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2024
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[2024] ZAFSHC 276
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Phala v Minister of Safety and Security and Another (6779/2007) [2024] ZAFSHC 276 (3 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
6779/2007
In the matter
between:
MOLALE
D.R. PHALA
Applicant
And
MINISTER
OF SAFETY AND SECURITY
First
Respondent
CAPTAIN
MOHAPI
Second
Respondent
Coram:
Cronje AJ
Heard:
15 August 2024
Delivered:
03 September 2024
Summary
:
Condonation –
Institution
of Legal Proceedings against certain Organs of State Act 40 of 2002
– requirements – section 3(4) – requirements not
met – application dismissed.
ORDER
1.
The application for condonation is dismissed.
2.
The applicant pays the costs of one counsel of
the respondents, to be taxed on Scale B.
JUDGMENT
Cronje
AJ
Introduction
[1]
The
applicant instituted action against the respondents, setting out the
relief he sought under claims A-D. The respondents filed
an amended
plea wherein they relied on a special plea that the applicant did not
comply with s 3(1) of the
Institution
of Legal Proceedings against Certain Organs of State Act 40 of 2002
(the
Act)
.
[2]
The special plea came before Snellenburg
AJ on 19 May 2022. He made the following order:
‘
1.
The First and Second Defendants’ Special Plea of prescription
to claim A in the particulars
of claim is upheld.
2.
The First and Second Defendants’ Special Plea of prescription
to claim B in the particulars
of claim is upheld with regards to the
Plaintiff’s detention on 3 and 4 January 2005.
3.
The First Defendant’s Special Plea regarding the Plaintiff’s
non-compliance with
s 3 of the Institution of Legal Proceedings
against Certain Organs of State Act 40 of 2002 is upheld.
4.
The adjudication of claim B regarding the part of claim for unlawful
detention that has not
prescribed, and claim B of the Plaintiff’s
particulars of claim are suspended pending an application for
condonation in terms
of s 3(4) of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002 which
application must be served
on the First Defendant within 30 days from
date of this order. The Plaintiff must also seek condonation in the
above said condonation
application for the Plaintiff’s failure
to comply with the directive, issued by Daffue J during the pre-trial
hearing on
20 May 2019, that the Plaintiff applies for condonation in
terms of s 3(4) of the Institution of Legal Proceedings against
Certain
Organs of State Act 40 of 2002 before or on 17 June 2019.
5.
If the Plaintiff fails to comply with the order in paragraph 4 above,
claim B and claim D
of the particulars of claim must be deemed to be
dismissed with costs.
6.
The First Defendant shall pay the wasted costs occasioned by the
postponement of the trial
on 26 April 2022.
7.
The Plaintiff shall pay the costs of the suit pertaining to the First
and Second Special
Plea, except the reserved costs referred to in
paragraph 6 above.’
[3]
The judgment of Snellenburg AJ was
delivered on 12 October 2022. Within thirty days of Snellenburg AJ’s
order, the applicant
applied for condonation for non-compliance with
the Act as envisaged in Snellenburg AJ’s order.
[4]
In the founding affidavit, the Applicant
states:
‘
5.1 Section 3
of Act 40 of 2002 requires any applicant to send such notice to the
National Police or Provincial
Commissioner within six (6) months from
date on which the debt arose.
5.2 On 12 July
2005, the Applicant (Plaintiff) sent his notice to the National
Commissioner in Pretoria
who acknowledged receipt of the Notice on 13
July 2005.
5.3 We submit
further that this was part of the bundle handed to the Honourable
Court on the date of hearing
of the Special Pleas. I attach copies of
the documents herein marked annexure “A”.
5.4 It was an
issue placed before the Court during the amendment [sic] of the
Special Pleas that there was
no need for condonation or rather ‘we
need to replicate if we are of the view that it is not necessary to
apply for condonation’.
5.5 The
Applicant felt that there was no need to apply for condonation and
replicated accordingly. I attach
a copy of the replication dated 14
June 2017.
6.
6.1 We
respectfully submit that the Applicant felt there was no need for
condonation as we held the view
that Applicant was detained from 3-12
January 2005, and this formed a continuous act.
6.2 We submit
that we viewed the release of the Applicant being the 12 January
2005, as the period from
which the claim arose.
6.3 The notice
in terms of Section 3 was sent on 12 July 2005 as per the annexure
above, which date we accept
as being within the six (6) months
required by the Act.
7.
In
light of the judgment we seek the Court’s condonation of any
period which is late as it will be at most be not more than
nine (9)
days.’
[5]
It is apparent from the notice of motion
that the Applicant brought the application for condonation for
non-compliance with Act
40 of 2002. The founding affidavit, however,
deals with only some of the three requirements in s 3(4). Those
requirements are:
‘
(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.’
There can be no doubt
that applicant was offered an opportunity to seek condonation, not
only by Daffue J but also by Snellenburg
AJ.
[6]
The respondent states that a rule 37
conference was held before Daffue J on 20 May 2019, in which the
order to apply for condonation
was made. It states that the applicant
now brings this application more than two years after that
directive/order was granted.
It also states that the application is
fourteen years after the respondents first pleaded non-compliance
with the Act. It argues
that the application fails to address, in
detail, the reasons for the lateness of the application, the
bona
fides
of the application, prospects for
success in the main action and prejudice to the respondents.
[7]
In the heads of argument of both parties,
there are various references to case law. I do not deem it necessary
for purposes of this
judgment to deal with them separately. The
orders of Daffue J and Snellenburg AJ remain extant.
[8]
The applicant should have addressed all
the grounds for condonation. Therefore, there needs to be a proper
application for condonation.
Mr Motloung SC argued that applying for
condonation is unnecessary and that the findings of Snellenburg AJ
were incorrect. He argues
that the Applicant, in any event, now
complied with Snellenburg AJ’s order in filing this
application.
[9]
It is common cause that there is no
explanation why the applicant did not comply with the directives
issued by Daffue J. Those directives
were explicitly incorporated in
para 4 of the order of Snellenburg AJ.
[10]
If the applicant was dissatisfied with the
order of Snellenburg AJ, which incorporated Daffue J’s
directive, the correct approach
would have been to issue an
application for rescission or an appeal against the directive of
Daffue J and an appeal against the
order of Snellenburg AJ. This
application is neither. I, therefore, conclude that the applicant has
not made a case for condonation.
The
order:
[11]
Wherefore I make the following order:
1.
The application for condonation is dismissed.
2.
The applicant pays the costs of one counsel of the respondents, to be
taxed on Scale B.
CRONJÉ,
AJ
Appearances:
For
the Applicant
Adv
S E Motloung SC
Instructed
by:
Qwelane
Theron Van Niekerk
Bloemfontein
For
the Respondents:
Adv
L Manye
Adv
N M Seleso
Instructed
by:
Office
of the State Attorney
Bloemfontein