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2024
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[2024] ZAFSHC 344
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Mokoena v Minister of Police and Another (816/2022) [2024] ZAFSHC 344 (7 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable Yes/No
Case No:
816/2022
In
the matter between:
SHADRACK
MAHLOMOLA MOKOENA
Applicant
and
THE
MINISTER OF POLICE
First
Respondent
NATIONAL
DIRECTOR OF PUBLIC PROSECUTION
SERVICES
Second
Respondent
CORAM:
Hefer AJ
Heard
:
17 October 2024
Delivered:
7 November 2024
Summary:
ORDER
1.
The applicant is granted condonation in terms of
s
3(4)
of the
Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002
for the late notification of his intention to
institute legal proceedings against the first respondent.
2.
Each party is to pay its own costs.
JUDGMENT
Hefer AJ
[1]
The applicant instituted action against the respondents, claiming
damages arising from the alleged
unlawful arrest and prosecution of
the applicant.
[2]
In response to the applicant’s allegation to the effect that
the required notices in terms
of s 3(1)
(a)
of the Institution
of Legal Proceedings Against Certain Organs of State Act 40 of 2002
(the Act) had been delivered to both respondents
on or about 31
August 2021, the first respondent raised a special plea.
[3]
In terms of this special plea, the first respondent denies that the
plaintiff had complied with
the provisions of s 3(2) of the Act in
that the first respondent had been arrested and detained more than
two years before the
delivery of such notice to first respondent.
[4]
Section 3(2) of the Act requires a plaintiff to send a notice of its
intention to institute an
action to the organ of state against which
legal action is about to be instituted, within a period of six months
from when the
debt became due.
[5]
It is common cause that the action instituted by the applicant,
constitutes legal proceedings
for recovery of a debt against both
respondents.
[6]
Before dealing with the merits of the application, Mr
Zietsman
,
appearing on behalf of the applicant, applied for leave to allow the
applicant to introduce a supplementary affidavit to the founding
affidavit. This application was opposed by the first respondent.
[7]
According to the applicant, the filing of a supplementary affidavit
was necessitated due to the
fact that it was only upon receipt of the
police case docket from the Offices of the State Attorney, that the
attorney, acting
on behalf of the applicant, had been able to consult
properly with the applicant.
[8]
Prior to this, and at the stage when the founding affidavit had been
deposed to, the applicant
could not provide all the documentary
evidence and properly explain the merits of the matter as the first
respondent had failed
and/or refused to furnish the applicant’s
attorneys with the complete contents of the police case docket. This
is according
to the applicant.
[9]
In further support of the application for leave to allow the
introduction of the supplementary
affidavit, the relevant portion
thereof reads as follows:
‘
The
information we now wish to place before the Honourable Court is in
amplification of the averments we have already made in the
founding
papers. It was also decided to rather supplement the founding papers,
than to start with a new application alternatively
reply to the first
respondent’s opposing papers and produce new evidence which
will be dismissed by the Honourable Court
and be severely scrutinized
by the first respondent’s legal team. To supplement the
founding papers will have a far less
drastic cost implication to all
parties involved and will put the court in a position to properly
assess the application on the
merits now being produced to this
Honourable Court. Supplemented information will contribute and assist
the court in making an
informed decision in this regard as prayed for
in the notice of motion.’
[10] It
is this portion of the supplementary affidavit, dealing with the
motivation for filing a supplementary
affidavit, which needs to be
dealt with.
[11]
The founding-as well as the supplementary affidavit were deposed to,
not by the applicant himself, but rather
by the attorney acting on
behalf of the applicant. From the facts as set out and contained in
the supplementary affidavit, it appears
that the facts which the
applicant sought to rely upon must have been within the knowledge
himself pertaining to the circumstances
surrounding the arrest of the
applicant. Putting it differently, the facts regarding to the arrest
of the applicant were not ascertained
from the contents of the police
docket, the relevant portions being placed before Court. These facts
could and should have been
placed before Court in the founding
affidavit from the beginning.
[12]
The inference was inevitable that the failure to include such facts
in the founding affidavit, can only be
attributed to the actions of
the draftsman of the founding affidavit, more in particular the
deponent to such affidavit, being
the attorney himself. The attorney
is the one who should have known that such facts should have been
contained in the founding
affidavit.
