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2024
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[2024] ZAMPMBHC 84
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Minister of Police v Hadebe (1905/2022) [2024] ZAMPMBHC 84 (12 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
12/11/2024
CASE
NO: 1905/2022
In the matter between:
MINISTER OF
POLICE
APPLICANT
and
MSHIYENI ISAIAH
HADEBE
RESPONDENT
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be November 2024 at 10:00.
JUDGMENT
MASHILE J
[1]
The Applicant (“the Minister”) seeks relief that his late
launching of an application
to rescind the judgment and order (“the
order”) of Roelofse AJ granted in favour of the Respondent
(“Hadebe”)
on 2 June 2023 be condoned as intended in
Uniform Rule of Court 27. Once condoned, the Court is implored to
rescind and set aside
the order. The order traces its origins to a
claim for wrongful arrest and detention that was instituted by Hadebe
on 25 April
2022 and served on the Minister on 29 April 2022. The
Minister did not defend the action until 8 June 2022.
Background Facts
[2]
As will be evident from what is to follow below, this Court will rely
on those facts described
in the founding affidavit on behalf of the
Minister and not seriously contended by Hadebe. On 20 June 2023,
Hadebe served the order
on the Minister. Armed with the order and
proof of service upon the Minister, Hadebe proceeded to issue a
warrant of attachment
on 16 August 2023 against the property of the
Minister. This stirred the Minister into action – launching and
serving an
urgent application in two parts, A and B, to stay
execution pending the current condonation and rescission on 8
September 2023.
On 19 September 2023, this Court granted an order
staying execution pending condonation and rescission in favour of the
Minister.
[3]
Mr Joseph Siki Sibanyoni (“Sibanyoni”) is the deponent to
the founding affidavit.
He states that he is in the employ of the
South African Police Services (“SAPS”), deployed in the
Department of Litigation
and Administration Legal Services,
Provincial Offices. His department is responsible for all legal
matters pertaining to the Minister
for the entire province. Sibanyoni
estimates that his department is served with hundreds of summonses
every day.
[4]
Sibanyoni alleges that on receipt of the summonses aforesaid, they
must be registered on the central
database. Ordinarily and
considering the number of summonses received daily, this takes about
a day or two. Once a summons has
been registered on the central
database, it is sent to one of fifteen legal officers in the
litigation department. Each one of
these legal officers is
responsible for approximately one hundred and fifty files. All these
files are at different stages of litigation
process.
[5]
All the files require attention from the legal officers. Sibanyoni
states further that considering
the volume of work that confronts
each legal officer, it is possible that it could take about five days
or so to attend to a new
summons that has gone through the process.
Upon the legal officer receiving the summons, the legal officer will
open a new file
and peruse the summons. Thereafter, establish where
and when the incident occurred. The legal officer also needs to
verify whether
the Notice in terms of section 3 of the Institution of
Legal Proceedings against certain Organs of State Act 40 of 2002 has
been
complied with as this may assist with expedition of accessing
relevant information quicker as a file could have been opened
already.
[6]
Where there is no file already opened, the legal officer will write
to the Station Commander of
the police station to which a claim
relates requesting copies of the docket, the occurrence book, the
cell register and other necessary
relevant documents that could
assist in the matter. Sibanyoni says that due to the police stations
being understaffed, delays are
often experienced in the police
stations punctually providing the required information. The
information is mainly necessary to
assess the matter, whether to
oppose or settle.
[7]
As a result of the massive size of workload, the delays in obtaining
documents and other information
that could be relevant from the
various police stations, the legal officers sometimes instruct the
office of the State Attorney
to enter appearance to defend while
waiting for documents. Sibanyoni states that this is not the normal
practice, but it is only
done in exceptional circumstances. This
approach may have ominous consequences for the Minister especially
where an appearance
to defend has been served and filed followed by a
plea. Subsequently, it may transpire in such circumstances that in
fact, the
matter should not have been defended. Unnecessary legal
costs would have been incurred against the Minister.
[8]
On 25 April 2022, Hadebe issued summons against the Minister. The
summons was served on 29 April
2022. Sibanyoni is not sure of the
date on which his attention was drawn to the existence of the
summons. He states that it is
probable that he was busy attending to
other matters on behalf of the Applicant that required urgent
attention. Sibanyoni concludes
on this that it is possible that the
summons may have landed at the bottom of the pile of hundreds of
matters that were assigned
to him. On 30 May 2022, the office of the
State Attorney in Mbombela notified Sibanyoni’s department that
it has been served
with summons in this matter and sought
instructions.
