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2024
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[2024] ZAFSHC 242
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Ntsane v Minister of Police and Another (1839/2022) [2024] ZAFSHC 242 (12 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 1839/2022
In
the matter between
NTSANE
NATHANIEL TLADI
APPLICANT
And
MINISTER
OF POLICE
FIRST
RESPONDENT
THE
DIRECTOR: NATIONAL PROSECUTING
AUTHORITY
SECOND
RESPONDENT
Neutral
citation:
NTSANE v MINISTER OF
POLICE & ANOTHER
(1839/2022)
Coram:
MAHLANGU AJ
Heard:
1 AUGUST 2024
Delivered:
This judgment was handed down electronically by
circulation to the parties’ representatives by email and
released to SAFLII.
The date and time for hand-down is deemed to be
at 14h30 on 12 August 2024
Summary:
Civil procedure – non-compliance with s 3 of
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
- Condonation of the late service of the notice of
intention to institute legal proceedings in terms of
section 3.
ORDER
1.
The condonation application in terms of Act 40 0f 2002 is granted.
2.
The first respondent to pay costs on a party and party scale A.
JUDGMENT
MAHLANGU
AJ
INTRODUCTION
[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 instituted an action
against the respondents on 22 December 2021, claiming damages for his
alleged unlawful arrest and detention, and malicious prosecution.
In
his particulars of claim, the applicant avers that he duly complied
with the provisions of the Act.
BACKGROUND
FACTS
[2]
The applicant was arrested on 4 October 2019. He appeared in court on
4 October 2019 where his
matter was postponed on several occasions.
He remained in custody until the matter was struck from roll on 2
July 2021. Upon his
release, he consulted with a legal representative
after which a notice was served on the respondents on 22 December
2021. The notice
was served via email as well as physical service.
[3]
The respondents served the applicant with the notice to defend the
action on 19 May 2022. On 22
June 2022, the applicant brought an
application to bar the respondent in terms of rule 27 of the Uniform
Rules of Court, for their
failure to file their plea. Subsequent to
the notice to bar the respondents, they filed their plea on 25 June
2022. A special plea
was raised denying that the applicant complied
with the provisions of s 3(1) of the Act in that the applicant failed
to give written
notice of claim within six months from the date on
which the cause of action arose as required by the Act.
[4]
The applicant brought this application
which was opposed by the first respondent on the basis that the
applicant has failed to establish
good cause for his non-compliance
with the Act and has failed to prove that the first respondent will
not suffer unreasonable prejudice
due to the delay in serving them
with the required notice. The first respondent further submitted
that, the applicant does not
deal with the good prospect of success
on the merits of the claim and that he does not take this court into
his confidence by accounting
with proper detail and clarity on why
such an undue delay occurred after he was released on 2 July 2021.
LEGAL
PRINCIPLES
[5]
Section 3(1)
(a)
provides that no legal proceedings for the
recovery of a debt may be instituted against an organ of the State
unless the creditor
has given the relevant organ of State notice, in
writing, of its intention to institute the legal proceedings in
question. Section
3(2) of the Act provides that the notice
contemplated in section 3(1)
(a)
of the Act must be delivered
or served upon the organ of State in question ‘within six
months from the date on which the
debt became due’.
[6]
In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[1]
the following was stated:
‘
The
conventional explanation for demanding prior notification of
intention to sue organs of State is that “with its extensive
activities and large staff which tends to shift, it needs the
opportunity to investigate claims laid against it, to consider them
responsibly and to decide before getting embroiled in litigation at
public expense, whether it aught to accept, reject or endeavour
to
settle them.”’
[2]
CONDONATION
[7]
Section 3(4)
(b)
of the Act provides that a court may grant an
application for condonation 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.’
The
court must be satisfied the applicant has satisfied all the three
requirements as they are conjunctive. In
Madinda
v Minister of Safety and Security
[3]
(
Madinda
)
the Supreme Court of Appeal held that ‘The structure of a s
3(4) is now such that the court must be satisfied that all three
requirements have been met. Once it is so satisfied the discretion to
condone operates according to the established principles
in such
matter, as to which see e.g
United
Plant Hire (Pty) Ltd v Hills and others
1976 (1) SA 717
(A) at 720 E-G. . .’
[4]
A similar view was expressed in the
Minister
of Safety and Security v De Witt
[5]
(
De
Witt
)
where the following was mentioned:
‘
The
discretion may only be exercised, however, if the three criteria in s
3(4)(b) are met: that the debt has not been extinguished
by
prescription (at issue in this case); that good cause exists for the
creditor’s failure; and that the organ of state has
not been
unduly prejudiced.’
[6]
[8]
Counsel for the first respondent relied on
De Witt
where the
following was held:
‘
In
Legal Aid Board Theron J concluded that because s 3(1) is couched in
peremptory terms, a court has no power to condone a failure
to serve
a notice prior to the creditor’s institution of action. Her
finding that “The court does not have the power
to condone the
institution of legal proceedings in circumstances where the
provisions of s 3(1) have not been complied with”
is in my
view, incorrect. It fails to take into account the purpose of
condonation which is to forgive non-compliance or faulty
compliance
provided that the criteria in s 3(4)(b) are met and does not accord
with an earlier statement in the judgement that
s 3(4)(a) “confers
upon the creditor the right to apply for condonation of the failure
to comply with the provisions of s
3(1).”’
[7]
[9]
The applicant was detained for a period of 21 months. He was only
able to consult with his legal
representatives upon his release from
custody. The notice in terms of the Act was served on the respondents
after the consultation.
According to the applicant, his legal
representative was of a view that the cause of action arose on the
date he was released.
I am therefore of a view that the applicant
cannot be denied an opportunity to claim against the respondents
because of the mistake
made by his legal representative.
