About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 331
|
|
Matli v Minister of Police (3884/2022) [2024] ZAFSHC 331 (24 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
3884/2022
In
the matter between:
SEBOLELO
MERIAM MATLI
Applicant
And
MINISTER
OF POLICE
Respondent
Coram:
DAFFUE J
Heard
:
29 AUGUST 2024
Delivered
:
24 OCTOBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 16H00 on 24 OCTOBER
2024.
Summary:
A minor
child, a pedestrian at the time, was killed in a motor vehicle
collision. The driver of the vehicle belonging to the South
African
Police Service (SAPS) was an employee on official duty. The foster
mother of the minor child belatedly gave notice to SAPS
in accordance
with Act 40 of 2002 of her intention to claim damages in the form of
emotional shock and funeral expenses. On receipt
of the summons the
Minister of Police filed a special plea relying on non-compliance
with s 3 of Act 40 of 2002, where after the
foster mother brought an
application for condonation which was opposed. The court considered
all relevant circumstances with reference
to the established
principles laid down in
inter alia
Madinda v Minister of
Safety and Security.
It held that the Minister was not
unreasonably prejudiced by the failure to serve the required notice
timeously. Condonation was
granted.
ORDER
1.
The applicant’s non-compliance with
section 3 of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 is condoned.
2.
The respondent shall pay the applicant’s
costs of the
application, including the fees of counsel on scale A as contemplated
in Rule 67(A)(3).
JUDGMENT
Daffue
J
Introduction
[1]
On 21 August 2019 a minor child, she being a pedestrian
at the time,
was killed in a motor vehicle accident in Maokeng, Kroonstad, Free
State Province. The driver of the State vehicle
was a member of the
South African Police Service (SAPS) who was on duty at the time. The
minor child’s foster parent, Me
Sebolelo Meriam Matli,
belatedly received advice from a legal representative to institute
action against the Minister of Police
to claim damages for emotional
shock and funeral expenses due to the alleged negligence of the SAPS
driver.
[2]
The letter of demand was sent by registered post on 16
August 2022 to
the National and Provincial Commissioners of SAPS. It was hopelessly
out of time as the statutory period of six
months expired on 18
February 2020. Thereafter, summons was issued which was eventually
met with a special plea, relying on non-compliance
with the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 (Act 40 of 2002). The defendant also pleaded
over the
merits. The plaintiff filed the required application for condonation
in terms of Act 40 of 2002 which was opposed by the
defendant.
The
parties
[3]
As indicated, the plaintiff in the main action is Ms
Sebolelo Meriam
Matli who resides in Maokeng, Kroonstad, Free State Province. She
instituted action in her capacity as foster mother
of the late Pinkie
Augustina Jantjie (the minor child).
[4]
The Minister of Police in his official capacity as political
head of
SAPS is cited as the defendant in the main action.
[5]
In order to avoid confusion, I shall herein after refer
to the
parties as cited in the condonation application, to wit the applicant
and respondent respectively.
The
claim in the main action
[6]
The applicant claims R550 000 from the respondent,
to wit
R500 000 as general damages for her trauma and emotional shock
and R50 000 in respect of funeral costs incurred
as a result of
the death of her foster child.
Material
events in chronological order
[7]
I record the following:
a.
the minor child was born on 2 December 2002;
b.
the applicant was awarded foster care over
the minor child in terms
of s 159(1) of the Children’s Act 38 of 2005 which order was
extended from time to time, the last
extension being to 31 December
2020;
c.
on 21 August 2019 the minor child was killed
in the aforesaid motor
vehicle collision which means that she was 16 years old when she
died;
d.
on 24 March 2021 the applicant consulted an
attorney who started to
communicate on her behalf with the Road Accident Fund (RAF);
e.
the RAF sought the contents of the SAPS docket
as a result of which
the applicant’s attorney contacted the Independent Police
Investigative Directorate (IPID) on 24 March
2022, requesting the
docket contents under case number 252/08/2019, this being a clear
indication that a docket was indeed opened
in August 2019;
f.
during August 2022 the applicant
received advice from counsel that a
civil cuit should be instituted against the respondent whereupon the
letter of demand dated
16 August 2022 was sent as mentioned;
g.
summons was issued on 17 August 2022 whereupon
the respondent filed a
notice to defend on 16 September 2022;
h.
