About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2024
>>
[2024] ZAECQBHC 49
|
|
Mokhethea v Minister of Police and Another (620/2023) [2024] ZAECQBHC 49 (20 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
NOT REPORTABLE
Case no: 620/2023
In the matter between:
MOTLALEPULA EMMANUEL
MOKHETHEA
Applicant
and
MINISTER OF
POLICE
First Respondent
NATIONAL DIRECTOR OF
PUBLIC
Second Respondent
PROSECUTIONS
JUDGMENT
Govindjee J
[1]
This is an opposed application for
condonation for failure to comply with s 3(2)
(a)
of the Institution of Legal Proceedings Against Certain Organs of
State Act, 2002 (Act 40 of 2002 (the Act).
[2]
The applicant was involved in a motor
vehicle collision on 13 March 2020 in which three pedestrians were
killed (the accident).
The applicant was charged with three counts of
culpable homicide. Following investigation, a J175 ‘Summons to
appear in court’
was issued by the second respondent and served
on the applicant by members of the first respondent on 21 January
2021. The applicant
appeared before a magistrate and was found not
guilty of the abovementioned charges on 21 March 2021.
[3]
Notices
in terms of s 3(2) of the Act were only sent by mail to the
respondents on 21 April 2022, some months after the prescribed
six-month period. Summons was issued on 3 March 2023.
[1]
The defendants raised special pleas pertaining to non-compliance with
the provisions of the Act on 26 January 2024. The present
application
for condonation was served and filed a month later.
[4]
The applicant alleges that he was
wrongfully and unlawfully arrested and detained without a warrant in
Johannesburg during January
2021, to face four charges of culpable
homicide pursuant to the accident. Subsequent to his arrest and
detention, he was warned
by police officials to appear at the
Humansdorp Magistrate’s Court on 27 January 2021 for a first
court appearance, and was
released after spending three hours in
police custody. The applicant avers that there was no reasonable and
/ or probable cause
for the prosecution that followed. The charges
lacked substance, were ‘not true’ and malicious.
[5]
The applicant is a lay person. His founding
affidavit explains that he was not alive to his possible legal
claims, let alone the
requirements of the Act. At some stage during
2022, community members advised him of a possible claim. He then
attempted to obtain
assistance from numerous attorneys. This proved
difficult due to lack of finances. He was eventually referred to his
current attorneys
of record, who agreed to represent him on 21 April
2022. Notices were issued the following day. No response having been
received,
summons followed in March of the following year.
[6]
It is common cause that the matter had not
been extinguished by prescription at that time. As to prospects of
success, the applicant
states only that his prospects are good,
placing reliance on the averments contained in his particulars of
claim. The applicant
states that he would be severely prejudiced
should this application be refused, whereas the respondents would
suffer no prejudice
that cannot be remedied by an appropriate costs
order.
[7]
The respondents bemoan the lengthy delay in
serving the notices, arguing that this has been inadequately
explained. On the merits,
the first respondent denies the arrest and
detention, indicating that the applicant was warned to appear in the
Humansdorp Magistrate’s
Court on 27 January 2021, so that the
claim is frivolous and will result in unnecessary expenditure on the
part of the state. In
reply, the applicant accepts that he was
released by the police and warned to appear in court but avers that
this occurred only
after he had been arrested and detained for a
period of three hours. Moreover, there was no prima facie evidence or
proof that
he was the cause of the collision, as a result of which he
was discharged in terms of
s 174
of the
Criminal Procedure Act, 1977
,
on 21 March 2021. There is a dispute on the papers as to whether the
witness statements are in favour of or against the applicant’s
version of events.
[8]
The second respondent avers that there
existed a prima facie case against the applicant considering the
statements of various witnesses
which indicate that he was on the
wrong side of the road when the collision occurred. As such, its
employees did not act with malice
or
animus
iniuriandi
, as alleged by the
applicant. The second respondent’s case is that the applicant
had failed to establish prospects of success
relating to his claims
and not made out a case for good cause to explain the late filing of
the application.