PRESCRIPTION
[10]
The claim against the respondent has not prescribed. The applicant
was arrested on 4 October 2019. The notice in terms of the
Act was
served on the respondents on 22 December 2021. It is therefore my
view that this claim has not prescribed.
GOOD
CAUSE
[11]
It is the applicant’s contention that the attorney who issued
the notice in terms of the Act was convinced
that it had been
effected within six months as required by
s 3 of the Act. The
applicant’s attorney only became aware that the notice was not
served in terms of the Act after being
served with a special plea.
The applicant’s attorney submitted that he was always of a view
that the cause of action arose
on 21 July 2021 after the applicant
was released from custody.
[12]
In
Mandinda
the Court held:
‘“
Good
cause” looks at all those factors which bear on the fairness of
granting the relief as between the parties and as affecting
the
proper administration of justice. In any given factual complex, it
may be that only some of many of such possible factors become
relevant. These may include prospects of success in the proposed
action, the reason 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.’
[8]
The
standard of proof is, therefore, not one on balance of probabilities
but can rather be found in the ‘the phrase “if
[the
court] is satisfied in Section 3(4)
(b)
has long been recognized 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.”.’
[9]
[13]
Good cause also involves a consideration of the prospects of success
on the merits of the case. It the first
respondent’s submission
that the applicant was arrested and detained for rape. The applicant
only relied on the mistake made
by his legal representative that, the
legal representative thought the cause of action arose after his
release from custody. Although
there might be criticism levelled
against the applicant for his failure to address the merits of this
matter, I am satisfied that,
his failure to serve the notice in terms
of the Act is not his fault. It is my view that it is only fair not
to punish the applicant
for the negligence caused by his legal
representative.
[14]
The first respondent submitted that the applicant’s condonation
application was made 22 months after
he was served with a special
plea. It was another delay made by the applicant after he became
aware of the special plea. To this
end, the Court in
Madinda
held
the following:
‘
One
other factor in connection with “good cause” in s
3(4)
(b)
(ii)
is this: it is linked to his failure to act timeously.
Therefore,
subsequent delay by the applicant, for example in bringing his
application for condonation, will ordinarily not fall
within its
terms.
Whether a proper explanation is furnished for delays that did not
contribute to the failure is part of the exercise of the discretion
to condone in terms of s 3(4), but it is not, in this statutory
context, an element of “good cause”. This is a
distinction
which the learned judge did not draw or maintain and I
think he was wrong not to do so.’
[10]
(Emphasis added.)
[15]
The applicant consulted the attorney after being released from
custody. The attorney issued a notice in terms
of the Act. I am of a
view that the failure to comply with the Act by the applicant should
not deny the applicant the opportunity
to claim against the
respondents. The delay to file the application for condonation can
also not be used against the applicant.
[16]
Applying the principles mentioned above, I am inclined to grant such
condonation. It is not contested that
the claim against the first
respondent had not prescribed at the time when the action was
instituted. I have been satisfied that
the applicant 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 respondents.
PREJUDICE
[17]
It is trite that the applicant must establish the absence of
unreasonable prejudice. The onus is on the applicant
to set out, in
some detail, that the respondents would not suffer any unreasonable
prejudice as a result of the delay. 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 basis. The legislature specifically requires that
a court must consider whether the
organ of State is not unreasonably
prejudiced by the failure to comply with the provisions of section 3.
[18]
In
Madinda
explained this as follows:
‘
But
in this Act the legislature has deemed it appropriate to treat
absence of
unreasonable
prejudice as a specific factor of which an applicant must satisfy the
court. The identification of separate requirements of good
cause and
absence of unreasonable prejudice may be intended to emphasis the
need to give due weight to both the individual’s
right of
access to justice and the protection of state interest in receiving
timeous and adequate notice.’
The applicant therefore
has to satisfy the court that the failure to serve the notice on time
had not unreasonably prejudiced the
respondent. It was the
respondent’s contention that, the applicant did not give the
proper explanation of the delay and would
therefore be inherently
prejudiced because of the long delay. In addition, some of the
witnesses might also not be available to
testify in this matter.
[19]
Notwithstanding the above, I am of the view that the error did not
occur as a result of the applicant’s conduct. It would
be
unreasonable to punish the applicant for a mistake perpetrated by his
legal representative, which amounted to an infringement
of his
constitutional rights. In the circumstances, I have been persuaded
that good cause exists for the granting of the condonation.
CONCLUSION
[20]
I find no reason to deviate from the general practice with regard to
costs. The applicant argued that the costs be costs in
the main
action. It was the first respondent’s argument that the
application be dismissed with costs. I am of a view that
the costs
should follow the results and that the respondents pays the costs.
[21]
In the result, the following order is therefore made:
1. The condonation
application in terms of Act 40 of 2002 is granted.
2. The first respondent
to pay costs on a party and party scale A.
MAHLANGU
AJ
On
behalf of applicant:
Adv N
Van Der Sandt
Instructed
by:
Azar
& Havenga Attorneys
65
Park Road, Unit 6
Willows
Bloemfontein
On
behalf of first respondent:
Adv
AS Boonzaaier
Instructed
by:
State
Attorney, Bloemfontein
11
th
Floor, Fedsure Building
Charlot
Maxeke Street
Bloemfontein
[1]
In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[2010] ZASCA 27; 2010 (4) SA 109 (SCA).
[2]
Ibid para 13.
[3]
Madinda
v Minister of Safety and Security
[2008]
ZASCA 34; 2008 (4) SA 312 (SCA).
[4]
Ibid para 16.
[5]
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA).
[6]
Ibid
para 13.
[7]
Ibid para 17.
[8]
Footnote 3 para 10.
[9]
Ibid
para 8.
[10]
Ibid para 14.