Minister of Police v Jordaan (A222/2016) [2018] ZAGPPHC 565 (2 August 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: A222/2016

2/8/2018

In the matter between:

MINISTER OF POLICE

APPELLANT

And

L.J. JORDAAN

RESPONDENT

JUDGMENT

MAVUNDLA, J;

[1] The appellant appeals to this Court, with the leave to appeal having been granted by order of the Supreme Court of Appeal on the 7 March 2016, against the whole of the judgment and declaratory order of Legodi J, as he then was, that the respondent's notice dated 10 May 2010, dispatched by registered post on 14 May 2010, substantially complied with the provisions of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

[2] For purposes of convenience, the parties shall be referred to as in the court a quo.

[3] At the hearing of the appeal, the respondent's heads of argument, which had not found their way to the Court file although they bore the Registrar's official date stamp, were handed to the Court by counsel for the respondent. It would seem that it was not the respondent's fault that his heads of argument were not available to the Court much earlier, but the court's filling system and as such same are accepted.

BACKGROUND FACTS

[4] The matter is a sequel to the alleged unlawful arrest of the respondent by members of the South African Police Service ("SAPS" ) on 10 December 2009 in Makhado, Limpopo Province, on alleged charge of contravening Section 9 of Act 32 of 2007, and his detention at the police station until 11 December 2009 when the charges were withdrawn against him upon appearing at the Magistrate court on the last mentioned date.

[5] The plaintiffs erstwhile attorneys, Rauch Gertenbach, dispatched on 14 May 2010, approximately 5 months after the cause of action, a letter dated 10 May 2010, per registered post, giving notice of his intention to institute action against the Minister of Safety and Security, to the following address: "Minister of Safety and Security' Private Bag X 9080 Cape Town; per registered post." The defendant disputed that the aforesaid address was the correct one and denied having received such letter.

[6] In response to a letter from the defendant's attorneys of record, notifying of the plaintiffs failure to comply with the provisions of section 3 of Act 40 of 2002, the plaintiff addressed another letter dated 6 June 2011 to the Minister of Safety and Security; 7th Floor Wacht Huis, Pretorius Street 225, Pretoria 2000; stating therein that: "This must be seen as a Notice as intended in

section 3 (2) of Act 40 of 2002. We confirm that this letter is out of time and inquire whether you consent to condonation." It needs mentioning that neither the details of the cause of action as demanded by section 3(2) of the Act[1] nor reference to the letter of 10 May 2010 were made in this letter of 6 June 2011.

[7] According to the defendant, it became aware for the first time of the plaintiff's claim upon receipt of the letter dated 6 June 2011 , which was eighteen months after the cause of action. Summons were issued on 14 August 2011 and served upon the defendant on 18 August 2011 (twenty months after the cause of action.). The particulars of claim made no reference to compliance with section 3 of the Act.

[8] On 9 September 2011 a notice of intention to defend was entered on behalf of the defendant. On 15 September 2011 replying to the letter dated 6 June 2011, defendant refused to grant condonation. Defendant informed the plaintiff per letter dated 21 September 2011, that the particulars of claim lacked averments relating to compliance with the Act.

[9] On 21 September 2011 an application to amend his particulars of claim was served on the Minister. The amendment specifically referred to the provisions of section 3 and a copy of the letter of demand was attached to the notice of intention to amend, marked as Annexure "A". This annexure "A" is a letter by Rauch Grentbach Attorneys, dated 6 June 2011, addressed to: "Minister of Safety and Security; 7th Floor Watch House, Pretorius Street 225, Pretoria 2000."

[10] On 1 November 2011 defendant filed a special plea that there was no compliance with the Act and repeated this on 9 October 2012 in answer to a pre -trial question and insisted that a condonation application should be brought.

[11] On 6 December 2012 the letter dated 10 May 2010 was forwarded to the defendant by the plaintiff, and also discovered during the second pre-trial held on 15 November' 2013. The defendant objected to this letter on the basis that it had been forwarded to the wrong incumbent/ holder of office of post.

[12] On 15 November 2013 plaintiff requested the defendant to re-think its special plea. On 26 November 2013 defendant wrote to the plaintiff a letter confirming its stance at the pre­ trial, further indicated that it would revert. Defendant however never reverted to the plaintiff.

[13] On the 26 November 2013 the plaintiff amended his particulars of claim in terms of which he relied on the letter dated 10 May 2010, as compliance with the provisions of the Act.

[14] On 9 May 2014 plaintiff brought an application for condonation for the late delivery of the notice. This application for condonation was brought 4 (four) years and S (five) months after the cause of action arose.

[15] It is trite that the appeal court is only entitled to interfere with the exercise of discretion of the court a quo , if it was done capriciously or upon a wrong principle, if it has not brought an unbiased judgment to bear on the question or has not acted for substantial reasons; vide Van drew Esthuizen v S[2] Kunz v Swart and Others[3]; Rex v Dhlumayo and Another[4].

[16] A person who intend to institute an action against an organ of state, must serve a notice of his or her intention to institute such an action within six months from the date upon which such cause of action arose, setting briefly (i) the facts giving rise to such action and (ii) such particulars of such cause of action as are within his or her knowledge; vide 3 (1) and (2) of the Act.

