Minister of Police and Another v Lekgari (413/22) [2023] ZANWHC 191 (17 October 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE: 413/22

Reportable: YES/ NO

Circulate to Judges: YES/ NO

Circulate to Magistrates: YES/ NO

Circulate to Regional Magistrates: YES/ NO

In the matter between:

THE MINISTER OF POLICE 1ST APPLICANT/DEFENDANT

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTION

2ND APPLICANT/DEFENDANT

And

ANDREW MOGOTSI LEKGARI RESPONDENT/PLAINTIFF

In re:

ANDREW MOGOTSI LEKGARI PLAINTIFF

THE MINISTER OF POLICE

1ST DEFENDANT

PUBLIC PROSECUTION

2ND DEFENDANT

ORDER

Order

(i) The late filing of the Rule 27 application is condoned.

(ii) The application for the upliftment of the bar is upheld.

(iii) The applicants are to take the next procedural step within 10 court days from this order.

(iv) The applicants are to pay the costs jointly and severally, the one paying the other to be absolved.

JUDGMENT

REDDY AJ

Introduction

[1] This is an opposed application in terms of which the applicants seek the upliftment of a bar to be enabled to file a special plea and plea in the main action. The applicants are cited as the Minister of Police as the first defendant and the National Director of Public Prosecutions as the second defendant. The plaintiff is Mr Andrew Mogotsi Lekgari (respondent).

[2] For ease of reference, I propose the refer to the defendants as the first and second applicants (collectively as the “applicants”). It axiomatically follows that the plaintiff will be referred to as respondent.

[3] The respondent raised certain points in limine, which was not proceeded with in the written heads, notwithstanding same, these points in limine have been addressed within the subset of this judgment. Mr. Masilo for the applicants and Mr. Riley for the respondent, agreed to this application being considered on the respective written heads of argument.

Background facts

[4] On or about 15 November 2017, at or near Mahikeng, the first applicant set the law in motion by arresting the respondent on an allegation of robbery with aggravating circumstances. The respondent was prosecuted by the second applicant in the Regional Court, Mahikeng. After a full-blown trial, the respondent was served with verdict of guilty. Pursuant to being convicted the respondent was subsequently sentenced to fifteen (15) years imprisonment. On 25 May 2021, on appeal, the respondent’s conviction and sentence was set aside which resulted in his liberation.

[5] Pursuant to the respondent’s release, the respondent issued summons claiming damages for actions founded on his unlawful arrest, detention, and malicious prosecution in the amount of R 2 850 000.00

accompanied by the customary ancillary orders.

[6] The summons was delivered on the first and second applicants. On 20 June 2022, the applicants delivered a Notice of Intention to Defend. On 22 July 2022, the applicants delivered a Notice in terms of Rule 7(1) of the Uniform Rules of Court (“the Rules), which was answered. What followed on 10 October 2022 was a notice in terms of

Rule 27 of the Uniform Rules of Court. The non-compliance with the next procedural step by filing a plea resulted in the applicants

being ipso facto barred.

[7] The legal inactivity of the applicants resulted in the respondent serving an application for default judgment on 1 November 2022. A Notice of Set down delivered on 29 November 2022 followed, indicating that the default judgment would be enrolled for 7 August 2023. At the hearing of the default judgment application, the applicant, whilst outside the confines of the court precinct, applied for a postponement of the default application. The respondent acquiesced to the postponement, consequently the application was postponed to 11 September 2023, for the hearing of the application for the uplifting of the bar. On 29 August 2023, the application to uplift the bar is delivered, which conflicted with the order of court in terms of the timelines.

[8] Within the subset of this application, an application for condonation was made for the late delivery of this application. To exercise its discretion whether to grant condonation, this Court must be appraised of all the facts and circumstances relating to the delay.

[9] In Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3[2000] ZACC 3; ; 2000 (5) BCLR 465; 2000 (2) SA 837 (CC), the apex court held that an application for condonation should be granted if it is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors outlined in Melane v Santam Insurance Co. Ltd: 1962 (4) SA 531 (A) at 532 C - F. Having considered the application for condonation, it is accordingly condoned in the interests of justice.