[9]
Sibanyoni immediately wrote back to the office of the State Attorney
giving it instructions to
serve and file a notice of intention to
defend the claim. Simultaneously, Sibanyoni addressed a letter to the
Station Commander
at Dirkiesdorp Police Station requesting
documentation related to Hadebe’s arrest. On 8 June 2022, the
office of the State
Attorney served and filed a notice of intention
to defend Hadebe’s action. On 12 July 2022, Hadebe served and
filed a notice
of bar calling upon the Minister to deliver his plea,
which the Minister failed to heed. The attorney appointed to handle
the case
in the office of the State Attorney was one Mr Masite.
[10] On
9 May 2023, the head of the office of the State Attorney in Mbombela,
one Mr Ngobeni, advised Sibanyoni
that Masite had resigned, his
office lacked capacity to properly attend to the case and asked if he
could be directed to appoint
a correspondent attorney to assist.
Having been furnished with instructions to appoint a correspondent
attorney, on 18 May 2023,
the office of the State Attorney appointed
Messrs Chigo Attorneys (“Chigo Attorneys”) to act as
correspondent. On the
same day, Chigo Attorneys served and filed a
Notice of Appointment as Correspondent Attorneys of Record.
[11]
Sibanyoni alleges that in consequence of Masite’s resignation
from the office of the State Attorney,
staff and officials at the
office of the State Attorney could not trace the file. The upshot of
this was that the office of the
State Attorney could not furnish
Chigo Attorneys with sufficient instructions because they had no
papers. On 14 June 2023, Chigo
Attorneys turned to their
counterparts, Attorneys of Hadebe, to request papers on this case.
Hadebe’s attorneys responded
on 20 June 2023 advising that
Roelofse AJ had already granted judgment in the amount of R200 000.00
in favour of Hadebe on 2 June
2023.
[12] On
20 June 2023, Hadebe’s attorneys served the order upon the
Minister. On 21 June 2023, Chigo
Attorneys apprised the office
of the State Attorney of developments regarding the order having been
granted against the Minister
on 2 June 2023. Additionally, Chigo
Attorneys drew the attention of the office of the State Attorney to
the fact that the matter
had previously been set down on 18 May 2023
and that apparently the office of the State Attorney was represented
albeit that they
could not decipher who the representative was as
they could not find the Court file after numerous attempts.
[13]
Sibanyoni alleges that his wife and family live in Pretoria because
of which he visits them monthly. On 10
July 2023, his wife fell very
ill, and this caused him to take leave of absence from work. Thus, he
was away from the office from
13 July 2023 until 21 August 2023. He
is responsible for High Court Matters and has more than 1000 files
currently under his attendance.
While absent from work, his
supervisor assisted with some of his matters, but this was not one of
them. On his return to work on
21 August 2023, he learnt that
Hadebe’s attorneys had obtained judgment against the Minister.
[14]
Having discovered that Hadebe’s attorneys had an order against
the Minister, he immediately instructed
the office of the State
Attorney to launch an application for the rescission of the order of
2 June 2023. Heeding his instructions,
the office of the State
Attorney in turn authorised Chigo Attorneys to initiate rescission
proceedings against Hadebe. At that
juncture, Sibanyoni had not yet
received the police docket, which he claims is critical for the
assessment of a
bona fide
defence and therefore, whether to
settle or not.
[15] On
11 August 2023, Sibanyoni finally received the documents from
Dirkiesdorp Police Station among which was
the Police Docket - CAS
76/11/2021. When he perused the docket, he was persuaded that Hadebe
did not have a claim in the main action.
According to him, the
circumstances under which the arrest and detention happened were
lawful and justifiable. On 16 August 2023,
Hadebe’s attorneys
served a warrant of execution on Chigo Attorneys by e-mail. The
e-mail message advised that the warrant
would be served on the
Minister at the Police Head Office in due course by the Sheriff.
