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[2024] ZAFSHC 288
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Motaung v Minister of Department of Police and Another (1308/2021) [2024] ZAFSHC 288 (12 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Reportable/
Not reportable
Case
no:
1308/2021
In
the matter between
TSHEPANG
POELLO DAVID MOTAUNG
APPLICANT
And
THE
MINISTER
OF
DEPARTMENT
OF
POLICE
1
ST
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
2
ND
RESPONDENT
Neutral
citation
:
Tshepang
Poello
David
Motaung
v
The
Minister
of
the
Department of
Police And Another
Coram:
T L
MANYE,
AJ
Heard:
16 MAY 2024
Delivered:
12 SEPTEMBER
2024
Summary:
Civil
Procedure
-
non-compliance
with
section
3
of
the
institution
of
legal
proceedings against certain
organs
of
state
-
application
for condonation
ORDER
1.
Condonation
application
for non-compliance with the provisions
of Section 3
of Act 40 of 2002, is granted.
2.
The Applicant
to pay the taxed party and party costs on scale B.
JUDGMENT
TL
MANYE, AJ
INTRODUCTION:
[1]
This
is an application for condonation in terms of Section 3(4)(b) of the
Institution of Legal Proceedings against Certain Organs
of State.
[1]
In
casu,
the
Applicant instituted action proceedings against the Respondents on
25
th
March 2021 claiming damages for his unlawful arrest without a
warrant, detention, and malicious prosecution.
[2]
The
Applicant in his particulars of claim alleges compliance with the
provisions of Section 3 in that a proper notice was delivered
to the
First and Second Respondent prior to the institution of action
proceedings and as such the Applicant has complied by delivering
the
notice in terms of the Act.
[2]
[3]
The
Respondents
for
their
part
opposed
this
application
for
condonation
in
terms
of
Section 3(4)(a) of Act 40 of 2002.
[3]
BACKGROUND:
[4]
The Applicant
was allegedly unlawfully arrested on 31
st
March
2018.
He
was thereafter detained at Bayswater police station for allegedly
having committed the offence of rape.
[5]
He appeared in
Court on 3 April 2018 for bail application which was denied with the
result that he remained
in
further
detention.
He
once again appeared in court on the 24
th
April
2018 for another bail application which was opposed and was denied
resulting in the Applicant remaining in further detention.
Applicant
was eventually granted bail on the 22
nd
June
2018.
[6]
It
is
not in dispute
that during the criminal trial on the charge of rape on the 5
th
August 2018 the Applicant was found not guilty for alleged offence of
rape and was acquitted.
[7]
After his
acquittal on the 23
rd
October
2018 the Applicant was dismissed from employment with the First
Respondent following internal disciplinary proceedings against
him.
After his
dismissal Applicant sought to pursue and declared an unfair labour
dispute supposedly for his dismissal from employment
with the First
Respondent. The pursuit of a labour dispute continued from 2018 after
his release where he was assisted by the legal
representative that
had assisted him with the criminal case. This legal representative
referred the Applicant to another attorney
who would be able to
assist him with a labour dispute. It appears that the Applicant had
to go through two (2) attorneys both in
2018/2019 before eventually
ending up with the current attorney of record and the deponent to
this founding affidavit on the 5
th
February
2021.
[8]
The deponent
to the founding affidavit states that on the 12
th
February 2021 after a formal Power of Attorney was concluded and as a
consequence
of
consultation,
the
Applicant
was
advised
that
he
may
have a
claim
against
the
Respondents.
[9]
It was only
then that the current attorney of record was instructed to proceed
with these proceedings.
[10]
According to the deponent to the founding affidavit the Power of
Attorney to proceed with these proceedings
was only received on the
12th February 2021. In paragraph 47 of the founding affidavit the
deponent alleges that the statutory
notice was delivered on the 5th
February 2021 less than six (6) months after the initial consultation
with the Applicant. I pause
to have regard to the discrepancy in
relation to when the first consultation took place and when the
statutory notice was issued.
The Respondents in the answering
affidavit did not take issue with the discrepancy in my view
correctly so as it would not take
the matter any further.
[11]
The deponent
states further in paragraph 49 of the affidavit that in the event
that this Honourable Court finds that the Applicant
did/ought
reasonably to have had knowledge of the facts giving rise to the debt
and identity of the debtor at an earlier stage,
the Applicant seeks
condonation for the late filing of the statutory notice.