The applicant’s version

[10] The applicants founding affidavit had been deposed to by Mr. Masilo who had been seized with the main action. On 8 October 2022, pursuant to a bereavement in his family, Mr Masilo, left his office on route to his homestead in Polokwane. Two days later when the Notice of Bar was served at the office of the State Attorney, Mr. Masilo was unavailable. Naturally, the death of his sister caused Mr. Masilo to be unsettled and he left the office in haste, while his court files, which included the present one were unattended.

[11] On resuming his duties on 19 October 2022, some of the court files had been redistributed to candidate attorneys to assist with the flow of work. Notwithstanding a diligent search, the original file in this action was untraceable.

[12] On 7 August 2023, Mr. Riley representing the respondent contacted Mr. Masilo telephonically and raised the issue of the default order that he intended to pursue. Mr. Masilo being unable to locate the original file, decided to create a duplicate case file on 10 August 2023. At the time of the service of the Notice of Bar, the applicants were of the mind to request an indulgence from the respondent, as the case docket was yet to be furnished which contained information which was essential for the drafting of a plea.

[13] The case docket was received on 17 August 2023, followed by a scheduled consultation on 25 August 2023. The consultation ventilated the circumstances of the collateral facts which caused the arrest of the respondent. On the facts aerated it was opined the arrest, detention and the prosecution of the respondent was justifiable.

[14] In dealing with the aspect of good cause, Mr. Masilo reiterates the circumstances that have been alluded to supra. Turning to the concept of the existence of a bona fide defence, the applicants intend to raise a special plea of prescription, non-compliance with Rule 41A, and section 3 and 4 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. The applicants further intend to pursue Rule 18(10), for the applicants to reasonably assess the quantum of damages.

[15] On 19 October 2017, the complainant Mr. Khusello Bokwana, (“the complainant”) was the victim of a robbery wherein amongst others he was dispossessed of his motor vehicle. A criminal case was registered by the complainant resulting in further investigation being followed. The complainant was interviewed on 19 October 2017 by Detective Constable Magagane (“Magagane”) and he identified the perpetrators to Magagane.

[16] Further investigations on 14 November 2017, resulted in the viewing of the closed-circuit video footage. The respondent was identified from the CCTV footage as having committed the offence of robbery. On 15 November 2017, the respondent was arrested. The arrest of the respondent was founded on the identification by the complainant

coupled with the incriminating CCTV footage. The arrest of the respondent was therefore based on a reasonable suspicion that the

respondent had allegedly committed the offence of robbery.

[17] The prosecution of the respondent was initiated based on the evidence that had been uncovered. The failure of the second applicant to have prosecuted the respondent on the evidence that had been collated would have amounted to a dereliction of duty. On 31 October 2019 following a trial, the respondent was convicted and sentenced to fifteen (15) years imprisonment. A successful appeal by the respondent followed. Mr. Masilo declared that a successful appeal does not insinuate an unlawful arrest and detention or malicious prosecution.

[18] Mr. Masilo contends that the respondent will not be prejudiced if this Court was with the applicants in respect of the uplifting of the bar as no trial date has been allocated. If there is any prejudice, this can be cured by an appropriate cost order. As a collective, the applicants have a reasonable prospect of success on the merits, given the evidence that was at its disposal when the respondent was arrested and prosecuted. This will be borne out by the appeal record which will soon be discovered.

The Law

[19] The trite requirements to succeed in such an application, were enunciated in Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (OPA), Olivier AJ recorded that ‘good cause’ as set out in Rule 27(1) had to be shown and that the Court was accorded a wide discretion in that regard. In principle, that discretion should be exercised dispassionately on the conspectus of the application that the court is seized with, taking due cognizance of the particularities and exigencies. See: Gumede v Road Accident Fund 2007 (6) SA 304 (CPD) at 307.

[20] Rule 27 of the Uniform Rules of Court provides as follows:

“27 Extension of time and removal of bar and condonation

(1) 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 the 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.

