Gcam-Gcam v Minister of Safety and Security (187/11) [2017] ZAECMHC 31 (12 September 2017)

Gcam-Gcam v Minister of Safety and Security (187/11) [2017] ZAECMHC 31 (12 September 2017)

The court held that service of the statutory notice on the National Commissioner of Police is a peremptory requirement under section 4(1)(a) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002. The plaintiff's notice, served on the Minister and acknowledged by the Provincial Head, did not reach the National Commissioner or the relevant SAPS unit implicated in the alleged delict. The court distinguished the Bahle decision, finding that in this case, the object of the Act was not achieved as the proper functionary was not notified and the claim was not investigated by the relevant section. Substantial compliance cannot be found where the head of department...

Citation
[2017] ZAECMHC 31
Parties
Plaintiff: Mfundisi Gcam-Gcam; Defendant: Minister of Safety & Security
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
12 September 2017
Case Number
187/11
Procedural Posture
Civil Trial / Trial Judgment on Special Plea
Outcome
Defendant's special plea upheld; plaintiff barred from proceeding without condonation.
Judges
S M Mbenenge
Legal Topics
Institution of Legal Proceedings Against Organs of State, Notice Requirements, Special Plea, Wrongful Arrest, Detention, Assault
Civil Procedure Delict Institution of Legal Proceedings Against Organs of State Notice Requirements Special Plea Wrongful Arrest Detention Assault

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Mfundisi Gcam-Gcam

Plaintiff

Minister of Safety & Security

Defendant

Procedural Posture

Civil Trial / Trial Judgment on Special Plea

Legal Issues

  1. 1 Whether the plaintiff complied with sections 3 and 4 of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 before launching the action.
  2. 2 Whether substantial compliance with the notice requirements suffices where the notice was not served on the National Commissioner of Police.
  3. 3 Whether the defendant was prejudiced by the manner of service of the notice.

Ratio Decidendi

The court held that service of the statutory notice on the National Commissioner of Police is a peremptory requirement under section 4(1)(a) of the Institution of Legal Proceedings against certain Organs of State Act 40 of 2002. The plaintiff's notice, served on the Minister and acknowledged by the Provincial Head, did not reach the National Commissioner or the relevant SAPS unit implicated in the alleged delict. The court distinguished the Bahle decision, finding that in this case, the object of the Act was not achieved as the proper functionary was not notified and the claim was not investigated by the relevant section. Substantial compliance cannot be found where the head of department...

Court Disposition

Defendant's special plea upheld; plaintiff barred from proceeding without condonation.

Orders

  • The defendant's special plea is upheld.
  • The plaintiff shall pay the costs of the action incurred thus far.