notwithstanding the requirements of rule 22
of the Uniform Rules of
Court, the respondent failed to file his plea within 20 days from 16
September 2022;
i.
nothing happened for nine months
until a notice of bar was served by
the applicant’s attorney on 6 July 2023 whereupon the plea,
including the special plea,
was filed on 10 July 2023;
j.
on 23 May 2023 the RAF offered
to settle the applicant’s
funeral expenses which offer was apparently not accepted;
k.
on 19 April 2024 the applicant filed her application
for condonation;
l.
the respondent failed to give
timeous notice of his intention to
oppose the application and consequently, it was set down for hearing
on 6 June 2024;
m.
on 31 May 2024 the defendant filed a notice of intention
to oppose
which caused the application to be removed from the roll, the
respondent to pay the wasted costs;
n.
on 25 June 2024 the respondent eventually
filed an answering
affidavit, deposed to by Captain MM Pieters to which the applicant
did not reply;
o.
the matter was set down for hearing on 29
August 2024 where after
judgment was reserved.
Legal
Proceedings against Certain Organs of State Act 40 of 2002 (Act 40 of
2002)
[8]
The relevant portion of s 3 of Act 40 of 2002 reads as
follows:
‘
3
Notice of
intended legal proceedings to be given to organ of state
(1)
No
legal proceedings
for the recovery
of a debt may be instituted against an organ of state
unless
-
(a)
the
creditor has given
the organ of state
in question
notice
in writing of his
or her or its intention to institute the legal proceedings in
question;
or
(b)
the
organ of state
in question
has consented
in writing to the
institution of that legal proceedings-
(i)
without
such notice
; or
(ii) upon
receipt of a notice which does not comply with all the requirements
set out in subsection (2).
(2)
A
notice must-
(a)
within
six months
from the date on which the debt became due, be served
on the organ of state in accordance with section 4 (1); and
(b) briefly
set out-
(i) the
facts giving rise to the debt; and
(ii) such
particulars of such debt as are within the knowledge of the creditor.
(3) …..
(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.’ (emphasis added)
Evaluation
of the evidence and submissions
[9]
Save for the time line referred to above, I did not deal
specifically
with any evidence presented by the parties, but shall deal with that
during my evaluation hereinafter.
[10]
These kinds of applications serve all too often in our courts.
Litigants frequently
fail to comply with the aforesaid statutory
requirements. In many of these cases the organs of state often do not
comply with the
rules of court, but unnecessarily try to close the
doors of the court for litigants who are often lay, poor and
unsophisticated
citizens. As I have shown when I dealt with the
material events in chronological order, this is a typical case where
the organ
of state is guilty of non-compliance with the rules of
court. In the absence of a special plea and on the basis that the
plea was
filed timeously, the main claim would have been heard by
now, bearing in mind the short waiting list in this Division.
[11]
Section 34 of the Constitution confirms the constitutional right of
citizens
to have access to courts. It reads as follows:
‘
Everyone
has the 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 and impartial tribunal or
forum.’
I shall consider the
applicant’s right to have her dispute resolved in a fair public
hearing during the evaluation of the
evidence.
[12]
It is apposite to refer to some provisions of the Road Accident Fund
Act 56
of 1996 (RAF Act) in light of the failure of the applicant’s
legal representative to correctly advise her of her rights. The
liability of the RAF is excluded in certain cases. The relevant part
of s 19 of the RAF Act reads as follows:
‘
The
Fund or an agent shall not be obliged to compensate
any person in terms of section 17 for any loss or damage-
(a)
…
(b)
…
(c)
…
(d)
…
(e)
…
(f)
…
(g)
suf
fered
as a result of an
emotional
shock
sustained
by that person when that person
witnessed
or
observed
or
was
informed
of the bodily injury or the death of another person as a result of
the driving of a motor vehicle
.
(emphasis added)
Certain
common law claims have been abolished in the RAF Act, but it should
be noted that claims based on emotional shock may still
be instituted
in certain instances. Section 21 reads as follows with particular
emphasis on s 21(2)(b):
‘
(1)
No claim for compensation in respect of loss or damage resulting from
bodily injury to or the death of any person caused by
or arising from
the driving of a motor vehicle shall lie-
(a)
against
the owner or driver of a motor vehicle; or
(b)
against
the employer of the driver.