[12]
Section
3(3)(a) of Act 40 of 2002
[4]
provides that:
"for
purposes
of
subsection
2(a)
'a
debt
may not be regarded
as
being
due until the creditor
has
knowledge of the identity
of the
Organ
of
State and the facts giving rise to the debt, but
a
creditor
must be regarded
as
having
acquired such knowledge
as soon
as
he/she/it could have acquired by reasonable
care
unless the Organ of State wilfully prevented
him/her/it
from acquiring such knowledge."
[13]
Section
3(4)(b) of the Institution of Legal Proceedings against Certain
Organs of
State
[5]
provides
that
the
Court
may
grant
condonation
if
it
is
satisfied
that:
"the
debt has not been extinguished by prescription; good cause exists for
the failure by the creditor; and the Organ of State
was not
unreasonably prejudiced by the failure to comply with the provisions
of Section 3."
[14]
In
Minister
of Safety and Security v De Witt
[6]
the
Court held that the three (3) requirements of Section 3 of the Act
referred to
supra
are
conjunctive
,
and
the Court must be satisfied that the requirements
have
been met before it can exercise its discretion and condone
non-compliance with the Act.
[15]
The
Respondents' opposition is 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
Respondents will not suffer unreasonable prejudice due to
delay in
serving the required notice. The Respondents further submitted that,
the Applicant did not deal with the good prospects
of success on the
merits of the claim, and that he has not taken this Court into its
confidence by accounting with proper details
and clarity on why such
undue delay occurred after his release on 28 June 2018.
[16]
Section
3(1)(a)
[7]
provides that no
legal proceedings for recovery of a debt may be instituted against an
Organ of State unless the creditor has given
the relevant Organ of
State notice, in writing, of his intention to institute the legal
proceedings in question.
Section
3(2) 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 (6) months from the date on which the debt became due".
[17]
The Supreme
Court of Appeal in
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
held
that:
'the
requirements in Section 3(4) are conjunctive and must be established
by the
Applicant
for condonation.'
[8]
[18]
Similarly
in
Madinda
v Minister of Safety and Security
[9]
the
Court held that
"the
structure of a Section 3(4) is now that the Court must be satisfied
that all three requirements have been met.
Once
it is satisfied the discretion to condone operates according to the
established principle in such matter, as to which
was
expressed
similarly in
Minister
of Safety and Security v De Witt
where
the following
was
mentioned:
'the discretion may only be exercised, however, if the three criteria
in Section 3(4)(b) are met, that the debt has not
been extinguished
by prescription (at issue in casu); that good cause exists for
creditors' failure; and that the Organ of State
has not been unduly
prejudiced."
[10]
[19]
Counsel
for the Respondents relied on
Saloojee
and another, N.N.O v Minister of Community Development
[11]
where
the following was stated: "There is a limit beyond which a
litigant cannot escape the result of his attorney's lack of
diligence
or the insufficiency of the explanation tendered to hold otherwise
might have a disastrous effect upon the observance
of the rules of
this Court. Considerations
ad
misericordia
should
not be allowed to become an invitation to laxity. In fact, this Court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
rules of this Court was due to negligence on the
part of the
attorney. The attorney, after all, is a representative whom the
litigant has chosen for himself, and there is little
reason why, in
regard to condonation of a failure to comply with a rule of Court,
the litigant should be absolved from the normal
consequences of such
a relationship,
no
matter what the circumstances of the failure are."
[20]
The
Applicant's current attorney and the deponent to the founding
affidavit alleges that
he
only
managed
to
consult
with
the
Applicant
for
the
first
time
on the
5
th
February
2021.
Ex
facie
the
papers it appears that the Notice in terms of the Act was served on
the Respondent after the consultation
albeit
on the
same day. The Applicant's attorney further makes a case that
Applicant's cause of action arose on the same day (5
th
February
2021) when the Applicant became aware that he may have legal remedies
available to him against the Respondents. I
am of the view that the
view expressed by the Applicant's legal representative is incorrect
though it cannot be held against the
Applicant to deny him an
opportunity
to
claim against the Respondents
because of the
incorrect legal advice.
[21]
The
Constitutional Court in
Brummer
v Gorfil Brother Investment (Pty) Ltd and others
[12]
the
Court stated:
"This
Court has held that an application for leave to appeal will be
granted if it is in the interest of justice to do
so
and that
the existence of prospects of
success,
although an
important consideration in deciding whether to grant leave to appeal,
is not the only factor in the determination of
the interest of
justice. It is appropriate that an application for condonation be
considered on the same basis and that such application
should be
granted if it is in the
best
interest
of justice and refused if it is not. The interest of justice must be
determined by reference to all relevant factors, including
the nature
of the relief sought, the extent and cause of the delay, the nature
and the cause of any other defect in respect of
which condonation is
sought, the effect on the administration of justice, prejudice
and
reasonableness
of the Applicant's explanation for the delay of defect.·
[22]
It is common
cause that the claim against the Respondent has not prescribed. The
notice in terms of the Act was served on the Respondents
on 5
1h
February 2021.
