 as attached to the founding
affidavit, had no actual proof that it was sent via registered post.
This is due to the fact that the said slips did not indicate
if it
relates to this specific case.
[3]
[12]
The
Respondents
alleged
that the applicant failed to provide an explanation for the delay or
show good cause as required for his failure to give
notice within the
prescribed six months period and that the prospects of success is not
addressed in his application
[4]
as this was a clear indication that they had none.
[5]
It was then submitted that the application be dismissed with costs
onnan attorney client scale
.
Ill
DISCUSSION
[13]
Section 3(1)
of the Act states that no legal proceedings for the recovery of debt
may be instituted against an organ of state unless
the creditor has
given it notice in writing of his or her intention to institute legal
proceedings or the organ of state has consented
thereto in writing
and determines that it must be sent within six months from when the
date became due together with the facts
giving rise to the debt and
that such particulars are within the knowledge
of the
creditor
.
[14]
Section 3(4)
of the Act states as follows:
(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)
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)
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."
[15]
In Madinda v
Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
SCA, Heher JA stated
the following at 317 B -
E
"
...
Good cause for the delay' is not simply a mechanical matter of cause
and effect. The court must decide 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. Strong merits may mitigate fault; no merits may
render mitigation pointless.
There
are two main elements at play ins
4(b), viz the
subject's right to have the merits of his case tried by a court of
law and the right of an organ of state not to be
unduly prejudiced by
delay beyond the statutorily prescribed limit for the giving of
notice
.
Subparagraph
(iii) calls for the court to be satisfied as to the latter.
Logically,
subparagraph
(ii) is directed, at least
in
part, to
whether the subject should be denied a trial on the merits.
If
it were not so, consideration of prospects of success could be
entirely excluded from the equation on the ground that failure
to
satisfy the court of the existence of good cause precluded the court
from exercising its discretion to condone. That would require
an
unbalanced approach to the two elements and could hardly favour the
interests of justice. Moreover, what can be achieved by
putting the
court to the task of exercising a discretion to condone if there is
no prospect of success?
In
addition, that the merits are shown to be strong or weak may colour
an applicant's explanation for conduct which bears on the
delay: an
applicant with an overwhelming case is hardly likely to be careless
in pursuing his or her interest, while one with little
hope of
success can easily be understood to drag his or her heels. As I
interpret the requirement of good cause for the delay,
the prospects
of success are a relevant consideration"
[16]
Counsel
for the applicant and the respondents in their respective heads of
argument provided the court with an expansive list of
relevant case
law. I will not repeat it in this judgment save to mention that both
counsel referred me to
the
locus
classicus
of
Madinda
supra
as
well as the case of Premier
Western
Cape v Lakay
[6]
which deals with
the issues
in
casu.
[17]
It is common
cause that the respondents do not take issue with the debt being
extinguished by prescription. The notice to the first
respondent
appears to have been given within the prescribed period. The
respondents however indicate that the said notice was never
received
and the registered mail slips do not show that they specifically
relate to this case.
[18]
I am not in
agreement with this assertion. Upon perusal of the said notice dated
15 January 2021 and the registered slips attached,
the very same
reference number appears namely F03292 which appears on the notice to
the first respondent substantially corresponds
with the registered
post slips. Though I accept that it ought to have been done for all
three slips, it is apparent that all three
were posted on the same
date with their individual reference numbers and it is directed to
three different offices of the first
respondent.
[19]
Both
parties are
ad
item
that
the notice to the second respondent was late by six months although
the second respondent denies ever receiving it.
[7]
The statutory notice is dated the 22 May 2023 has a reference number
listed as W2743.
[8]
Further
perusal of the letter indicates that it was sent out via email and
registered post.
[20]
The attached
email indicates that it was sent on Tuesday, the 23 May 2023 at 08h33
to a recipient at National Prosecuting Authority.
The registered
letter according to the post office stamp from Menlo Park was sent
out on 24 of May 2024 with a tracking number.
Both also reflect the
very same reference number to be W 2743. In my view there can thus be
no question that the statutory notice
to the second defendant was
sent out either
.
[21]
The point of
contention is if the applicant has shown good cause and if the
respondents are unreasonably prejudiced by his failure
to deliver the
statutory notice. It is apparent from the founding affidavit that the
applicant only approached his current attorneys
of record offices in
May 2023 after being referred by his previous attorneys who handled
his criminal case.