(2) Any such extension may be ordered although the application therefor is not made until after the expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as it seem, meet as to the recalling, varying or cancelling of the results of expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3) The court may, on good cause shown, condone any non-compliance with these rules.

[21] As can be gleaned from Rule 27(3), the Court, may on good cause shown, condone any non-compliance with the Rules of Court. It therefore was peremptory for the applicants to establish the existence of good cause, why its application for condonation should be granted, to pave the way for it to deliver its pleas. Good cause in broad entails the consideration of the following:

(i) a reasonable and acceptable explanation for the default;

(ii) a demonstration that a party is acting bona fide;

(iii) that such party has a bona fide defence which prima facie has some prospects of success;

(iv) a full explanation of the default so that a court may assess the explanation. (See Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape) 2003 (2) All SA 113 (SCA), Chetty v Law Society Transvaal 1985(2) SA 756(A) at 764J -765E, Siber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 353 at 354 A (A))

(v) The aspect of good cause was reiterated in Dalhouzie v Bruwer 1970 (4) SA 566 (C) by adding two requirements. Firstly, the applicant should file an affidavit satisfactorily explaining the delay. Secondly, the

applicant should satisfy the court on oath that he has a bona fide defence. A third requirement has been added by authorities namely,

the granting of the indulgence sought must not prejudice the plaintiff.

(vi) In Smith NO v Brummer NO 1954 (3) SA 352 (O) at p358, five factors were highlighted where the courts have a tendency to grant a removal of bar.

(vii) In Ferris v FirstRand Bank Ltd 2014(3) SA 39 CC the Constitutional Court held that lateness is not the only considering factor. The test for condonation is whether it is in the interest of justice to grant it, which includes factors such as applicant’s prospects of success and the importance of the issue to be determined.

Discussion

[22] The timelines set out are irrefutable based on the pleadings. There is no underscoring that our law requires a full explanation in respect of the two periods of default, the first is before the notice of bar was served and the second relates to the period after the bar was served. This is because the notice of bar was served due to the applicants failure to plead. See Ingrosstrakh v Global Investments (Pty) Ltd and Others 2021 (SCA) at paragraph [22]. In my view, the applicants have failed to provide any satisfactory explanation for the two time periods mentioned. This by no means results in the dismissal of the application.

[23] With regards to the merits of the action, the applicants in my view has disclosed a valid and bona fide defence to show the necessary good cause. In respect of the prejudice to the respondent, I am mindful of the delays that can be attributed to the applicants. This can verily be cured by an appropriate cost order. In the final analysis the overriding criterion is the interests of justice.

[24] It serves no meaningful purpose to regurgitate trite principles in our law. The arrest, detention and the prosecution of the respondent was based prima facie on two strands of evidence which, if accurate, would amount to a bona fide defence on both the claims that are being pursued by the respondent.

[25] To cloud what appears to be an elementary exercise by trawling through technical objections and proposed special pleas loses sight of the heart of the application. The applicants have demonstrated that there is a bona fide defence. The list of criteria that constitutes good cause is not regarded as exhaustive, and the factors are not individually decisive but inter-related in the sense that the strength of one may compensate for the weakness in another. This fits squarely within the four corners of the present application.

[26] In respect of costs, an argument has not been made that a deviation from the usual cost order is called for. It is trite law that the issue of costs is within the discretion of the court. I see no reason for the applicants not to pay the costs for the indulgence that is requested.

[27] In the premises, I make the following order:

A REDDY

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG

APPEARANCES

Date of Hearing: 22 September 2023 Date of Heads received 02 October 2023 Date of Judgment: 17 October 2023 Counsel for Applicants: Mr M Letsoalo Attorney for Applicants: State Attorneys Cnr Sekame Road 1st Floor, East Gallery Megacity Complex Mmabatho Counsel for Respondent: Adv B Rilley Attorneys for Respondent: Jan Ellis Attorneys c/o: Loubser E & Associates Block 1, 1st Floor 4204 Palmer Cresent Leopard Park Mmabatho