[23]
It is the
Applicant's deponent (an attorney) who issued the notice in terms of
the Act. He was convinced that the notice was issued
within six (6)
months as required by Section 3 of the Act. The attorney only became
aware that the notice was not served in terms
of the Act after being
served with a special plea of non-compliance
with
the provisions of Section 3 of Act 40 of 2002.
The
Applicant's attorney maintain that he was always of the view that the
cause of action arose 5
th
February 2021 when the Applicant became aware for the first time or
was informed of his possible action against the Respondents.
[24]
In
Madinda
supra
the
following
was
stated:
'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/her part which attaches to the delay in serving the notice
timeous/y. Strong merits may mitigate fault; no merits may render
mitigation pointless. There are two main elements at play in Section
4(b), viz the subject's right to have the merits of his case
tried by
a
Court
of Jaw and the right of an Organ of State not to be unduly prejudiced
by the delay beyond the statutory prescribed limit for
the giving of
a
notice.
"
[13]
[25]
Applying the
principle above, I am inclined to grant the condonation. As I already
mentioned above it is not in dispute that at
the time the action was
instituted the claim against the Respondent
had not prescribed.
It is for the above that I am satisfied that the Applicant did not
display a flagrant disregard of the processes
needed in terms of the
Act in respect of his intended action against the Respondents.
[26]
It is also further
trite
that
the Applicant must establish the absence of unreasonable prejudice to
the Respondents
.
This places an
onus on the Applicant to set out that the Respondent will not suffer
unreasonable prejudice as a result of the delay
in issuing the Notice
in terms of the provisions of Act 40 of
2002.
It is also so
that the Respondents in their opposing affidavit have not made out a
case that they were in any way to be unreasonably
prejudiced by the
late delivery of the statutory notice
.
This Court
will therefore be slow to assume prejudice for which the Respondents
have not made out such a case.
[27]
As already stated above, Section 34 of the Constitution of the
Republic
[14]
stated that
everyone has a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a Court
or, where appropriate, another independent impartial tribunal or
forum. It is for the above that I find that it
would be in the
interest of justice not to deny the Applicant
the
opportunity to pursue his claim, were he to be punished for the
mistaken belief of his legal representative that would amount
to
infringement
of
his constitutional
right.
[28]
It
is
my
considered
view
that
the
exercise
of
discretion
should
favour
for
the
granting of the
condonation application.
[29]
Notwithstanding
the above finding, the Applicant for condonation seeks court's
indulgence for non-compliance with the court's rules
or statutory
requirements.
I am of the
view that Respondents
·
'
opposition of the application was not unreasonable under the
circumstance and ought not unreasonably bear the costs of opposition.
[30]
In view of the above
the following order is made:
1.
Condonation
application for non-compliance with the provisions of Section 3 of
Act 40 of 2002, is granted.
2.
The Applicant
to pay the taxed party and party costs on scale B.
T.L.
MANYE, AJ
Appearances
On
behalf of the Applicant:
Adv
I MACAKATI
Instructed
by:
Makubalo
Attorneys
1st
Floor,
Sunday
School
Building,
154
Charlotte Maxeke Street
Bloemfontein
On
behalf of the Respondent:
S S
JONASE
Instructed
by:
Office
of the State Attorney
12
th
Floor,
Fedsure
Building
48
Charlotte Maxeke Street
Bloemfontein
[1]
Act
40 of 2002
[2]
Para
3.29 of the particulars of claim
[3]
Institution
of Legal Proceedings against Certain Organs of State
[4]
Institution
of Proceedings against Certain Organs of State
[5]
Act
40 of 2002
[6]
2009
ZASCA 103
;
2001
(1)
SA 457
SCA
at
para [30]
[7]
Act
40 of 2002
[8]
2010
ZASCA
27
;
2010
(4)
SA
109
(SCA)
[9]
2008
ZASCA 34; 2008 (4)
SA
312
(SCA)
[10]
2008
ZASCA 103
;
2009
(1)
SA 457
(SCA)
[11]
1965
(2) SA 135 (A)
[12]
2000
ZACC
3
;
2000 (2) SA 837
(CC);
2000
(5)
BCLR 465
CC
[13]
Madinda
v Minister of Safety
and
Security
[2008] ZASCA 34
;
2008
(4) SA
312
at
p
.
317
at para
C
-
D
[14]
Act
108 of 1996