The
condonation requirements
[2]
[9]
The
application is premised on s 3(4) of the Act.
[3]
Interpreting the requirements stipulated in the Act requires
appreciation of s 39(2) of the Constitution, so that a generous and
purposive interpretation may be given. Refusing the application would
adversely implicate the applicant’s constitutional
right to
access to court to advance the merits of his claim. This is an
important consideration but does not to suggest that proper
compliance with the set requirements may be overlooked. The
requirements to be considered before a court may be ‘satisfied’
that condonation ought to be granted are conjunctive and are to be
established by the applicant.
[4]
[10]
In
Minister
of Safety and Security v De Witt
[5]
(
De
Witt
),
the SCA held that a strict approach to interpretation would lose
sight of the purpose of condonation.
[6]
The SCA concluded that either a complete failure to send a notice, or
the sending of a defective notice, entitled a creditor to
make
application in cases where the state relied on the creditor’s
failure to comply with the Act.
[7]
[11]
The
first requirement, that ‘the debt has not been extinguished by
prescription’, has been met. ‘Good cause’,
the
second requirement, is linked to the failure to act timeously.
[8]
It requires consideration of all factors impacting on the question of
fairness of granting condonation, bearing in mind ‘the
proper
administration of justice’
[9]
and the ‘interests of justice’.
[10]
Relevant factors, to be assessed in a balanced fashion, may include
prospects of 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]
[12]
As will be illustrated, the case turns on
the court being satisfied that good cause exists for the applicant’s
failure. A
survey of decisions of the SCA offers guidance on the
point.
[13]
In
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
,
[12]
the court
a
quo
granted condonation in circumstances where it was satisfied that
there was good cause for a two-year delay in service of the notice
and based on the respondent’s failure to demonstrate any
prejudice. This decision was overturned by the SCA, partly on the
basis that the company had erred by fixating on the three-year
prescription period when it could have acted with greater alacrity
in
its investigations as to the identity of the debtor.
[13]
[14]
In
Madinda
v Minister of Safety and Security
(‘
Madinda
’),
[14]
the court
a
quo
refused condonation based on ‘complete disinterest’ in
the conduct of the appellant’s case and the consequent
failure
to maintain contact with her attorney for a period in excess of a
year.
[15]
In
Ferreira
v Ntshingila
,
[15]
the SCA was confronted with an application for condonation (based on
non-compliance with the Uniform Rules) premised on an affidavit
filed
by a candidate legal practitioner.
[16]
The court bemoaned the failure of the supervising attorney to file an
affidavit explaining the level of oversight that had been
provided,
or omitted, in respect of the work at hand.
[17]
The question remained whether condonation should be granted in
circumstances where the merits of the matter were strong. The outcome
was that condonation was refused based on the failure to provide a
full and satisfactory explanation for the delays that had occurred.
This in circumstances where the attorney had acted with gross
negligence to the extent that the prospects of success became
immaterial.
[18]
[16]
Finally,
in
Shange
v MEC for Education, KwaZulu-Natal
,
[19]
notice had been sent by the applicant’s attorney to the
national Minister of Education, rather than the respondent, in
circumstances
where the applicant was unaware of the error and the
attorney took responsibility for the oversight. Both the High Court
and SCA,
in
MEC
for Education, KwaZulu-Natal v Shange
(‘
Shange
’),
had no difficulty in holding that good cause had been established.
This in the following circumstances: ‘a devil’s
brew of
mistakes, failures and delays in the prosecution of applicant’s
case’ could not be attributed to the applicant,
and where those
responsible for looking after his interests had ‘failed him
miserably’; the applicant was not an ordinary
litigant but was
a minor seeking to advance a legitimate claim; the applicant was bona
fide and enjoyed strong, uncontested prospects
of success; and where
the importance of the case to the applicant was manifest.
[20]
[17]
It
is expected that the party seeking condonation will furnish a
sufficiently full explanation of their default, so that the court
is
able to assess the way it arose, and the defaulter’s conduct
and motives.
[21]
The
explanation must cover the entire period of the delay and must be
reasonable.