[13]
The inference of professional oversight is further fortified by the
contradiction between the contents of
the founding affidavit and that
of the supplementary affidavit regarding the date when the first and
then a later notice in terms
of s 3 of the Act had been sent to the
first respondent. It was, as conceded by Mr Zietsman, an obvious
mistake in the drafting
of either one of such affidavits which cannot
be attributed to the applicant himself. It can also not affect the
credibility of
the applicant himself as argued by Mr Mazibuko,
appearing on behalf of the first respondent.
[14]
The unsatisfactory manner in which the filing of a further affidavit
was dealt with by the applicant’s
attorney, is further evident
from the passage quoted from the founding affidavit above. The
applicant’s attorney clearly
realised that the applicant would
need the leave of the Court to file a further affidavit in the form
of a re-joinder. Realising
that such application for leave would have
necessitated an explanation for not including the relevant facts
before Court from the
beginning, the applicant opted to rather place
a supplementary affidavit before Court. However, an application to
file a supplementary
affidavit, also necessitates a full explanation
why such facts were not included in the founding affidavit from the
start. Such
application is not in terms of the Uniform Rules of
Court.
[15] In
his heads of argument, Mr Zietsman stated that a party may in terms
of rule 6(5)
(e)
apply to Court for leave to file a further
affidavit in motion proceedings. This provision is however in respect
of a re-joinder
and not a supplementary affidavit.
[16]
The authority relied upon by Mr Zietsman did, however, assist the
applicant. In
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
,
[1]
the Western Cape High Court considered whether certain further
affidavits could be admitted into evidence. Davis J, in motivating
his ruling to admit such affidavits, with reference to
Mkwanazi
v Van der Merwe and Another
[2]
as
well as
Barclays
Western Bank Ltd v Gunas and Another
,
[3]
confirmed that the relevant considerations in this regard should be:
‘
(i)
The reason why the evidence was not led timeously.
(ii)
The degree of materiality of the evidence.
(iii)
The possibility that it may have been shaped to relieve the pinch of
the shoe.
(iv)
The balance of prejudice, viz the prejudice to the plaintiff if the
application is refused
and the prejudice to the defendant if it is
granted.
(v)
The stage which the particular litigation has reached …
(vi)
The ‘healing balm’ of an appropriate order as to costs.
(vii)
The general need for finality in judicial proceedings.
(viii)
The appropriateness, or otherwise, in all the circumstances, of
visiting the fault of the attorney
upon the head of his client.’
[4]
[17]
Taking into account all these considerations, in particular the
degree of materiality of the evidence (regarding
the reasonable
grounds of suspicion of the time of the applicant’s arrest),
the prejudice which the plaintiff will suffer
if such application was
to be refused, the healing balm of an appropriate cost order as well
as the appropriateness in all the
circumstances of visiting the fault
of the attorney upon the head of his client, I ruled that such
supplementary affidavit is to
be accepted into evidence and that the
applicant is to pay the costs of such application.
[18]
Returning to the merits of the application, in terms of s 3(4) of the
Act:
‘
(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 the court having jurisdiction for condonation of such
failure;
(b) The court
may grant an application referred to in paragraph (a) if it 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.”
[19]
In
Minister
of Agriculture and Land Affairs v CJ Rance
[5]
it was held that the requirements as contained in s 3(4) of the Act
are conjunctive and must be established by the applicant for
condonation.
[6]
In
eThekwini
Municipality v Crimson Clover Trading 17 (Pty) Ltd t/a Island
Hotel
[7]
it was held that the factors set out in s 3(4) must be considered in
light of the well settled principles of condonation. In this
regard,
the Supreme Court of Appeal referred to the matter of
Mulaudzi
v Old Mutual Life Assurance Company South Africa Ltd
[8]
where it re-stated the factors which need to be taken into account
when considering an application for condonation as follows:
‘
A
full, detailed and accurate account of the causes of the delay and
the effects must be furnished as to enable the court to understand
clearly the reasons and assess the responsibility. Factors which
usually weigh with this court in considering an application for
condonation include the degree of non-compliance, the explanation
therefor, the importance of the case, a respondent’s interest
in the finality of the judgment of the court below, the convenience
of this court and the avoidance of unnecessary delay in the
administration of justice.’
In
addition, the Court has held in
Madinda
v Minister of Safety and Security
[9]
(
Madinda
)
that
‘
The
phrase “if [the court] is satisfied” in s 3(4)
(b)
has
long been recognised 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.
’
[10]
(Emphasis added).
