Makamu and Others v Minister of Police and Another (1359/2017; 1360/2017; 1361/2017) [2021] ZAMPMBHC 54 (7 October 2021)

IN THE HIGH COURT OF

SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 1359/2017

CASE NUMBER: 1360/2017

CASE NUMBER: 1361/2017

(1) REPORTABLE: YES/NO

(2) OF INTREST TO OTHER JUDGES: YES/NO

(3) REVISED/

In the matter between:

MPENDULO

MAKAMU

First Applicant

SONENI VUSI

MHLABANE

Second Applicant

ABBSEY HASWELL

NKOSI

Third Applicant

and

THE MINISTER OF

POLICE

First Respondent

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Second Respondent

JUDGMENT

GREYLING-COETZER AJ

[1] This is an application wherein the applicants seek condonation for their failure to service the statutory required notice of their intention to institute legal proceedings against the second respondent within the period of 6 (six) months, or at all, from the date on which the debt became due.[1]

[2] It appears to be common cause that the applicants were arrested on 8 November 2013 on a charge of Murder of Constable Mabuza and the charges were withdrawn on 28 January 2015.

[3] It is the applicants’ contentions that they were ordered to appear in court on 24 January 2014, during which court appearance the prosecutor enrolled the matter and proceeded with the criminal prosecution of the applicants, in circumstances where it was clear that there were no prospects of a successful prosecution. It has been alleged that applicants’ bail applications were opposed by the second respondent, therefore resulting in their continued detention until 3 May 2014 pursuant to bail being granted. According to the applicants’ their malicious prosecution continued, as they were made to attend several further court hearings until 28 January 2015, on which day the second respondent withdrew all the charges against the applicants.

[4] Per the applicants’ they on 4 June 2015 consulted their attorneys, who prepared the statutory notices to both respondents. Although the first respondent received its statutory notice, the second respondent denies having received same, and no proof of dispatch thereof was placed before court.

[5] On 12 July 2017 a summons was issued and served on the respondents. The applicants each claim R1,2 million from the first respondent, and R521 040.00 from the second respondent for malicious prosecution. The respondents pleaded to the summons in respect of the second applicant during September 2017 and in respect of the first and third applicants during March 2018 . All three pleas were amended during November 2018.

[6] The initial and amended pleas in respect of the first and third applicant contained the special plea of non-compliance with the Act. The initial plea in respect of the second applicant did not raise non-compliance with the Act and this was only pleaded in the amended plea filed during November 2018.

[7] The cause of action arose during January 2015, which dictates that the required statutory notices were to be given by July 2015. From the applicants’ versions they were aware that the statutory notices had to be given, through the conduct of their attorneys of record and later having been alerted by the various pleas filed in the applicants’ actions. The applicants knew by respectively March 2018 and November 2018 that they had to apply for condonation in terms of the Act.

[8] Section 3 of the Act provides 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 the 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 legal proceedings in question; or

(b) the organ of the 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) For purposes of subsection 2(a)-

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.

(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.”

[9] Since the summons was served on the second respondent within 3 (three) years after the cause of action arose, the question of prescription does not feature in this condonation application. Only the questions pertaining to good cause shown and prejudice to the respondents need to be considered.

[10] There are however other issue which calls for consideration. The first being that the application for condonation was only filed on 18 March 2019, being respectively 12 months and 5 months after the first and third applicants, and second applicant ought reasonably have become aware that such an application is necessary.

[11] The second respondent raised that the founding affidavit contains hearsay evidence and the replying affidavit is tainted by new matter calling for it to be struck out. The applicants in turn and during argument raised that the second respondents answering affidavit and confirmatory affidavits are fatally defective and amount to a nullity.

[12] It was argued by Mr Shakoane SC that the answering affidavit contains a fatal irregularity, in that the answering affidavit had been commissioned by a person who had an interest in the matter, founded thereon that such person is employed within the same office as the deponent. For this reason it was argued that the answering- and confirmatory affidavits ought to be disregarded. Reliance was placed on the regulations governing the Administering of Oath or Affirmation GNR. 1258 of 21 July 1972, more particularly Regulation 7.

[13] Regulation 7(1) states as follows:-

“A Commissioner of Oath shall not administer an oath or affirmation relating to a matter in which he has an interest.”

