Mathobela v Minister of Police and Another (417/2022) [2023] ZAMPMHC 38 (20 October 2023)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG, LOCAL SEAT

CASE NUMBER: 471/2022

(1) REPORTABLE: YES / NO

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

(3) REVISED.

DATE: 20 /10 /2023

SIGNATURE

In the matter between:-

JOHN MOLOI MATHOBELA

Applicant

and

MINISTER OF POLICE

First Respondent

NATIONAL DIRECTOR OF PUBLIC PROSECUTION Second

Respondent

JUDGMENT

GREYLING-COETZER AJ

[1] The applicant seeks condonation for his failure to comply with the preemptory provision of Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (“the Act”). The applicant further seeks costs to be paid by the First Respondent. The application is opposed by the First Respondent.

[2] The applicant was arrested on 26 June 2020 for alleged House Robbery with Aggravated Circumstances. The applicant appeared for his first court appearance on 29 June 2020 and applied for bail, which bail was denied. The applicant was discharged in terms of Section 174 of the Criminal Procedure Act 51 of 1977 (“CPA”) on 7 September 2021.

[3] On 26 October 2021 the applicant served a notice in terms of Section 3 of the Act on the National Commissioner of the South African Police Service, and on the Provincial Commissioner of the South African Police Service on an illegible date in December 2021. No allegation has been made that the applicant caused a similar notice to be served on the Second Respondent.

[4] On 1 February 2022 the applicant issued summons against the first- and second respondents. The first respondent in its plea resisted the applicant’s claim for remuneration for damages inter alia on the ground that the applicant failed to comply with Section 3(2) of the Act. Said plea was served on the applicant’s attorneys of record on 23 June 2022. Subsequent to this, an amended plea was served by the first respondent on 25 January 2023, again raising a special plea of non-compliance with the provisions of Section 3(2) of the Act.

[5] This application was served on the respondents on 16 May 2023.

[6] The relevant portions of Section 3 of the Act deals with the giving of notice of an intention to institute legal proceedings against certain organs of State. It provides as follows: -

“(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

...

(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.

….

(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.”

[7] These requirements must be shown to exist cumulatively and in conjunction with one another. In Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd[1] it was held that Section 3(4)(b) circumscribes a court’s power by requiring that it be satisfied that all the requirements are met and that said requirements must be established by an applicant.

[8] In Madinda v Minister of Safety and Security[2] it was held that the test for the court to be satisfied that the requirements mentioned in Section 3(4) of the Act are present,

involves not proof on a balance of probabilities, but “the overall impression” made on a court which brings a fair mind to the facts set up by the parties.

[9] The first requirement, whether the debt has not been extinguished by prescription, is not in dispute between the parties. Same is therefore not discussed.

[10] In respect of the second requirement of good cause shown, it was remarked as follows by Heher JA in Madinda (supra): -

“[10] The second requirement is a variant of one well known in cases of procedural non-compliance. … ‘Good cause’ looks at all those factors which bear on the fairness of granting the relief as between the parties and as affecting the proper administration of justice. In any given factual complex it may be that only some of many such possible factors become relevant. These 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 of other persons or parties to the delay and the applicant’s responsibility therefore.”

In paragraph [12] at 317C the learned judge continued as follows: -

“[12] … ‘Good cause for the delay’ is not simply a mechanical matter of cause and effect. 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. Strong merits may mitigate fault; no merits may render mitigation pointless. 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.”

[11] Considering that set out above, this court is also required to consider the delay in bringing the condonation application, as it might be relevant in adjudicating whether the applicant is entitled to the relief sought, but only to the extent as explained by the Supreme Court of Appeal in Madinda (supra) where it is held: -

“[14] One other factor in connection with ‘good cause’ in s 3(4)(b)(ii) is this: it is linked to the failure to act timeously. Therefore, subsequent delay by the applicant, for example in bringing his application for condonation, will ordinarily not fall within its terms. Whether a proper explanation is furnished for delays that did not contribute to the failure is part of the exercise of the discretion to condone in terms of s 3(4), but it is not, in this statutory context, an element of ‘good cause’…