[22]
It was only
then we he was made aware he may have a claim against the second
respondent.
Now it is no
secret that there is a period
of almost
a year in
between the not guilty verdict and him approaching the second set of
attorneys in May 2023 and that the actual period
of lateness is a
mere six months.
[23]
Ordinarily, a
more detailed explanation would have been preferable. It was however
stated that it was the lack of legal knowledge
on his part which
caused the notice to be served late on the second respondent. His
initial attorneys also did not have the requisite
knowledge that a
claim for malicious prosecution may be instituted as this information
was only obtained from his current attorneys
of record who according
to him, are specialists in the field.
[24]
The actual
notice to the second respondent as annexed to the founding affidavit
reveals that the second respondent was informed
of the fact
representations were made to the senior control prosecutor that there
was no prima facie case against the applicant
and the witness
statements contained in the docket as marked A1 and A2 were defective
and not properly commissioned.
[25]
In my view,
the explanation provided is sufficient considering that the notice to
the second respondent is not for an extended period
but a mere six
months. The undisputed fact remains that the verdict of not guilty is
may be indicative that he has good prospects
of success in the main
action as there were no facts to support his arrest without a warrant
or his eventual prosecution by the
second respondent after dismissing
defence representations. It thus cannot be said that no good cause
has not been shown to exercise
the discretion provided for in the
section 3(4) of the Act.
[26]
The only issue that remains is if the respondents would be
unreasonably prejudiced by the applicant's failure
to deliver the
statutory notice within the prescribed period. The applicant averred
that the respondents will not suffer any unreasonable
prejudice as
the onus rests on him to prove its case on a balance of
probabilities. If condonation is not granted, he is likely
to suffer
more prejudice as he will not have access to justice and this is
compounded by the fact that the contents of the docket
has not yet
been provided in order for him to prepare effectively for trial.
[27]
This would then also
entail that he would have to incur further costs in court to compel
the respondents to provide him with the
required information and
other information which may be relevant to his claims against the
respondents. It is the applicant's
case
that he was
wrongfully
arrested
and
detained
without
a warrant
and
that
the
second
respondent
did
not
properly
exercise
their
.
discretion
in their
decision to
proceed
to
trial. With him being
acquitted
of all charges
shows
that
they
did
not
have
evidence
against
him
that
justified
prosecution.
In
my
view,
this
is
linked
to
his
likely
prospects
of
success
as highlighted
herein above.
[28]
The respondents have not indicated in their founding affidavit that
their witnesses are no longer available
or that they no longer have
the contents of the docket including the investigating diary. It is
also not known if they are unable
to consult with the senior
prosecutor who declined defence representations made before the trial
commenced. In the absence thereof,
I cannot conclude that they will
suffer unreasonable prejudice.
[29]
In the prevailing circumstances alluded to herein above, I hereby
find this debt has not been extinguished
by prescription, that the
applicant has shown good cause for his failure to serve the notice
and timeously and that the respondents
will not be unreasonably
prejudiced.
[30]
It is trite
that the costs follow the result. The parties have stated that costs
should be awarded on an attorney and client scale.
I am not persuaded
that such a scale is appropriate in these circumstances considering
the simplicity of the issues herein. Costs
will thus be awarded on a
party and party scale.
IV
ORDER
[31]
Accordingly, I
make the following order:
1.
Condonation is
granted for the applicant's failure to serve the notice contemplated
in terms of
section 3(4)
of the
Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002
.
2.
The
Respondents
shall pay the
cost of this application on a party and party scale, jointly and
severally, the one paying the other to be absolved.
MAJOSI
OR, AJ
Appearances
On
behalf of the Applicant
Adv.
G.S.J Van Rensburg
Instructed
by:
c/o
Jacobs Fourie Attorneys
BLOEMFONTEIN
On
behalf of the Respondents
Adv.
Phakama
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Founding
affidavit paragraph 6.
[2]
Ibid,
paragraph 5.
[3]
Respondents
Answering
affidavit, paragraphs 11 -13.
[4]
Ibid,
paragraphs 6-
8.
[5]
Ibid
paragraphs 20 -
22.
[6]
2012(2)
SA 1
(SCA).
[7]
Answering
affidavit, paragraph 15.
[8]
Indexed
bundle P63, Annexure B