[22]
As Heher JA
explained in
Madinda
:
[23]
‘
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.’
[18]
This
necessarily includes consideration of prospects of success.
[24]
A case without merit may render mitigation of fault pointless:
[25]
‘…
that
the merits are shown to be strong or weak may colour an applicant’s
explanation for conduct which bears on the delay:
an applicant with
an overwhelming case is hardly likely to be careless in pursuing his
or her interest, while one with little hope
of success can easily be
understood to drag his or her heels.’
[19]
The
court must be placed in a position to make an assessment on the
merits to balance that factor with the cause of the delay as
explained by the applicant:
[26]
‘
A
paucity of detail on the merits will exacerbate matters for a
creditor who has failed to fully explain the cause of the delay.
An
applicant thus acts at his own peril when a court is left in the dark
on the merits of an intended action, eg where an expert
report
central to the applicant’s envisaged claim is omitted from the
condonation papers.’
[20]
Beyond
this, determination of good cause in each case depends on its own
facts.
[27]
[21]
The
third leg of the enquiry is separate and specific. It requires the
applicant to satisfy the court that the respondents have
not been
unreasonably prejudiced by the failure to serve the notice
timeously:
[28]
‘
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 …) 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.’
Analysis
[22]
Summons
having been issued and served before the end of the prescriptive
period, the court enjoys a discretion to condone the late
service of
the notice.
[29]
By my
calculation, the notices were served some nine months outside the
time period stipulated by the Act. To be ‘satisfied’,
in
terms of s 3(4)
(b)
requires a decision based on the ‘overall impression made on a
court which brings a fair mind to the facts set up by the
parties’.
[30]
It does
not require proof on a balance of probability.
[23]
The applicant’s case is premised on
his lack of knowledge about the possibilities of instituting action,
let alone the associated
legal formalities, pursuant to what occurred
following the collision. There appears to be no reason to cast
aspersions on this
averment. The applicant is a lay person and
explains that it was only in 2022, a year after the collision, that
he first became
aware of a possible claim. Even if this occurred in
January 2022, it is apparent that within a period of approximately
three months
he had taken concrete steps to press his potential
claim. The intervening period is also properly explained on the
papers: the
applicant struggled to obtain assistance from ‘numerous
attorneys as I had no finances to pay any attorney I had approached,
until I was assisted by a member of my community who informed me
about my current attorneys of record that were processing his
claim
as well, and they agreed to assist me as well on 21 April 2022.’
[24]
Leaving aside the delay in bringing the
present application, discussed below, little more could have been
expected on the part of
the applicant or his attorneys thereafter.
The immediate dispatch of the notices followed. I am satisfied, in
the present circumstances,
that a full and proper explanation for the
delay has been provided. The explanation is bona fide and must be
assessed as sufficient
and reasonable in respect of the applicant’s
own conduct. To answer the question posed by
Madinda
,
the applicant has produced acceptable reasons for nullifying in whole
any culpability on his part which attaches to the delay
in serving
the notice timeously.
[25]
There
is, however, a paucity of information which makes it difficult to
assess the prospects of success with any precision.
[31]
I accept the argument that, considering the failure to provide
sufficient detail about the alleged arrest and detention, it cannot
be said that the prospects are good. The risk of deficiencies in this
respect lies with the applicant. Even considering what appears
in the
amended particulars of claim, the prospects of success are even at
best in respect of the claim against the first defendant.
Given the
general difficulties in establishing ‘malice’ in respect
of prosecutorial conduct, as well as the burden
of proof in that
regard, and considering only what appears on the papers before me, I
must go further and hold that the prospects
in respect of the claim
against the second defendant are more questionable. Nonetheless, the
explanation for the period of delay
is sufficiently full, in my view,
to compensate for this so that there is good cause to allow the
applicant an opportunity to ventilate
both claims in court.