[14] In response it was argued on behalf of the second respondent that Regulation 7(1) needs to be considered in its entirety, as sub-regulation (2) provides an exception to the general rule provided for in sub-regulation (1). To this effect sub-regulation (2) states as follows:-

“The prohibition in sub-regulation (1) shall not apply to any affidavit or declaration mentioned in the schedule.”

[15] Per the schedule, a declaration taken by a Commissioner of Oaths who is not an attorney and whose only interest therein arises out of his/her employment and in the course of his/her duty, is therefore exempted from the general rule. This position was recently confirmed by the Supreme Court of Appeal in the matter of Kouwenhoven v Minister of Police and Others. [2]

[16] Ex facie the answering- and confirmatory affidavits, the Commissioner of Oath is one Mr Jan Daniël Schmidt, Chief of Staff at the National Director of Public Prosecution. There is no evidence before me to suggest that Mr Schmidt has an interest in the matter other than through his employment by the office of the National Director of Public Prosecution. The challenge to the affidavits on this basis must fail.

[17] The second respondent sought a striking out of the hearsay evidence contained in the founding affidavit, as well as the “new” matter contained in the applicants’ replying affidavit. In this respect it was contended by the applicants that in their replying affidavit, the applicants’ attorney of record despatched the statutory notice and that, although their attorney of record received an ‘acknowledgement of receipt’ from the first respondent, the applicants had been informed by their attorney of record that they were unable to locate the proof of postage of the Section 3 notice posted to the second respondent, and that this was probably due to an administrative error or a misfiling within the offices of the applicants’ attorneys.

[18] The applicants further allege that they were informed that since the letters were written on the same day, it is standard practice at their firm to have sent both letters off simultaneously to be posted. The applicants failed to attach a confirmatory affidavit by their attorney of record to this effect, nor did the applicants make any attempt to bring the hearsay evidence within the ambit of the Law of Evidence Amendment Act 45 of 1988. it was argued further that notwithstanding the fact that the applicants were made aware of the aforesaid shortcoming, they failed to deal therewith in their replying affidavit.

[19] It was argued that the second respondent is prejudiced, in that it would be expected to defend a case in circumstances where there is no admissible evidence having been placed before court. Reliance was placed on the matter of Mgobhozi v Naidoo N.O. and Others 3 BLLR 242 (LAC). It is trite that the prejudice a party suffers when hearsay evidence is allowed is procedural prejudice. Differently put

the second respondent would not have the benefit of cross examination.[3]

[20] The applicants, in their notice of motion, seek:-

“1. That applicants’ non-compliance with Section 3(1)(a)(b), and 2(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (‘the Act’) be condoned.

2. That the applicants are granted leave to proceed with the proceedings in the main action which have already been instituted in this matter.

3. That the applicants are granted leave to proceed with the proceedings herein as though the applicants have always been compliant with Section 3(1)(a)(b), and 2(a) of the Act mentioned in paragraph 1 supra.”

[21] From the relief sought it is clear that the applicants accept that they did not comply. The reason for not complying is then set out in paragraphs 10.5, 13.1 and 13.2 of the founding affidavit. In other words the applicants say that they believed that these notices were sent. However it is common cause alternatively not seriously disputed that that the second respondent did not receive same. The content of the affidavit therefor says nothing more than it was done alternatively we thought it was done, but we can’t prove it.

[22] Consequently, paragraph 10.5 does not constitute hearsay evidence, but paragraphs 13.1 and 13.2 does and are struck out as inadmissible. In my view and as alluded to above this does not detract from the case of the applicants as the relief sought is in any event wide enough to cover the circumstances that the statutory notice were not sent at all.

[23] It was further argued on behalf of the second respondent that the applicants have attempted to make out a case in their replying affidavit by including averments which ought to have been included in their founding affidavit. In this respect it was argued that the circumstances in respect of the prospect of success, and the reasons for the delay in lodging of this application, constitute new matter. In respect of these contentions the second respondent relied on the matter of Juta & Co Ltd and Others v De Kooker and Others[4] where the court accepted and quoted with approval what was said in the headnote of Shakot Investments (Pty) Ltd v Town Council of Borough of Stanger[5]:-

“In consideration of the question whether to permit or to strike out additional facts or grounds for relief raised in the replying

affidavit, a distinction must, necessarily, be drawn between a case in which the new material is first brought to light by the applicant who knew of it at the time when his founding affidavit was prepared and a case in which facts alleged in the respondent's answering affidavit reveal the existence or possible existence of a further ground for relief sought by the applicant. In the latter type of case the Court would obviously more readily allow an applicant in his replying affidavit to utilise and enlarge upon what has been revealed by the respondent and to set up such additional ground for relief as might arise therefrom.