[16]
The above background is the premise on which the Minister would want
this Court to grant condonation and
thereafter rescind and set aside
the order dated 2 June 2023. Sibanyoni adds that without the papers
from the police station, Chigo
Attorneys could not have been placed
in a position to prepare, launch and serve the application. These
documents only reached Sibanyoni
on 11 August 2023 but there was no
one to hand them over to Chigo Attorneys until his return on 21
August 2023. The remaining period
of 14 days, between 21 August 2023
and 8 September 2023, was spent on preparation of this application
and consulting with Counsel
on it.
Assertions of the Parties
[17]
The Minister believes that the factual background above demonstrates
that he has shown good cause. The delay
in launching the recission
application was caused by failure of the attorneys who represented
him to execute their mandate appropriately
and promptly. In the
circumstances, the delay is excusable in that it was neither
intentional nor negligent.
[18] On
the other hand, Hadebe asserts that the Minister simply did not
comply with Rule 31(2)
(b)
by failing to deliver its
application for rescission within 20 days after Judgment was granted.
In the second place, the Minister
has failed to show: good cause; the
degree of non-compliance with the Rules; the explanation therefore;
the importance of the case;
the Applicant’s interest in the
finality of the Judgment of the Court; the convenience of the Court
and the avoidance of
unnecessary delay in the administration of
justice, a reasonable explanation for their default; that the
application is made
bona fide
; that the Applicant has a
bona
fide
defence and
prima facie
prospects of success on its
application for rescission.
[19]
The allegation of the Minister that his attorneys failed to properly
carry out their instructions is bare,
and hearsay insofar as has not
been confirmed by either the office of the State Attorney nor Chigo
Attorneys. The Minister asserts
that the delay was neither
intentional nor negligent in that it was not caused by disregard of
the Rules of Court, but no proper
explanation is given by the
Minister. The delay must have been deliberate in that the Minister
chose to act outside of the ordained
timelines prescribed by the
Rules and stopping short of putting forward a
bona fide
defence.
[20]
Hadebe further asserts that the Minister baldly states that there is
no prejudice and that he believes that
there are good prospects of
success on the merits of a rescission application. However, the
Minister does not address any aspect
of possible prejudice and does
not state a single fact to substantiate his belief in the alleged
prospects of success of a rescission
application. The Minister
dismally fails to make out a case for the indulgence and relief
sought.
Issues
[21]
The first issue that requires the attention of this Court is what
effect the notice of bar served on 12 July
2022 has on these
proceedings. In other words, what will the practical effect of
condoning and rescinding the order be in circumstances
where the
Minister has been
ipso facto
barred? A further question that
arises is whether the Minister has made a case for condonation. If he
has, the Court should consider
the merits of the rescission
application.
Legal Framework
[22]
Dealing with condonation, Rule 27 of the Uniform Rules of Court is
headed: Extension of time and removal
of bar and condonation, and
subrule (1) provides:
“
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these Rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems
meet.”
[23]
The issue of good cause shown has received the attention of various
Courts in this country. Thus, in
Naidoo
v Hesslewood and Another
,
[1]
the Court stated the following:
“
[3]
The principles relating to applications for condonation are trite.
Suffice to state that an applicant for condonation is required
inter
alia
to
address the following: the degree of non-compliance with the rules;
the explanation therefor; the importance of the case; the
respondent’s interest in the finality of the judgment of the
court
a
quo
;
the convenience of the court and the avoidance of unnecessary delay
in the administration of justice.”
[24]
It has been stated that these factors are not individually decisive
but are interrelated and must be weighed
against each other. In doing
so, for instance, a good explanation for the lateness may assist the
applicant in compensating for
weak prospects of success. Similarly,
strong prospects of success may compensate the inadequate explanation
and long delay. See
in this regard the matter of
Academic
and Professional Staff Association v Pretorius SC NO and Others
.
[2]
See also
Grootboom
v National Prosecuting Authority and Another
[3]
where
the Court held that:
“
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation. The interests of justice must be
determined with reference to all relevant factors. However,
some of
the factors may justifiably be left out of consideration in certain
circumstances. For example, where the delay is unacceptably
excessive
and there is no explanation for the delay, there may be no need to
consider the prospects of success. If the period of
delay is short
and there is an unsatisfactory explanation but there are reasonable
prospects of success, condonation should be
granted. However, despite
the presence of reasonable prospects of success, condonation may be
refused where the delay is excessive,
the explanation is non-existent
and granting condonation would prejudice the other party. As a
general proposition the various
factors are not individually decisive
but should all be taken into account to arrive at a conclusion as to
what is in the interest
of justice.”