[20] It is also true that, although her attorney received the rejection of the notice in the middle of October 2005, the appellant did not commence proceedings for condonation until July 2006. As I have earlier pointed out, unexplained delay which relates to the period after the notice was de facto given will ordinarily relate not to the establishment of good cause but to condonation…

…

[28] … But when he received that reply it must have been clear that all hope of concession was past. It was the delay thereafter until July 2006 which he should have explained but did not … Applications for condonation should in general be brought as soon after the default as possible. Thereby possible further prejudice to the other party and misconception as to the intentions and bona fides of the applicant can be lessened. A delay in making the application should be fully explained. The failure to do so may adversely affect condonation or it may merely be a reason to censure the applicant or his or her legal advisers without lessening the force of the application. I think that the latter is the correct attitude to take in the present matter in relation to the evaluation of whether condonation should be granted. Under the present statutory dispensation there is no time limitation on the institution of action and the appellant had until September 2007 (when her claim would have prescribed) to issue summons. The matter was clearly very much alive during the first half of 2006 and the State had no reason to think otherwise. Nor has the respondent suggested that it was prejudiced or misled by the additional delay.” (emphasis added)

[12] Similarly, the issue of bona fides and the prospect of success an applicant enjoys on the merits in the main action, together with the grounds advanced for the failure ought to be considered. As stated in Madinda (supra) and quoted above, strong merits may mitigate fault whilst no merits may render mitigation pointless.

[13] It is also accepted that the interest of justice plays a role in condonation applications, and that it is expected of an applicant to set out fully the explanation for his or her delay during the entire period of the delay, and such an explanation must be reasonable. A condonation application must be brought as soon as the party concerned realizes that it is required.

[14] In respect of the third requirement, it is not all and any prejudice that precludes the granting of condonation. It is only unreasonable prejudice. Prejudice in the form of unavailability of witnesses and records will be of particular importance under this requirement, but it may also contain other relevant features.

[15] The applicant in casu explained his failure to timeously give notice as contemplated in Section 3 of the Act relying on the fact that he is a lay person and was unaware of the preemptory provision of Section 3 of the Act. He explains that during October 2021, after he was discharged in terms of Section 174 of the CPA, he approached his attorney of record for advise at which time he was advised that he first needed to send a notice to the respondents in terms of Section 3 of the Act. He then instructed his attorney to dispatch the required notice, which notices were given to the First Respondent, in October 2021 and December 2021 as set out in paragraph 3 above.

[16] The applicant further contends that even in the event that he had known of the pre-emptory provision, it would not have been possible for him to do so, considering that he was detained until September 2021. The applicant had no cellphone with him and was confined to his cell in which he was detained.

[17] In respect of the merits of the main action, the applicant submits that he has been advised that he has a good case against the respondents.

[18] The applicant alleges that the respondents would not suffer any prejudice should this court condone the applicant’s failure to timeously provide notice in terms of Section 3 of the Act.

[19] The first respondent opposes this condonation application essentially on four grounds, firstly that the applicant had not proffered any reasonable explanation why the notice was not timeously served considering that the applicant was legally represented during his criminal trial, and his allegation that he could not do so, even had he known, because was incarcerated, lacks merit. Secondly, that the applicant has not explained why this condonation application was brought 11 months after the delivery of the first respondent’s special plea of non-compliance with the provisions of Section 3 of the Act. Thirdly, that the applicant failed to prove any factual basis for the contention that he has good merits against the respondents, or reasonable prospects of success in the main action. And lastly, that the applicant failed to contend that the first respondent would not be prejudiced by the inordinate delay in serving the prescribed notice and launching this condonation application at such a late stage.

[20] The applicant’s notice was provided approximately 10 months outside the 6-month period prescribed by the Act, and after the cause of action arose. Further, this present condonation application was issued approximately 11 months after delivery of the first respondent’s special plea.

Reasons for delay

[21] The applicant’s explanation for the initial 10 months’ delay was due to the fact that he was unaware of the requirement, and ancillary to that, due to his incarceration. He explains that immediately after being released from custody and consulting his attorney of record, within a month after his release, the notice was given. These allegations have not been seriously disputed by the first respondent, and should therefore be accepted.

[22] The applicant does not explain the further delay of 11 months, the applicant failed to deal therewith at all.