[24] The heads of argument filed on behalf of the second respondent did not contend that the second respondent was prejudiced by the introduction of this new matter. The complaint seems to be that the new matter introduced by the applicants relates to evidence which seeks to support the applicants’ cause of action, and therefore it ought to have been within the applicants’ knowledge at the time of drafting the founding affidavit.

[25] The position in our law is that an applicant must stand or fall by the facts alleged in its founding affidavit. In the matter of Pountas Trustee v Lahanas[6] it was held that the facts contained in the founding affidavit form the main foundation of the application. These are the facts which a respondent is called upon either to affirm or deny. Since this is so, it is not permissible to make out new grounds for the application in a replying affidavit. These principles have been repeated in numerous judgments over the years.

[26] When the applicants in the present matter realised their omission in this respect (when it was raised by the second respondent), the applicants proceeded to file a replying affidavit containing a belated attempt to explain their delay. However, a common sense approached based on want of prejudice precludes the exclusion from consideration.[7] Accordingly the application to strike out is dismissed.

[27] The principle relating to condonation has been become well established in our law. The degree of non-compliance, the explanation there for, the importance of the particular case and the avoidance of unnecessary delay in the administration of justice are amongst the factors which usually weigh with the court in considering an application for condonation.

[28] It was held in Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA)[8] as follows:-

“… condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.”

[29] In Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd[9] it was found that in terms of Section 3(4)(b) a court may grant condonation if it “is satisfied” that the three requirements have been met. In practical terms this means the overall impression made on a court by the facts set by the parties. The learned judge continued to state that in general terms the interest of justice does play an important role in condonation applications.

[30] It is against the backdrop of the aforesaid principles that the present application has to be adjudicated. The applicants’ case can essentially be summarised as follows:

30.1 On 4 June 2015, when the applicants consulted their attorney of record, they gave instruction to sue, and their attorney of record wrote the statutory notices to the first- and second respondents.;

30.2 The applicants are unaware of any unreasonable prejudice which can be suffered by the second respondent as a result of not receiving the statutory notice, as the summons was duly served (during 2017) on the second respondent, and the claim was defended by the second respondent, filing various pleas on the merits;

30.3 The applicants’ case is amplified in their replying affidavit wherein the applicants state that this application was only launched pursuant to the matter being postponed during November 2018. The applicants were informed that they needed to attend the offices of their attorney of record in order to sign the affidavits in respect of the condonation application. It is further stated that:-

“The following week we were urgently called to Middelburg for temporary work and could not make it to the attorney’s firm. When we were called we agreed that we shall come during the December holidays for such purpose but we were delayed and by the time we returned, we could not get hold of our attorney of record as the firm was closed and had already gone on recess. In January due to the work we lost contact with each other and could not go to meet our attorneys.”

30.4 It was further stated that the applicants were unaware of the extreme urgency until February 2019 when they were called by their attorneys. However, the first applicant did not get a chance to make arrangements with the second- and third applicants, as he lost their contact details, and therefore only managed during mid-March 2019 to get a hold of the second- and third applicants, where after they proceeded to their attorney of record to sign the affidavits.

[31] In respect of prospects of success, it is submitted on behalf of the applicants that the cause of action is not in dispute as it is common cause that the applicants were arrested, charged and the prosecution against them was withdrawn.

[32] The period of delay, alternatively the complete failure to deliver the statutory notice to the second respondent, are not the only aspects which have to be considered, as the delay in filing the condonation application is equally important. If, for instance, it is found that there is no reasonable and acceptable explanation for the delayed filing of the condonation application, then it would follow that the application for condonation as a whole cannot succeed.

[33] The aforesaid position is clear from the Rance matter (supra), wherein the Supreme Court of Appeal held that “condonation must be applied for as soon as the party concerned realises that it is required.”

[34] In Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)[10] the Constitutional Court held that an applicant must give a full explanation for the delay and the explanation must cover the entire

period of delay.