[25]
Like in the case of rescission, a party cannot hide behind the
incompetence of his attorney when seeking
condonation. Thus, in
Saloojee
and Another, NNO v Minister of Community Development
,
[4]
it
has been held that a litigant should generally not be absolved from
the ordinary consequences of such a relationship, irrespective
of the
circumstances that resulted in the failure to comply.
[26]
Turning to the Rescission application, to the extent that the
Minister relies on Rule 31(2)
(b)
of
the Uniform Rules of Court, it could be instructive to cite it in
full below:
“
A
defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as it deems fit.”
[27]
For the rescission application to succeed, an applicant in the shoes
of the Minister ought to allege and
show the following:
27.1
Reasonable explanation of the default. If it turns out that his
default was wilful or exceptionally negligent,
a Court will not
entertain his case;
27.2
The application must be
bona fide
and not be made with the
intention of merely delaying the Plaintiff’s claim; and
27.3
Demonstration of the existence of a
bona
fide
defence against the Plaintiff’s claim. It will be sufficient if
an applicant makes out a
prima
facie
defence in the sense of setting out averments which, if established
at the trial, would entitle him to the relief sought. An Applicant
is
not required to deal fully with the merits of the case and produce
evidence that the probabilities are in his favour.
[5]
[28]
In the matter of
Maujean
t/a Audio Video Agencies v Standard Bank of South Africa Limited
,
[6]
it was held that:
“
More
specifically in the context of a default judgment ‘wilful’
connotes deliberateness in the sense of knowledge of
the action and
of its consequences, ie its legal consequences and a conscious and
freely taken decision to refrain from giving
notice of intention to
defend, whatever the motivation for this conduct may be.”
[29]
The Constitutional Court in
Ferris
and Another v FirstRand Bank Limited and Another
[7]
held
that an attorney’s negligence does not always constitute a
reasonable explanation for default. Earlier than the Constitutional
Court, the Appellate Division, as it then was, in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
,
[8]
also had the following to say:
“
I
have reservations about accepting that the defendant’s
explanation of the default is satisfactory. I have no doubt that
he
wanted to defend the action throughout and that it was not his fault
that the summary judgment application was not brought to
his
attention. But the reason why it was not brought to his attention is
not explained at all. The documents were swallowed up
somehow in the
offices of his attorneys as a result of what appears to be
inexcusable inefficiency on their part. It is difficult
to regard
this as a
reasonable
explanation. While the courts are slow to penalise a litigant for his
attorney’s inept conduct of litigation, there comes
a point
where there is no alternative but to make the client bear the
consequences of the negligence of his attorneys. Even if
one takes a
benign view, the inadequacy of this explanation may well justify the
refusal of rescission on that account unless,
perhaps, the weak
explanation is cancelled out by the defendant being able to put up a
bona fide
defence which has not merely some prospect, but a good prospect of
success.”
Analysis
Effect of the
Minister Being Ipso Facto Barred
[30]
Before turning to the requirements of the factors that ought to be
addressed in an application for condonation
outlined in the
Naidoo
case
supra
,
I deem it necessary to tersely consider the existence of the bar in
this matter. To this end, Rule 26 of the Uniform Rules of
Court deals
with failure to deliver pleadings timeously and it provides:
“
Any
party who fails to deliver a replication or subsequent pleading
within the time stated in rule 25 shall be
ipso
facto
barred. If any party fails to
deliver any other pleading within the time laid down in these Rules
or within any extended time allowed
in terms thereof, any other party
may by notice served upon him require him to deliver such pleading
within five days after the
day upon which the notice is delivered.
Any party failing to deliver the pleading referred to in the notice
within the time therein
required or within such further period as may
be agreed between the parties, shall be in default of filing such
pleading, and
ipso facto
barred: Provided that for the purposes of this rule the days between
16 December and 15 January, both inclusive shall not be counted
in
the time allowed for the delivery of any pleading.”
[31]
The impact of the service and filing of the notice
of bar on 12 July 2022 by Hadebe is that the Minister has
fundamentally been
prohibited from taking any further step in the
litigation without first uplifting the notice of bar. Conversely,
having barred
the Minister, Hadebe legitimately proceeded to apply
for a default judgment, which this Court granted on 2 June 2023.