Sufficiency of explanation offered

[23] As to the applicant’s failure to act timeously, he has to at least furnish an explanation of his default sufficiently to enable the court to understand how it really came about, and to assess the conduct and motives.[3]

[24] Although it is so that ignorance of the law does not constitute a defense, the allegation that the applicant was unaware of the pre-emptory provision was not challenged with fact. Instead, the first respondent permissibly so sought to impugn the veracity of the applicant’s contentions by examining their inherent validity or probity in all the circumstances. It is indeed so that the applicant enjoyed legal representation of the Legal Aid Board during the criminal proceedings but the line of reasoning seeks the conclusion to be reached that every person involved in a criminal challenge should immediately whilst still embroiled in those criminal proceedings commence its pursuit of civil damages. Further that a person like the applicant must demand from the state funded legal representative in his criminal proceedings to also advise him on possible future damages he may or may not be able to claim from the state. Had it been shown that the applicant was aware of the pre-emptory provision of notice and failed to act thereupon it would be a

different position.

[25] The applicant’s contention that even had he known he would not have been able to act thereupon due to his incarceration, was denied and in this respect I agree with the first respondent, mere incarceration does not automatically oust a person ability to act upon a known pre-requisite as alleged by the applicant.

[26] On seeking legal advice and having been informed of the pre-emptory provision the applicant acted and the notice to the provincial office of the first respondent was sent within a month followed by the notice to the national office two months later. The explanation set out in respect of the initial period of delay appears to have been bona fide and sufficiently explained.

Prospects of success

[27] With regard to prospects of success, the applicant alleges that he has been advised that on the merits he has a good case against the respondents, and that it is in the interest of justice that the late notices be condoned.

[28] Further, in respect of the merits (which appear to be common cause) the applicant alleges that he was arrested on 26 June 2020 and that the details of the cause of action are contained in the summons. He explains that “from the moment of my arrest, I was kept under police detention without bail, until the case against me was heard and finalized on 7 September 2021, the court found that there was no court that could reasonably find me guilty under the circumstances under which I was arrested and I was discharged on 7 September 2021”.

[29] The applicant failed to provide any further specificity in respect of the prospects of success he alleges to possess. He does not take the court into his confidence by providing any further detail of his arrest, or an exculpatory version other than that set out above.

[30] In the replying affidavit the applicant suggests that the addressing of reasonable prospects of success as one of the elements of good cause is not a requirement in a condonation application.

[31] Although the strength of a case is not decisive,[4] lack of specificity and a factual basis being placed before court make it impossible to evaluate whether the applicant indeed has a prima facie case, as alleged, and it is relevant to the evaluation of the applicant’s bona fides. It is for the applicant to place before court the facts which will place the court in a position to make an assessment of the merits. If an applicant fails to do so, he or she does so at his or her own peril. As held in Minister of Agriculture and Land Affairs v CJ Rance (supra), “the prospects of success of the intended claim play a significant role. Strong merits may mitigate fault, no merits may render mitigation

pointless. The court must be placed in a 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 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, i.e., when expert reports central to the applicant’s envisaged claim is omitted from the condonation papers.”

[32] The first respondent’s opposing allegations do not assist the court in making aforementioned assessment or to balance this factor with the cause of the delay potentially tipping the proverbial scale. It alleges that the applicant, after his arrest on 26 June 2020, was subjected to a joint identification parade where he was pointed out by the complainant in the relevant case docket, and was denied bail by the court at his first court appearance. The first respondent contend that the arrest was justified in terms of the provisions of Section 4(1)(b) of the CPA, in that the applicant was arrested based on reasonable suspicion of having committed an offence listed in Schedule 1 of the CPA, namely House Robbery with Aggravated Circumstances. The first respondent proceeded to deal with the allegations set out in paragraph 8 of the particulars of claim, being that the applicant claims that the relevant case docket contained insufficient information for the SAPS to form a reasonable suspicion that the applicant had committed a criminal offence referred to in Schedule 1 of the CPA, alternatively that the applicant did not commit any criminal offence in the presence of the SAPS.