(2)
Subsection (1) does not apply-
(a)
if
the Fund or an agent is unable to pay any compensation; or
(b)
to
an action for compensation in respect of loss or damage resulting
from
emotional shock
sustained by a person, other than a third party,
when
that person witnessed or observed or was informed of the bodily
injury or the death of another person as a result of the driving
of a
motor vehicle
.’ (emphasis
added)
[13]
The applicant
inter
alia
claims
damages from the respondent for the alleged emotional shock that she
has suffered as a result of the death of her foster
child. The
locus
classicus
in
respect of the negligent infliction of nervous shock is
Bester
v Commercial Union Versekeringsmaatskappy van SA Bpk.
[1]
In
Swartbooi
v Road Accident Fund
[2]
(Swartbooi)
the
court held that the plaintiff had a valid claim for damages in
respect of emotional shock against the RAF in accordance with
s 17 of
the RAF Act and that the claim was not limited in terms of s 18 of
that Act. Since
Swartbooi
,
the RAF Act has been amended with effect from 1 August 2008. The
RAF’s liability in respect of claims based on emotional
shock
has now been excluded.
[14]
I stated the
following, writing for a unanimous full bench, in
Minister
of Police v Maseko:
[3]
‘
Inordinate delays
in litigating damage the interests of justice as Didcott J pointed
out in
Mohlomi v Minister of Defence
(Mohlomi)
. Logic dictates that it may be
extremely difficult for an organ of state to deal with a claim
instituted against it just before
prescription is interrupted and
without any notice or demand whatsoever. The authorities are clear.
Documentary evidence may not
be available anymore and/or witnesses
might have passed on in the meantime and/or might not be available to
testify anymore. But,
it is not the purpose of the demand requirement
to prevent a worthy litigant from access to justice in accordance
with s 34 of
the Constitution. The purpose was explained as follows
by Didcott J in
Mohlomi:
‘
The conventional
explanation for demanding prior notification of any intention to sue
such an organ of government 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 ought to accept,
reject or endeavour to settle them.’
(footnotes omitted)
[15]
In
Mugwena
and Another v Minister of Safety and Security
[4]
the Supreme Court
of Appeal considered the Minister’s special plea to the effect
that the plaintiffs had not complied with
the time periods set out in
s 57
of the
South African Police Service Act 68 of 1995
which was
applicable in August 1997 when an off-duty policeman shot and killed
a person. Act 40 of 2002 was promulgated much later.
However, the
judgment of Ponnan JA, writing for a unanimous court, is a perfect
example of how time limits should be adjudicated.
The following
dictum
[5]
remains valid
today:
‘
Section
57 permits account to be taken of the claimant's fault or the lack
thereof and the prejudice suffered by the State, or its
absence
(
Mohlomi
at para
[19]). It seeks, on the one hand, to protect innocent claimants who
may be time-barred in consequence of not having
complied with the
prescribed time-limits and, on the other, to protect the police, a
large bureaucracy, against the prejudice it
may suffer in consequence
of inordinate delays in instituting actions against it. Striking a
balance between these competing
considerations is thus central
to the enquiry envisaged by ss (5). That subsection is cast in wide
terms. It empowers a court to
engage in a weighing-up exercise. …
That prejudice to the respondent had not been asserted and, in fact,
was manifestly absent,
did not merit a mention in the trial
Court's judgment. … Absent prejudice, there was little, if
anything, to tip the scales
in favour of the respondent or against
the grant of the relief sought.’
[16]
Organs of state
often rely on the judgment of the Supreme Court of Appeal in
Minister
of Agriculture and Land Affairs v CJ Rance
[6]
(Rance)
in order to
bolster their opposition of condonation applications in terms of s
3(4) of Act 40 of 2002. This was exactly the stance
taken
in
casu
.
The facts in
Rance
are often
completely distinguishable from the facts encountered where lay and
unsophisticated persons seek condonation for non-compliance
with Act
40 of 2002. In that case the applicant was a huge and well-resourced
company who could afford quality legal representation
and who even
made use of an internationally renowned expert in order to
investigate the circumstances leading to the damages suffered
by it.
A reading of the judgment makes it clear that
Rance
dragged their
feet
[7]
and consequently, its
application for condonation was dismissed on appeal due to its
failure to establish good cause.