Logically,
to undo the absolute bar placed on the Minister would be
to seek condonation to uplift the bar and only then apply for
rescission
to set aside the judgment. Alternatively, the Minister
could have launched an all-in-one application being for the
upliftment of
the bar and to rescind.
[32]
Assuming that the condonation to rescind were to be granted in this
matter, the Minister will still have
to deal with the absolute bar
brought about by the 12 July 2022 notice of bar. Needless to state
that the Minister’s approach
will necessarily imply
multiplicity of applications and therefore, soaring legal costs in
circumstances where this can be easily
avoided. Apart from gratuitous
legal costs, there is a different angle to this and that is that the
rescission cannot succeed for
as long as the bar exists. Simply put,
the notice of bar is an impediment to the success of the rescission
application. So, until
uplifted it is futile to deal with the
condonation for rescission. That said, I will nonetheless proceed to
consider the merits
of the condonation for the rescission
application, but I must emphasise that it is an exercise in futility.
It is strange that
this point seems to have eluded both parties.
Condonation
The Degree of
Lateness or Non-Compliance with the Prescribed Time Frames
[33] I
deal now with the requirements as outlined in case law in particular
Naidoo
’s case
supra
and many others that followed
in its footsteps. For purposes of the condonation for rescission,
this Court would be confined to
restrict itself to the events that
unfolded following the Minister acquiring knowledge of the order of 2
June 2023. This date can
be regarded as 21 June 2023. However, the
existence of the bar, which became effective five days after 12 July
2022 cannot be wished
away. Having served a noticed of intention to
defend on 8 June 2022, the Minister seem to have gone into a deep
slumber such that
he ignored even the notice of bar.
[34]
Once the claim became officially defended, Masite, handling this case
on behalf of the Minister, totally
kept quiet and the Minister would
have this Court believe that his resignation, which only happened in
2023, was the cause of the
delay. How possible this was is enigmatic.
From 8 June 2022 to 9 May 2023, the date on which Ngobeni advised
Sibanyoni that Masite
had left, a period of almost twelve months had
elapsed. There is just no account for what transpired during that
period. It is
manifest that what jolted the Minister into action was
the warrant of execution, not the notice of bar and not the order of
2 June
2023.
[35]
Accepting that Masite left around April 2023, did Ngobeni only
realise that the office of the State Attorney
was snowed under ten to
eleven months later? If that is the position, the Minister has the
office of the State Attorney to blame
and that would have nothing to
do with Hadebe. Having requested the police docket on 30 May 2022,
Sibanyoni never made any enquiries
on how far the police were in
providing the documents until advised of Masite’s resignation.
Even after Masite had resigned,
which I assume would have been
earlier than 9 May 2023, it still took the office of the State
Attorney nine days to appoint a firm
of local corresponding
attorneys, Chigo Attorneys. If this was because the file could not be
traced, I fail to appreciate how it
should prejudice Hadebe.
[36]
The appointment of Chigo Attorneys on 18 May 2023 was in vain without
sufficient instructions. I need to
be quick to point out that the
police docket with which Chigo Attorneys was supposed to have been
placed in possession from the
onset, could have been obtained as
early as a month or two following the request on 30 May 2022 to the
Dirkiesdorp Police Station.
Had this happened Chigo Attorneys would
have been furnished with proper instructions and the judgment granted
on 2 June 2023 probably
avoided. Any litigant in a matter like this
would have become anxious when noting that since the delivery of the
notice of intention
to defend in June 2022 nothing seemed to have
occurred and that a judgment against the Minister would have been
granted or imminent.
[37] I
am entitled to assume that while Chigo Attorneys might not have been
given full instructions, they would
nonetheless have been placed in
possession of the summons and the notice of intention to defend.
Those papers, limited as they
were, would have revealed that the
Minister had not taken a step further since delivery of the notice of
intention to defend. Any
attorney in that invidious position would
have written to the attorneys of the other side to establish the
status of the matter.