[26]
The
respondents claim that they will suffer prejudice if condonation is
granted in that it will have to expend a considerable amount
of money
in respect of litigating a frivolous dispute to finality. In
assessing this component, I am mindful of the Act’s
rationale
to ensure that state organs, with their extensive bureaucracy, are
afforded sufficient opportunity to investigate and
consider cases
launched against them. Very little prejudice, if any, has been
alleged by the respondents on the papers and what
is cited is
certainly not the kind of prejudice that constitutes ‘unreasonable
prejudice’. Complaining, as an organ
of state, about the costs
of litigation and highlighting the obvious benefits of timeous notice
falls short of the test. As in
Shange
,
the complaint of prejudice is general and unspecified and unrelated
to any facts that indicate prejudice.
[32]
My overall impression is that the respondents were not unreasonably
prejudiced by the applicant’s failure.
[27]
Having
assessed the requirements for condonation, the court is in a position
to consider whether to exercise a discretion to grant
condonation
according to the established principles.
[33]
This includes an assessment of the combined weight to be attributed
to the three elements of s 3(4)
(b)
[34]
and consideration of unexplained periods of delay in instituting
condonation proceedings after the notice was
de
facto
given.
[35]
I am mindful that
provisions such as s 3 are designed primarily for the benefit of
organs of state, rather than prospective litigants.
[36]
I am also alive to the reality that national state departments ‘have
a difficult task in monitoring and evaluating complaints
and claims
made against them … Their jurisdiction extends over large
geographical areas and encompass many individual employees
and
officials.’
[37]
[28]
Despite
the suggestion in the Act that a creditor may await correspondence
from an organ of state, confirming its intention to take
the point,
before launching an application for condonation, this is not the
position of the SCA. The period between April 2022,
when the notices
were sent, and February 2024, when the application was launched,
should have been fully explained. This is because
the application
should have been brought as soon after the default as possible to
alleviate possible further prejudice to the other
parties, who are
required to gather and preserve information and evidence as part of
preparation for trial.
[38]
As
in
Madinda
,
however, such delays cannot fairly be ascribed to disinterest on the
part of the applicant. But the failure to have brought the
application earlier is a reason for censure.
[39]
I intend to do so in respect of costs.
[29]
Considering the relevant factual complex in
a balanced fashion, and despite the limited assessment of the
prospects of success,
particularly in respect of the second
respondent, it would be unjust to deny the applicant a trial on the
merits. The court enjoys
a wide discretion which, in present
circumstances, is exercised in favour of the applicant in the
interests of justice.
Costs
[30]
An
application for condonation in terms of the Act is unrelated to the
usual case where condonation is sought due to failure to
adhere to
expected court procedure. The applicant seeks permission to enforce a
right. Where such an application is opposed, costs
will typically
follow the result.
[40]
[31]
In
this instance, however, it would be inequitable for the respondents
to bear the applicant’s costs. Following decisions
such as
Dauth
and Others v Minister of Safety and Security v Others
,
[41]
their opposition was not unreasonable and the application ought to
have been launched sooner, alternatively an explanation should
at
least have been provided to explain this further period of delay.
Fairness demands that no order as to costs should be made.
Order
[32]
The following order is made:
1.
Condonation is granted for the applicant’s
failure to serve the notices contemplated in s 3(1)
(a)
of the Institution of Legal Proceedings Against Certain Organs of
State Act 40 of 2002 (‘the Act’) within the period
laid
down in s 3(2)
(a)
of the Act.
2.
There is no order as to costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
08
August 2024
Delivered:
20
August 2024
Appearances:
For
the Applicant:
Adv
T Mashiyi
Chambers,
Gqeberha
Instructed
by:
Fihla
and Associates
Plaintiff
Attorneys
Office
625 Protea Towers
246
Paul Kruger Street
Pretoria
Email:
reception@fihlaassociates.co.za
C/o:
Ntanzi
Attorneys Inc.
522
Govan Mbeki Avenue
North
End
Gqeberha
For
the Respondent:
Adv
L Ah-Shene
Chambers,
Gqeberha
Instructed
by:
The
State Attorney
Attorneys
for the Defendants
29
Western Road
Central
Gqeberha
Email:
PNotley@justice.gov.za
[1]
Following
a notice of exception served and filed on 14 June 2023, the
applicant gave notice of his intention to amend his particulars
of
claim on 21 July 2023. Amended particulars of claim were filed on 24
August 2023.