[33] It was argued that no detail was alleged or provided to demonstrate the insufficiency in the case docket as alleged. The first respondent however does not deal with what was indeed available when the arrest of the applicant was affected. Consequentially the consideration of the prospects of success in the matter does not add or detract from the matter. It is therefore a neutral factor.

[34] The period of delay in respect of launching this condonation application comes into play at this juncture and is a factor which can be off set by good prospects of success.[5] Its relevance being a consideration in a condonation and not relevant in terms of Section 3(4) of the Act. In the present matter this approximately 11-month delay has not been explained at all.

[35] In this respect it was held in Madinda (supra)[6]

“…A delay in making the application should be fully explained. The failure to do so may adversely affect condonation or it may merely be a reason to censure the applicant or his or her legal advisers without lessening the force of the application. I think that the latter is the correct attitude to take in the present matter in relation to the evaluation of whether condonation should be granted. Under the present statutory dispensation there is no time limitation on the institution of action and the appellant had until September 2007 (when her claim would have prescribed) to issue summons. The matter was clearly very much alive during the first half of 2006 and the State had no reason to think otherwise. Nor has the respondent suggested that it was prejudiced or misled by the additional delay.”

[36] I find a similar situation to be present in this matter. By the time the special pleas of the first respondent was raised the applicant attorneys were mandated to deal with the matter. The attorney was in control of the litigation. The word control is however used in the loose sense. The application should have been brought earlier and in not doing so the reasons for the delay ought to have been explained. That being so the first respondent could not have been under the impression that the claim is no longer pursued or alive, nor has there been a suggestion that the first respondent suffered further prejudice or was misled by the additional delay. Rather the opposite as the complete docket was able to be located.

Unreasonable prejudice

[37] The applicant alleges that no prejudice will be suffered by the respondents in the event of the court granting condonation. This is the extent of the allegations relating to unreasonable prejudice.

[38] The first respondent, in opposing, alleges that the first respondent will indeed suffer prejudice if condonation is granting, considering the efflux of time since the date of the applicant’s arrest and subsequent detention. The case docket could not, according to the first respondent, be traced up until the first day of trial, being 17 April 2023.

[39] The enquiry into unreasonable prejudice shifts the focus from the conduct of the person applying for condonation to the effect of the non-compliance on the interest of the respondents.[7] The unreasonable prejudice complained of must, of necessity, be related to the delay in giving the notice. In other words, it is only the prejudice that arose between June 2020 (6 months after the cause of action arose) and 10 October 2021 (when the notice was given) that is relevant.

[40] On this front the first respondent, other than complaining about the efflux of time without specified consequences ensuing, did not demonstrate before that it has been unreasonably prejudiced in the circumstances.

[41] In the circumstances, I find that the applicant application has merit. it is in the interest of justice that the court accepts the explanation proffered by the application for the late notice to the first respondent as adequate and thus condone his non-compliance with the time periods for the giving of notice to the first respondent as envisages in sections 3(2)(a) and (b) of the Act.

[42] It is trite that when a party seek condonation it is asking for an indulgence. it is for that reason that such party is usually ordered to bear the costs of the condonation application. This is so unless there are circumstance, such as an unwarranted opposition, justifying a different order. The first respondent’s opposition cannot be categorized as such.

[43] By reason of aforementioned, the following order is made: -

1. The late service by the applicant of the notice in terms of Section 3 of the Act 40 of 2002 upon the first respondent is condoned.

2. The applicant is to pay the cost of this application.

HEARD: 20 July 2023 JUDGMENT: 20 October 2023 FOR THE APPLICANT: Adv S Mpakane Instructed by JM Modiba Attorneys E-mail: Kopman@jmmodibaattorneys.co.za FOR THE FIRST RESPONDENT: Adv MO Letsoko Instructed by Office of the State Attorney Mbombela E-mail: MMsiza@justice.gov.za

[1] 2010 (4) SA 109 (SCA) at par [11]

[2] 2008 (4) SA 312 (SCA)

[3] Silbert v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 342 (A) at 353A, cited with approval in Madinda (supra) at par [11]

[4] Madinda (supra) at par [18.1]

[5] Madinda (supra) at par [14]

[6] Madinda (supra) at par [28]

[7] Madinda (supra) at par [15]