Makhwelo v Minister of Safety And Security (2013/26724) [2015] ZAGPJHC 10; 2017 (1) SA 274 (GJ) (3 February 2015)

Makhwelo v Minister of Safety And Security (2013/26724) [2015] ZAGPJHC 10; 2017 (1) SA 274 (GJ) (3 February 2015)

The court found that the applicant's notice of intention to institute legal proceedings was timeously delivered, as the debt in a claim for wrongful arrest and detention becomes due upon release or termination of prosecution, not at the date of arrest. The respondent's late filing of a special plea created the urgency, and it cannot claim prejudice from the abridged time limits for answering the condonation application. The respondent failed to file an answering affidavit or demonstrate any genuine prejudice. Even if the notice was late, condonation would be granted as good cause exists and no unreasonable prejudice was shown. The urgent motion court was the appropriate forum given the...

Citation
[2015] ZAGPJHC 10
Parties
Applicant: Busani Makhwelo; Respondent: Minister of Safety and Security
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 February 2015
Case Number
2013/26724
Procedural Posture
Urgent Application / Application for Condonation of Late Statutory Notice Prior to Trial
Outcome
Application granted. The notice of intention to institute legal proceedings was timeously given, or alternatively, condonation is granted for late delivery. The first special dilatory plea is disposed of. Costs awarded to the applicant.
Judges
Spilg
Legal Topics
Institution of Legal Proceedings Against State, Condonation, Wrongful Arrest and Detention, Prescription, Urgent Motion Practice
Civil Procedure Delict Institution of Legal Proceedings Against State Condonation Wrongful Arrest and Detention Prescription Urgent Motion Practice

Case Brief

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Parties

Busani Makhwelo

Applicant

Minister of Safety and Security

Respondent

Procedural Posture

Urgent Application / Application for Condonation of Late Statutory Notice Prior to Trial

Legal Issues

  1. 1 Whether the applicant's notice of intention to institute legal proceedings against the respondent was timeously delivered in terms of section 3(2)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
  2. 2 Whether condonation should be granted for the late delivery of the statutory notice if it was not timeously delivered.
  3. 3 Whether the urgent motion court is the appropriate forum to hear the condonation application.

Ratio Decidendi

The court found that the applicant's notice of intention to institute legal proceedings was timeously delivered, as the debt in a claim for wrongful arrest and detention becomes due upon release or termination of prosecution, not at the date of arrest. The respondent's late filing of a special plea created the urgency, and it cannot claim prejudice from the abridged time limits for answering the condonation application. The respondent failed to file an answering affidavit or demonstrate any genuine prejudice. Even if the notice was late, condonation would be granted as good cause exists and no unreasonable prejudice was shown. The urgent motion court was the appropriate forum given the...

Court Disposition

Application granted. The notice of intention to institute legal proceedings was timeously given, or alternatively, condonation is granted for late delivery. The first special dilatory plea is disposed of. Costs awarded to the applicant.

Orders

  • It is declared that the notice of intention to institute legal proceedings against the respondent in terms of section 3(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 was timeously given, or alternatively, condonation is granted for late delivery.
  • The first special dilatory plea is disposed of.