[35] In the present application the applicants were required to serve the statutory notices by July 2015. From the facts it appears that although the statutory notices were drafted, to date hereof the statutory notice had not been served on the second respondent.

[36] The prescribed time periods in litigation seek to obviate inordinate delays which compromise the interest of justice insofar as time is the worst enemy of human memory. The statutory notice prescribed by the Act allows the Organ of State time to investigate the complaint and to possibly agree to payment or settlement without incurring the cost of litigation.[11]

[37] In respect of the post notification delay, for as far as the applicants were under the impression that the statutory notices were indeed sent, said impression was dispelled by March 2018 in respect of the first- and third applicants, and by November 2018 in respect of the second applicant. There is no explanation before court for the period March 2018 to November 2018 in respect of the first- and third applicants.

[38] The explanation relied on only deals with the circumstances applicable to all the applicants from November 2018 to March 2019 and is unsatisfaction and devoid of specificity. The applicants (or at the very least the first applicant who confirms having been in court on the date of hearing) knew a condonation was needed, they were told to attend to their attorneys for this purpose. When they were called, the date of which is unknown, they agreed to do it in December 2018. This was already a month after the trial was postponed for purpose of the condonation. No detail have been provided on when they return from Middelburg or when their attorneys closed for recess. It not explained why the applicants needed to go together or how they lost contact with one another resulted in an inability to attend to their attorneys for signature.

[39] There is further no explanation why the notice of motion is dated January 2019 , the founding and confirmatory affidavits deposed to in February2019 but the application was only launched a month later on 18 March 2019. Nor has the applicants attorneys of record confirmed or explained the time line in respect of which the application was drafted and steps taken by them leading up to the signature. The delay is therefore not explained fully and in such a manner that the explanation covers the entire period of the delay, in order for a Court to appearance how the delay came about.

[40] Mindful of the fact that not only the explanation for the delay, but also the prospect of success in the main action, are both important in determining whether condonation should be granted. Strong merits or a prospect of success will mitigate the fault of an applicant in setting out a poor explanation for the delay.[12] A court may then exercise its discretion in favour of the applicant, despite the poor explanation for the delay.

[41] In the present case the applicants aver that they were arrested and charged in circumstances where it was clear that there were no prospects of success in their prosecution. Further, the second respondent opposed the applicants’ bail application and continued to require that the applicants attend several further court appearances until the prosecution against the applicants were withdrawn.

[42] The main contention is however the absence of prospect of a successful prosecution. The applicants do not address why they consider the prospects to be absent save to base same on the fact that the charges were withdrawn.

[43] It was argued on behalf of the applicants that it is trite that once arrest and detention are admitted, the onus of proving the lawfulness thereof rests on the State.[13] As such, any failure to adequately deny aforementioned, including an unlawful prosecution, must result in a finding (for the purposes of this application) that the applicants showed a prima facie case against the respondents.

[44] It was further argued that the current application is aimed at condonation and not at a final determination of the cause of action. To this extent the eventual onus which would rest on the applicants in the main action is to prove the required elements of malicious prosecution, being (a) that the respondents set the law in motion; (b) that the respondents acted without reasonable and probable cause and (c) that the respondents acted with malice, and indeed that the prosecution of the applicants has failed.

[45] The prospect of success is only dealt with in the applicants’ replying affidavit, and nothing more is said other than that the applicants were arrested and the prosecution was withdrawn. Peculiarly it is stated that the cause of action, which is the basis of the applicants’ claim, is not in dispute. It is unclear as to what is meant by the aforesaid, but having regard to the applicants’ particulars of claim, only the following has been alleged:-

“7.1 The plaintiff was ordered to appear on court on 24 January 2014 while he was in custody and the plaintiff appeared in the Magistrate’s Court B, Tonga under case number B650/13. The second defendant through one of its prosecutors enrolled the matter and proceeded with the criminal prosecution of the plaintiff whereas it was clear that there were no prospects of successful prosecution.

7.2 The matter was later withdrawn as it was clear that there were no prospect of successful prosecution. The plaintiff has engaged the services of legal representative who had appeared several times at the court before this matter was withdrawn.

7.3 In the light of aforegoing the plaintiff claims from the second defendant in the amount of R521 040.00 …”

[46] The applicants did not alleged that aforesaid allegations as set out in the particulars if found to be true, would entitle them to judgment. Nor were any facts set out to suggest that those allegations could be substantiated by the applicants in some or other way.