[17]
I am satisfied
that the applicant’s prospects of success are more than
reasonable. I do not have to speculate on the likely
outcome of her
claim if it goes on trial. It is apparent that the attorney that she
initially consulted did not display expertise
in respect of claims
for emotional shock. Therefore, he tried to claim damages in this
regard from the RAF. Earlier, this was possible
as the authorities
indicate.
[8]
Any negligence on
his part may play a role in adjudicating the application, but it is
obviously not the only factor to be considered.
[18]
Ms Matli did not
explain why she approached an attorney for the first time in March
2021, being one year and seven months after
the minor child was
killed. There was no attempt to justify the delay. However,
there cannot be any doubt that she is a lay
person and that the
attorney that she approached at the time did not have the expertise
required of a legal representative specialising
in personal injury
claims. Obviously, he believed and advised her that the RAF was the
correct entity to be held responsible. Act
40 of 2002 does not apply
to the RAF. Immediately after receiving the correct advice from
counsel in August 2022, the letter of
demand was issued as mentioned
above. The facts in this case remind me of the Supreme Court of
Appeal’s judgment in
MEC
for Education, Kwazulu-Natal v Shange (Shange)
.
[9]
In that case the minor child was injured in June 2003, but he only
received advice that he had a claim against the MEC from an
advocate
in the Office of the Public Protector during January 2006. Having
considered all relevant factors, the Supreme Court of
Appeal
concluded that the court
a
quo
was
correct to grant condonation in accordance with s 3(4) of Act 40 of
2002.
[19]
The prospects of success are a relevant consideration in order to
deal with
the requirement of good cause for the delay. It is common
cause that the minor child was a pedestrian when she was hit by the
SAPS
vehicle. It is the applicant’s case that the driver drove
the vehicle at an excessive speed, failed to keep the vehicle under
control and also failed to avoid the collision. The respondent’s
version is that the driver applied reasonable care and even
stopped
at a stop sign immediately before the collision. On this version the
minor child and her friends entered the road whilst
running, causing
a sudden emergency. The negligence issue is for the trial court to
adjudicate. I am satisfied that there are relatively
strong merits
favouring the applicant’s case. Also, strong merits may
mitigate fault.
[20]
In line with what
Heher JA stated in
Madinda
v Minister of Safety and Security, Republic of South Africa
[10]
(Madinda),
Ms Matli has to
satisfy the court that the respondent had not been unreasonably
prejudiced by the failure to serve the notice timeously.
The learned
justice proceeded in this regard as follows in
Madinda
:
‘
This
must inevitably depend on the most probable inference to be drawn
from the facts which are to be regarded as proved in the
context of
the motion proceedings launched by an applicant. The approach to the
existence of
unreasonable
prejudice
(not simply any level of prejudice, an aspect which the judgment of
the court
a
quo
blurs)
requires a common sense analysis of the facts, bearing in mind that
whether the grounds of prejudice exist often lies peculiarly
within
the knowledge of the respondent. 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 a basis.’
[21]
There is no onus on the respondent to show the absence of
unreasonable prejudice,
but any grounds of prejudice that could have
been relied upon would be within the respondent’s and/or the
SAPS officials’
particular knowledge. The respondent failed to
present facts indicating that he will be prejudiced if condonation is
granted. In
casu
, reliance was placed on financial issues such
as having to retain the services of counsel for the condonation
application. A vague
averment was made, suggesting a potential that
the prosecutor and witnesses in SAPS’ employ might not be
available. This
was said without considering the time already wasted
by the respondent to file his plea and the further time gone by
because of
the insistence that a condonation application be brought.
Furthermore, the respondent failed to file the notice to oppose and
answering
affidavit timeously. I refer to the time line set out
above, indicating that the respondent failed to comply with the
Uniform Rules
of Court on more than one occasion. In my view the
respondent knew from the day when the minor child was killed that a
SAPS vehicle,
driven by a SAPS employee whilst on duty, collided with
the minor child who was a pedestrian at the time. There is no doubt
about
the identity of the driver. It is also evident that the matter
was internally investigated by IPID and furthermore, it is not the
respondent’s case that the driver or any other witnesses are
not available anymore. It is emphasised that I should not consider
any level of prejudice, but unreasonable prejudice.
[22]
In my view the
following
dictum
of the Supreme
Court of Appeal in
Mothupi
v MEC, Department of Health Free State
[11]
is apposite:
‘
Moreover,
given that the respondent does not rely upon any prejudice, it is
clear that
it
is seeking to short-circuit the claim by relying solely upon a
technical point
.