This did not happen, instead Chigo Attorneys
wrote to the other side asking if they could be supplied with copies
of the file whereupon
they were advised that judgment was granted on
2 June 2023.
[38] It
is notable that it took Chigo Attorneys twenty-six days before
writing to the attorneys of Hadebe enquiring
about the file. The
founding affidavit is silent on what transpired between 18 May 2023,
the date on which Chigo Attorneys received
instructions, and 14 June
2023, the date on which they addressed their letter to the attorneys
of Hadebe. Quite apart from the
aforesaid unexplained period, no
proper account is extended on what happened. On 20 June 2023, the
attorneys of Hadebe told Chigo
Attorneys that Roelofse AJ granted
judgment on 2 June 2023. The 20-day period referred to in Rule
31(2)
(b)
of the Uniform Rules of Court began to tick on 21
June 2023 and expired on 21 or, at most 22, July 2023.
[39]
Sibanyoni was already mindful of the judgment when he departed for
Pretoria on 13 July 2023, having acquired
knowledge of it on 20 or
latest, 21 June 2023. He had been two days in possession of the
police docket when he left on 13 July
2023. He proffers no
explanation for what he did between 21 June 2023 and 10 July 2023
when he received news of his wife’s
illness. Knowing that his
department was often inundated with serious and/or urgent matters
requiring constant monitoring, it was
horrifically negligent to leave
this file without making any of his colleagues aware that the
twenty-day period within which to
apply to rescind the order was to
expire on 21 or 22 July 2023. This remissness has nothing to do with
Hadebe and he should not
be prejudiced by it. The Minister has made
his bed and must lie on it.
[40]
The Minister wants this Court to accept that due to Sibanyoni’s
leave of absence from work no colleague
of his could have taken care
of matters that required immediate attention. If the office is so
busy, it begs the question, why
were measures not adopted to
ascertain that despite this, it retained some semblance of
functionality. When Sibanyoni returned
to work on 21 August 2023, it
would have been clear that extraordinary measures needed to be taken
to get it before Court. Strangely,
it took another eighteen days and
not fourteen, as claimed by Sibanyoni, before the application was
launched. This is not the type
of application that would have taken
eighteen days to prepare.
[41]
Besides, the Minister does not explain what happened during the
eighteen-day period. The Court is left to
speculate and/or infer that
the period was used for consultation and drafting of the papers. In
these instances, a party cannot
give a broad synopsis, but it is
expected that a full daily account of what unfolded must be
furnished. A party who does so is
in most cases characteristic of one
who is aware of his shortcomings on the issue of accountability. In
the result, the Minister’s
contention that he has furnished a
satisfactory explanation of the non-observance of the time frames in
the Rules is rejected as
devoid of any merit.
Prospects of Success
in the Main Case
[42]
Here the Minister contends that his defence would have been that the
arrest was lawfully executed as contemplated
in
section 40(1)
(g)
of the
Criminal Procedure Act 51 of
1977
. The section, if successfully proved, will amount to a complete
defence against the claim of Hadebe. The section provides that a
peace officer may without warrant arrest any
person who is reasonably suspected of being or having been in
unlawful possession of
stock or produce as defined in any law
relating to the theft of stock or produce.
[43]
Like in the case of
section 40(1)
(b)
, over time four
jurisdictional prerequisites for the successful reliance on
section
40(1)
(g)
defence have crystallised and they are that:
43.1
The arrestor is a peace officer;
43.2
The arrestor in fact entertained suspicion;
43.3
The suspicion which he held was that the suspect had committed an
offence which is referred to in Schedule
1 (not being the offence of
escaping from lawful custody); and
43.4
The suspicion rests upon reasonable grounds.
See in
this regard,
Duncan
v Minister of Law and Order
,
[9]
and
Stemar
v Minister of Police and Another
.
[10]
[44]
In deciding whether the grounds were reasonable, the factual
circumstances surrounding the arrest upon which
the arresting officer
acted upon ought to be construed objectively such that a reasonable
person would have harboured such a suspicion.
If the arresting
officer acted on second hand information, the information must be
such that a reasonable person would have believed
that an offence of
the nature has been committed.
[11]
[45]
Positive demonstration of all the jurisdictional prerequisites as
described above affords police officers
the opportunity to exercise
discretion whether to arrest. In
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte President
of the Republic of South Africa and Others
,
[12]
Chaskalson P held that the Bill of Rights required that the exercise
of a discretion must also be objectively rational otherwise
it is in
effect arbitrary.