[20] As
far as the good cause requirement is concerned, the Court held that:
‘“
[G]ood
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 such possible factors become
relevant.
These may include the success in the proposed action, the reasons 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
therefor.’
[11]
. . .
‘“
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 in s 4(b), viz the subject’s right to have the
merits of the case tried by a court of law and
the right of an organ
of state not to be unduly prejudiced by delay beyond the statutory
prescribed limit for the giving of notice.
Sub-paragraph (iii) calls
for the court to be satisfied as to the latter. Logically,
sub-paragraph (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
.’
[12]
[21]
The present application is opposed by the first respondent who in
essence, contends that:
(a)
The applicant has not shown good cause for his
failure to timeously give notice in terms of s 3; and
(b)
The first respondent has been unreasonably
prejudiced by the applicant’s failure to comply with s 3 of the
Act.
[22]
In deciding whether the applicant has given a reasonable explanation
for his failure to timeously serve a
notice in terms of s 3(2), it is
necessary to consider when the applicant had all the necessary
information in terms of s 3(4)
to enable him to formulate the
notice.
[13]
Failure to show good
cause:
[23]
According to Mr Mazibuko, the applicant has failed
in casu
to
show a good cause for filing the required notice timeously, for the
reasons which follow below.
Absence of reasonable
explanation:
[24] It
is common cause that the applicant was arrested by an employee of the
first respondent on 9 March 2019.
On this day, according to first
respondent, all material facts giving rise to the applicant’s
claim became known to him.
Furthermore, it is true that the cause of
action in respect of the action against the first respondent arose on
the date of the
arrest.
[25]
As held in
Madinda
,
however, a Court should consider ‘the overall impression made
on a court which brings a fair mind to the facts set up by
the
parties.’
[14]
Considering the relevant facts before Court in the present matter, it
is common cause that the applicant had been arrested, detained
and
subsequently charged on charges of stock theft. Since his
release on bail on the 20
th
of
March 2019, the applicant was burdened with these criminal charges
against him.
[26] It
appears from the charge sheet, that the applicant has been acquitted
on 17 May 2021. It is not unreasonable
to expect that the first
priority of the applicant up until the date of acquittal would have
been the potential conviction and
incarceration pursuant to such
potential conviction. It is also not unreasonable to accept that a
person, in the shoes of the applicant,
may only after being acquitted
by a court of law, consider appropriate actions against the relative
authorities, such as the South
African Police Service and the
Minister of Police, in respect of a potential claim based on unlawful
arrest.
[27]
It is true as argued by Mr Mazibuko on authority of the matter of
Van
Wyk v Unitas Park Hospital
[15]
that:
‘
.
. . the explanation [for the delay] must cover the entire period of
delay.’
[28]
Applying the latter to the present facts before Court, the applicant
and the deponent to the founding affidavit
are indeed silent in
respect of the period since acquittal of the applicant till the
consultation with the first attorney who then
referred the applicant
to his present attorney of record somewhere around August 2021.
[29]
But considering the ‘full picture’ in this regard I do,
however, take into consideration that
approximately three to four
months had expired since the date of acquittal of the applicant and
the first of two notices in terms
of section 3 (2) of the Act being
sent to the first respondent on behalf of the applicant.
Lack of reasonable
prospects of success:
[30]
As already indicated, with reference to the relevant authorities,
good cause for the delay usually comprehends
the prospect of success
of the main action. In this regard, Mr Mazibuko’s contention,
with reference to
Scheepers
v Minister of Safety and Security
[16]
to the effect that the mere fact that the person was not prosecuted
after the arrest or that the person was later acquitted does
not on
its own (and
per
se
)
render the arrest unlawful, is correct.
[31]
The first respondent’s contention that the applicant’s
attorney has made the assertion that the
applicant has a good
prospect of success in the main action without having been put in
possession of the police docket pertaining
to the charges which the
applicant had been faced with, is also correct. However, this is
where the contents of the supplementary
affidavit become relevant.
[32]
The correspondence and facts before Court show that, prior to the
present application being launched by the
applicant, the attorney
acting on behalf of the applicant has already, approximately four
months prior to the application being
launched by the applicant,
requested the state attorney to furnish him with the police docket,
to which the state attorney and
first respondent failed to respond.
Such docket was, however, made available to the applicant after the
present application had
been launched, which necessitated the filing
of the supplementary affidavit.