[2]
The following paragraphs, and aspects of the analysis, are drawn
from this court’s reasoning in
Simanga
v The South African National Roads Agency SOC Ltd
[2023]
ZAECMKHC 97 paras 6–18.
[3]
In
essence, no legal proceedings for the recovery of a debt may be
instituted against an organ of state unless the creditor has
given
that organ of state notice in writing of the intention to institute
legal proceedings. The notice must be served on the
organ of state
within six months from the date on which the debt became due. A
court may grant an application for condonation
if it is satisfied
that: i) the debt has not been extinguished by prescription; good
cause exists for the creditor’s failure;
and the organ of
state was not unreasonably prejudiced by the failure.
[4]
See
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA) (‘
Rance
’)
para 11.
[5]
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009
(1) SA 457
(SCA) para 5.
[6]
Ibid
para 10.
[7]
Ibid
para 10.
[8]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) (‘
Madinda
’)
para
14.
[9]
Ibid para 10.
[10]
Rance
above
n 4 para 35.
[11]
Madinda
above
n 8 paras 10, 12. The fact that the applicant is strong in certain
respects and weak in others must be borne in mind in
the evaluation
of whether the standard of good cause has been achieved:
Madinda
above n 8 para 13.
[12]
Rance
above
n 4.
[13]
Rance
above
n 4 para 41 and following.
[14]
Madinda
above
n 8.
[15]
Ferreira
v Ntshingila
1990
(4) SA 271
(A) (‘
Ferreira
’).
[16]
It
must be noted that principles emerging from cases dealing with
non-compliance with court procedure should not be applied
uncritically to the requirement of good cause in s 3(4) of the Act:
Premier,
Western Cape v Lakay
2012 (2) SA 1
(SCA) (‘
Lakay
’)
para 14.
[17]
Ferreira
above
n 15 at 280E – F.
[18]
Ibid
at 281G – 282B.
[19]
Shange
v MEC for Education, KwaZulu-Natal
2012
(2) SA 519 (KZD).
[20]
Ibid
paras 35, 37, 38;
MEC
for Education, KwaZulu-Natal v Shange
2012 (5) SA 313
(SCA) (‘
Shange
’)
para 16 and following.
[21]
Madinda
above
n 8 para 11, citing
Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 352H – 353A. In
Lakay
,
the SCA referred to ‘an explanation of the default
sufficiently full to enable the court to understand how it really
came about …’:
Lakay
above
n 16 para 17.
[22]
Rance
above
n 4 paras 35, 48.
[23]
Madinda
above
n 8 para 12.
[24]
Rance
above
n 4 para 37.
[25]
Madinda
above
n 8 para 12.
[26]
Rance
above
n 4 para 37.
[27]
Lakay
above
n 16 para 17.
[28]
Madinda
above
n 8 para 21.
[29]
Ibid
paras 11, 21.
[30]
Ibid
para 8.
[31]
See
Rance
above
n 4 para 50.
[32]
Shange
above
n 20 para 22.
[33]
Madinda
above
n 8 para 16.
[34]
Ibid
para 29.
[35]
Ibid
para 20.
[36]
Mabaso
v National Commissioner of Police and Another
2020
(2) SA 375
(SCA) (‘
Mabaso
’)
para 13.
[37]
Ibid
para 49.
[38]
Madinda
above
n 8 paras 14, 28: subsequent delay by an applicant, for example in
bringing an application for condonation, ordinarily not
fall within
the enquiry as to ‘good cause’ but is part of the
exercise of the discretion to condone in terms of s
3(4); Cf
Shange
above
n 24 para 24. Also see
Mabaso
above n 36 para 49 and following.
[39]
Ibid.
[40]
Lakay
above
n 16 para 25.
[41]
Dauth
and Others v Minister of Safety and Security and Others
[2008] ZANCHC 26
;
2009
(1) SA 189
(NC) para 10.