[47] What is clear from aforesaid is that on the pleadings as they stand, the applicants inter alia did not allege that the second respondent acted maliciously and that it acted with the intention to injure the applicants. It was held as follows in the matter of Rance (supra):

“The court must be placed in the position to make an assessment on the merits in order to balance that factor with the cause of the delay as explained by the applicant. A porosity of detail on the merits will exacerbate matters for the creditor who has failed to fully explain the cause of the delay. An applicant thus acts at his own peril when the court is left in the dark on the merits of the intended action, i.e. where an expert report central to the applicant’s envisaged claim is omitted from the condonation papers.”

[48] The third requirement for condonation is for an applicant to prove that a respondent did not suffer unreasonable prejudice due to the delay. It was explained in the matter of Madinda (supra) as follows at par [12]:-

“There are two main elements at play in s 4(b), viz the subject's right to have the merits of his case tried by a court of law and the right of an organ of state not to be unduly prejudiced by delay beyond the statutorily prescribed limit for the giving of notice. Subparagraph (iii) calls for the court to be satisfied as to the latter. Logically, subparagraph (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. Moreover, what can be achieved by putting the court to the task of exercising a discretion to condone if there is no prospect of success? In addition, 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. As I interpret the requirement of good cause for the delay, the prospects of success are a relevant consideration. The learned judge a quo misdirected himself in ignoring them.”

[49] The applicants boldly contend that they are unaware of any prejudice to be suffered by the second respondent. “Good cause” primarily concerns an applicant’s conduct and its motive, whereas the absence of unreasonable prejudice shifts the focus onto the State Organ and the protection of its interest by receiving timeous notice.

[50] The second respondent alleges prejudice if condonation is granted, as the memories of those who are available are no longer reliable, as it would have been in 2015 when the applicants’ claim for damages allegedly arose. A period in excess of 6 (six) years has passed since the event which gave rise to the applicants’ claim.

[51] It is further alleged by the second respondent that the file was transferred from the office of the Director of Public Prosecutions (Pretoria) to Nelspruit, and that both the docket and the file are incomplete in setting out the handling thereof. There is nothing to suggest that had the statutory notice been timeously served on the second respondent, the docket would not be in its current state and I can therefore not agree with the second respondent’s contentions, that it would suffer undue prejudice.

[52] The applicants have failed to set out good cause in that they failed to properly explain the delay and failed to adequately deal with the prospects of success. I am therefore not persuaded, on an overall impression, that the applicants have satisfied the requirements set out in Section 3(4) of the Act. Having concluded as above and as held in Madinda (supra), the court does not have a discretion to condone the non-compliance in circumstances where some of the requirements are not met.

[53] The following order is made:-

1. The application is dismissed with costs.

DATE OF HEARING:

31 August 2021

DATE OF JUDGMENT:

07 October 2021

FOR THE APPLICANTS:

Adv Shakoane SC with Adv Hugo

Instructed by Mpho Mashiloane Attorneys

E-mail: nst@mashiloaneatt.co.za

Ref: Lit1409/Lit1424/Lit1426

FOR THE FIRST RESPONDENT: No appearance

FOR THE SECOND RESPONDENT Adv Mokhatla

Instructed by Du Toit, Smuts & Partners

E-mail: tboshoff@dtsnp.co.za

Ref: STA196/0126/S5/18

STA196/0127/S6/18

STA196/0128/S7/18

[1] Section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”)

[2]

(888/2020) [2021] ZASCA 119 (22 September 2021)

[3]

Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security 2012 (2) SA 137 (SCA)

[4] 1994 (3) SA 499 (T) at 510F to H

[5] 1976 (2) SA 701 (D)

[6] 1924 WLD 62

[7] Hidro-Tech Systems (Pty) Ltd v City of Cape Town and Others 2010 (1) SA 483 (C) at para 81; Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) at par [15]

[8] At 297H to J

[9] 2010 (4) SA 109 (SCA)

[10] [2007] ZACC 24; 2008 (2) SA 472 (CC) at par [20]

[11] Mohlomi v Minister of Defence 1997 (1) SA 124 (CC)

[12] Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at 317

[13] Mhaga v Minister of Safety and Security 2001 All SA 534 (TK)