[46]
There is no difference of opinion that the police officers who
apprehended Hadebe were peace officers and
that they entertained a
suspicion that Hadebe had committed the offenses for which he had
been accused. The aforesaid offences
are one of those mentioned under
Schedule 1. That being the position, the only issue which falls to be
determined is whether such
suspicion rested on reasonable grounds. It
is the Minister’s argument that the ground on which that
suspicion rested was
reasonable. Hadebe, on the other hand, contends
otherwise.
[47]
The Minister asserts that the arrest was effected after the conduct
of investigations at the premises of
Hadebe. In consequence of these
investigations, the stolen livestock was found in his possession. The
arrest was therefore effected
in terms of
section 40
of the
Criminal
Procedure Act 51 of 1977
, concludes the Minister. The allegation that
the arrest followed investigations is bald and unsubstantiated. In
other words, this
Court is supposed to simply accept that they were
conducted, and that the suspected stolen livestock was found in his
possession.
[48]
The Minister stops his enquiry at an early stage. Without probing the
circumstances under which Hadebe came
into possession of the
livestock, the peace officers’ suspicion could not have rested
on reasonable grounds. The point is,
could he not have proffered an
innocent explanation of his possession of the livestock? One will
never know because,
prima facie
, no such questions were posed
to Hadebe.
[49]
Even if the livestock was found to have been stolen, it would still
have been unreasonable to arrest him
without ascertaining that he was
a flight risk and therefore likely not to attend Court proceedings.
Given the facts in this matter,
it is unavoidable to conclude that
the police were rather eager to make arrest under circumstances where
they could have probed,
verified their investigations and made the
arrest or, depending on the situation, requested Hadebe to visit the
Police Station
for a statement. I cannot agree with the Minister that
the arrest was justifiable as contemplated in
section 40(1)
(g)
of
the
Criminal Procedure Act 51 of 1977
.
[50] To
the extent that the Minister could be suggesting that it is not
unlawful to arrest a person and then to
release him before the expiry
of forty-eight hours, I need to point out that any form of
deprivation of another’s freedom
without proper justification
is to be deplored in the strongest possible terms. It is of no moment
that the period was less than
forty-eight hours or not. There was no
need to arrest Hadebe if confirmation of his innocence could have
been accomplished without
his unlawful deprivation of his freedom.
[51]
The Minister’s reference to the case of
Smith
v Minister of Police
[13]
where
Bloem J stated that, “the subsection provides that the person
who has been lawfully arrested shall be in lawful custody
until
lawfully discharged or released from custody”, is misguided and
quoted out of context. The statement in
Smith
presumes that the arrest was justifiable whereas it is not the case
in this matter.
[52]
The two special pleas that the Minister asserts would have raised –
Failure to comply with Judicial
Matters Amendment Act 8 of 2017 read
with the Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002 and
section 3
of the
State Liability Act 20 of
1957
would have been dead in the water. Section 3(2) of the Judicial
Matters Amendment Act, 2017 provides that the [Plaintiff] or
[Defendant],
as the case may be, or his or her legal representative
must, after any Court process instituting proceedings and in which
the executive
authority of a department is cited as nominal Defendant
or Respondent has been issued, serve a copy of that process on the
head
of the department concerned at the head office of the department
and within five days after the service of the process serve a copy
thereof on the office of the State Attorney operating within the area
of jurisdiction of the court from which the process was issued.
[53]
I am at loss why the Minister would make this allegation when it is
clear that Hadebe was arrested on 21
December 2021 and the statutory
Notice in terms of section 3 of the Institution of legal Proceedings
against certain Organs of
State Act 40 of 2002 having been delivered
to the Minister and the Provincial Commissioner Nelspruit at 7
Ferreira Street, Mbombela,
on 21 January 2022, well within the
six-month period, this defence rings hollow. The summons too was
properly served on the National
Commissioner of SAPS at 17
th
Floor, Old Telkom Towers, 152 Johannes Ramokhoase Street, Pretoria on
8 July 2022. It is trite that the objective of the Act is
that the
action should reach the Minister. Based on this matter, it is
indubitable that the attention of the Minister was drawn
to the
claim.