[33] Of
importance with regards to the contents of the supplementary
affidavit is that this affidavit expanded
upon the explanation
provided by the applicant regarding how he came into possession of
the particular stolen livestock on that
particular day, how he dealt
with such livestock and the explanation he had provided to the
arresting officer at the time. Suffice
it to say that the explanation
provided by the applicant was plausible to such an extent that I
consider the applicant’s
prospect of success in the main action
to be good.
Unreasonable
prejudice:
[34]
As far as the third requirement of s 3(4) of the Act is concerned, it
was held in
Minister
of Public Works v Roux Property Fund (Pty) Ltd
[17]
(
Roux
Property Fund
)
that:
‘
.
. . it is not all and any prejudice that precludes the grant of
condonation. It is only unreasonable prejudice. The availability
of
witnesses and records will be of particular importance under this
head, but other features may also be relevant.’
[18]
[35] In
Roux Property Fund
, the Court took into consideration that key
witnesses who had previously been in the employment of the relevant
government department
had since been dismissed from its employ. The
inordinate delay of more than three and a half years between the time
the respondent
(applicant in the Court
a quo
), was aware that
it was required to bring the condonation application and the time
that it brought the application was prejudicial
to the organ of
state.
[36] In
the present matter, the application for condonation was launched
approximately one year after the first
delayed notice in terms of
section 3 (1)(a) of the Act had been sent to the first respondent.
Further, unlike in
Roux Property Fund
, the first respondent
does not reply on either the unavailability of witnesses or records.
The first respondent merely states that:
‘
.
. . due to fallibility of human memory, employees of an organ of
state concerned may not remember how the events giving rise to
a debt
claimed unfolded.’
[37] It
is true that the first respondent’s employees do indeed deal
with thousands of matters on an annual
basis. However, there is no
factual basis for the contention that such witnesses, and
particularly the arresting officer, will
not be able to refresh his
memory in support of his evidence to be led before Court.
[38] I
am therefore satisfied that the application for condonation should
succeed and that the applicant should
not be denied his
constitutional right of access to court.
[39] As
far as costs is concerned, the applicant, is on the one hand,
successful in this application before Court.
On the other hand, the
applicant seeks an indulgence from the Court in applying for
condonation for non-adherence to the applicable
legislation. I also
do not deem the opposition by the first respondent to the applicant’s
application to be unreasonable.
In view thereof, I deem it
appropriate that each party is to pay its own costs.
Order
Therefore, I make the
following order:
1.
The applicant is granted condonation in terms of
s
3(4)
of the
Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002
for the late notification of his intention to
institute legal proceedings against the first respondent.
2.
Each party is to pay its own costs.
HEFER AJ
Appearances:
On
behalf of the applicant:
Adv
C Zietsman
Instructed
by:
Loubser
Van Wyk Inc.
Plaintiff’s
attorney
c/o
Jacobs Fourie Attorneys
Bloemfontein
On
behalf of the first respondent:
Adv
MS Mazibuko
Instructed
by:
State
Attorney
Bloemfontein
[1]
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
2000 (4) SA 598 (C).
[2]
Mkwanazi
v Van der Merwe and Another
1970 (1) SA 609 (A).
[3]
Barclays
Western Bank Ltd v Gunas and Another
1981 (3) SA 91 (D).
[4]
Footnote 1 at 617.
[5]
Minister
of Agriculture and Land Affairs v CJ Rance
[2010] ZASCA 27; 2010 (4) SA 109 (SCA).
[6]
Ibid para 11.
[7]
eThekwini
Municipality v Crimson Clover Trading 17 (Pty) Ltd t/a Island Hotel
2021 ZASCA 96
para 10.
[8]
Mulaudzi
v Old Mutual Life Assurance Company South Africa Ltd
[2017] ZASCA 88
;
2017 (6) SA 90
(SCA) para 26.
[9]
Madinda
v Minister of Safety and Security
[2008] ZASCA 342008
(3) All SA 143 (SCA).
[10]
Ibid para 8.
[11]
Ibid para 10.
[12]
Ibid para 12.
[13]
Footnote 7 para 11.
[14]
Footnote 9 para 8.
[15]
Van
Wyk v Unitas Park Hospital
[2007] ZACC 24
;
2008 (2) SA 140
(CC) para 22.
[16]
Scheepers
v Minister of Safety and Security
2015 (1) SACR 284
(ECG).
[17]
Minister
of Public Works v Roux Property Fund (Pty) Ltd
2020 ZASCA 119.
[18]
Ibid para 20.