Had it been able to show that the conduct of its case had in fact
been prejudiced in some way by reason of the delay and a failure
to
give notice timeously, the court may well have viewed its opposition
to condonation with a less jaundiced eye.
However,
relying upon the failure to give notice when such failure did not
cause any prejudice does not redound to the credit of
the respondent
─
Cf
MEC
for Education, KwaZulu-Natal v Shange
2012
(5) SA 313
(SCA)
paras 17-22.’ (emphasis added)
[23]
Having considered
all aspects mentioned herein, I am satisfied that the following
dictum
in
Madinda
[12]
is apposite:
‘
[29]
One is now in a position to assess the combined weight to be
attributed to the three elements of s 3(4)(b)(i) (ii) and (iii)
which
were established, in the context of the discretion to grant or refuse
condonation. Given the absence of unreasonable prejudice
to the SAPS
from the equation and the persuasive, though not flawless, reliance
on good cause, no court exercising a discretion
unaffected by the
misdirections which tainted the assessment of the trial judge, would
have deprived the appellant of the opportunity
to have her claim
tested according to the dictates of law and justice. Condonation
should therefore have been granted. It follows
that the appeal must
succeed.’
[24]
It is common cause
that the debt has not prescribed. I have a wide discretion in
adjudicating the application and am satisfied that
I have considered
all the relevant circumstances in a balanced fashion. I accept the
trite principle that the reference to ‘satisfied’
in s
3(4)(b) does not mean that an applicant has to prove their case on a
balance of probabilities, but rather that the court must
form an
overall impression ‘which brings a fair mind to the facts set
up by the parties.’
[13]
Conclusion
[25]
I conclude that good cause has been established for condonation to be
granted
under s 3(4) of Act 40 of 2002. I am satisfied that it is in
the interests of justice that the applicant has access to court as
provided for in s 34 of the Constitution to allow her to attempt to
prove her claim. Having accepted that the respondent has not
been
unreasonably prejudiced and that the applicant’s delays should
be condoned, it is necessary to consider the costs of
the
application.
[26]
Ms Matli sought an
indulgence. The general rule is clear. The litigant seeking an
indulgence shall pay the costs of the condonation
application, even
in the event of they being successful, including the opponent’s
costs of opposition, unless the court finds
such opposition to be
unreasonable. Notwithstanding the aforesaid general rule, I have
taken cognisance of the judgment in
Shange
[14]
where the court
concluded that the costs in applications for condonation in terms of
Act 40 of 2002 shall follow the event if the
application is opposed.
Ms Matli’s application for condonation deserves to be
criticized, but bearing in mind the established
facts, the respondent
should not have opposed the application. The opposition was
unreasonable. Therefore, costs should be awarded
to the applicant as
the successful party.
Order
[27]
The following order is made:
1.
The applicant’s non-compliance with
section 3 of the
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 is condoned.
2.
The respondent shall pay the applicant’s
costs of the
application, including the fees of counsel on scale A as contemplated
in Rule 67(A)(3).
DAFFUE
J
Appearances
For
applicant:
Adv P
Chaka
Instructed
by:
Mokhomo
Attorneys
BLOEMFONTEIN.
For
respondent:
Adv
NM Seleso
Instructed
by:
State
Attorney
BLOEMFONTEIN.
[1]
1973 (1) SA 769
(A), cited with approval in
Barnard
v Santam Bpk
[1998] ZASCA 84
;
1999
(1) SA 202
(SCA) at 209 and further.
[2]
2013 (1) SA 30 (WCC).
[3]
(A107/2023) [2024] ZAFSHC 121 (30 April 2024)
[4]
2006 (4) SA 150 (SCA).
[5]
Ibid
para 18.
[6]
2010 (4) SA 109 (SCA).
[7]
Ibid
paras 15-46.
[8]
See
inter
alia
Swartbooi
v Road Accident Fund
in footnote 2
above.
[9]
2012 (5) SA 313
(SCA) para 12.
[10]
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) para 21.
[11]
(20598/2014)
[2016] ZASCA 27
(22 March 2016) para 16.
[12]
Ibid
para
29.
[13]
Ibid
para
8.
[14]
Loc cit
para 24 where the
court accepted the reasoning of Cloete JA in
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) para 25.