Non-Joinder of The
National Director of Public Prosecutions
[54]
The allegation that Hadebe failed to join the National Director of
Public Prosecutions (“NDPP”)
is staggering. The Minister
has stated in the founding affidavit, deposed to by Sibanyoni, that
Hadebe was arrested and released
within forty-eight hours. The
question is, if that is the case, where and how does the NDPP and/or
the Minister of Justice and
Constitutional Developments come into
this? Had Hadebe been in custody beyond forty-eight hours, he would
have been kept there
at the behest of the NDPP so that his attendance
of Court would be guaranteed. This is not what transpired because he
was released
prior to appearance in Court. Accordingly, reference to
t
he
Supreme Court of Appeal in the matter of
Minister
for Justice and Constitutional Development and Others v Moleko
[14]
is misplaced and finds no application here.
[55]
Over and above the lack of merit in these so-called defences raised
by the Minister, I need to still accentuate
that the hurdle to be
overcome by the Minister on prospects of success remains the
upliftment of the bar. What purpose will it
serve to grant the
current application if the Minister is still barred? Obviously, none.
The belief that there are good prospects
for success is a fallacy.
Prejudice
[56]
Had the Minister properly attended to this matter as per the case
management order, it could have been heard
and concluded probably in
the first quarter of 2023. To audaciously state that Hadebe would not
suffer any prejudice if this Court
were to grant condonation is
oblivious of the fact that Hadebe has interest in and is entitled to
a speedy resolution of his claim.
Besides, to grant condonation in
these circumstances will be to cause gratuitous delay in the
administration of justice.
Conclusion
[57] A
consideration of all the above, that the Minister has been barred and
that prospects of success are practically
not present, lead this
Court to the decision that it will be an exercise in futility to
accede to the Minister’s application.
Here the interest of
justice clearly dictates that the application be dismissed with
costs.
[58]
While on the issue of costs, perhaps it is appropriate to state that
it would have taken the Minister to
properly peruse the papers to
notice that the two special defences that he said he would raise in
the main case were condonation
to be granted were spurious. I say
this because it is clear from the papers that the section 3 Notice
was properly delivered and
that the service of the summons was also
served upon the Minister and the office of the State Attorney.
Additionally, it should
not have required effort to realise that
non-joinder of the NDPP or the Minister of Justice and Constitutional
Developments was
incorrect. For this reason, I hold that this Court
needs to demonstrate its displeasure by ordering costs at a higher
scale of
party and party.
Order
[59] In
the result, the application fails, and I make the following order:
1
The application is dismissed.
2.
The Minister is directed to pay Hadebe’s costs at Scale B of
party and party.
______________________________
B A MASHILE
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES
Counsel for the
Applicant: Adv T
Masete
Instructed by:
Office of the State Attorney
C/O
Chigo Attorneys Incorporated
Counsel for the
Respondent: Adv C Zietman
Instructed by:
Loubser Van Wyk Inc
C/O
Cronje De Waal Sikhosane Inc
Date of
Judgment:
12 November 2024
[1]
Naidoo
v Hesslewood and Another
[2021] ZAGPPHC 783 para 3.
[2]
Academic
and Professional Staff Association v Pretorius SC NO and Others
[2007] ZALC 118
;
[2008] 1 BLLR 1
(LC); (2008) 29 ILJ 318 (LC).
[3]
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37
;
2014
(2) SA 68
(CC) para 50 to 51.
[4]
Saloojee
and Another, NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141D-F.
[5]
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476-477.
[6]
Maujean
t/a Audio Video Agencies v Standard Bank of South Africa Limited
1994 (3) SA 801
(C) at 803H.
[7]
Ferris
and Another v FirstRand Bank Limited and Another
[2013] ZACC 46
;
2014 (3) SA 39
(CC) para 25.
[8]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
[2003] 2 All SA 113
(SCA);
2003 (6) SA 1
(SCA) para 12.
[9]
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 818G-H.
[10]
Stemar
v Minister of Police and Another
[2014] ZAGPPHC 295 para 14.
[11]
See
R
v Van Heerden
1958 (3) SA 150
(T) at 152; see also
Duncan
,
supra at 814D-E.
[12]
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 85-86; See also
Minister
of Safety and Security v Sekhoto and Another
2011
(5) SA 367
(SCA) para 36.
[13]
Smith
v Minister of Police
[2023] ZAECMKHC 45 par 30.
[14]
Minister
of Justice and Constitutional Development and Others v Moleko
[2008] ZASCA 43
;
[2008] 3 All SA 47
(SCA);
2009 (2) SACR 585
(SCA).