[17] A person who intend to institute an action against an organ of state but failed to comply with the prescript of section 3 of the Act, may apply to court for condonation in terms of section 3(4){b) of the Act. The court may grant condonation of such failure if it is satisfied that: (i) the debt has not been extinguished by prescription ;(ii) good cause exists for the failure; (iii) the organ of state was not unreasonably prejudiced by the failure. The Court therefore has a wide discretion

[18] In an application for condonation the court will have regard to the following[5]:

(i) ls it in the interest of justice that condonation should be granted; in deciding the question of interest of justice, regard must be had to the following factors:

(a) The cause of the delay; (b) The explanation and reasonableness of the delay, covering the entire period of the delay; (c) The nature and defect causing the delay; (d) The effect of the delay in the administration of justice; and (e) The prejudice to be suffered by any of the other parties;

[19] With regard to condonation, the greater the degree of delay is, the less the prospects of success are, regardless of the strength of the grounds upon which the appeal is premised, in casu, the action; vide Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae)[6]; Immelman v Loubser[7]. In the matter of Madinda v Minister of Safety and Security[8] it was held that the determination of 'good cause' entailed a consideration of all of all those factors which have a bearing on the fairness of granting condonation and affecting the proper administration of justice. Relevant factors might include (i) the prospects of success in the proposed action, (ii) the reasons for the delay, (iii) the sufficiency of the explanation offered, (iv) the bona fides of the application, and (v) any contribution by the other persons or parties to the delay and the applicant's responsibility therefor.

[20] In casu, the facts speak for themselves that the plaintiff approached the court for condonation 4 (four) years and 5 (five) months after the cause of action arose. An applicant for condonation must set out fully the circumstances resulting in the delay which must cover the entire period of the delay and must expeditiously apply for condonation once he becomes aware of non-compliance; vide Tshivhase Royal Council; Tshivhase v Tshivhase[9].

[21] It needs mentioning that the granting of condonation is an indulgence. The applicant must satisfy the court that there was sufficient cause for the delay in bringing the application within a reasonable time. The onus invariably rest on the applicant who seeks an indulgence. The court, which has a wide discretion to be exercised judicially, must also have regard to the mental element of the applicant resulting in the delay. In this regard Moseneke J (as he then was), held in Harris v Absa Bank Ltd t/a Volkskas[10] that: "In my view, the mental element of the default, whatever description it bears, should be one of several elements which the court must weigh in determining whether sufficient or good cause has been shown to exist."

[22] In casu, it can hardly be said that it was in the interest of justice to grant condonation where: (i) the defendant was hopelessly out of time after having been informed much earlier that there was non-compliance and of the defendant's stance that he must bring an application for condonation; there is no reasonable explanation proffered for the inordinate delay; vide Minister of Agriculture and Land Affairs v CJ Range.[11] It can hardly be said that good cause was discharged, as required by 3{4)(b)(ii) of the Act.[12] The application for condonation, in my view, had to fail. In the matter of Madinda v Minister of Safety and Security[13] it was held that: "[16] The structure of s3 (4) is now such that the court must be satisfied that all three requirements have been met. Once it is so satisfied the discretion to condone operates according to the established principles in such matters , as to which see e.g. United Plant Hire (Pty) Ltd v Hill and Others 1976 (1) SA 717 (A) at 720E-G."

[23] In as much as the court seized with an application for condonation has discretion to exercise, such discretion must be judicially exercised. In casu, the court a quo, with respect, merely stated that this was a case for granting condonation, without applying its mind to the degree of the delay in bringing the

application for condonation. Needless to state that there was no explanation why the plaintiff chose not to bring the application for condonation promptly upon being informed that there was non-compliance, as far back as in September 2011. In as much, the court a quo held the view that this was a matter where condonation had to be granted, in my view; with respect it erred in that regard.

[24] The court a quo, in holding that the plaintiff had substantially complied with the provisions of the Act, took the view and held that the intention of the legislature in directing that service of notice in terms of section 3(1) be effected on the National or Provincial Commissioner

of Police, in casu, the Commissioner, was because it had been envisaged by the legislature that the Commissioner will be able to launch an investigation sooner than the Minister would therefore the effect of serving on 14 May 2010 as per the letter of 10 May 2010 substantially complies with section 3(1)(a) of the Act.

[25] In the matter of Al/pay Consolidated v Chief Executive Officer, SASSA[14] the Constitutional Court held that: "[30] Assessing the materiality of compliance with the legal requirements in our administrative law is, fortunately, an exercise encumbered by excess formality. Formal distinctions were drawn between 'mandatory' or 'peremptory' provisions on the one hand and 'directory' ones on the other, the former needing strict compliance on pain of non-validity, and the latter only substantial compliance or even non-compliance. That strict approach has been discarded. Although a number of factors need to be considered in this kind of enquiry, the central element is to link the question of compliance to the purposes of the provision. In this regard O'Regan J succinctly put the question in ACDP v Electoral Commission[15] as being 'whether what the applicant did constituted compliance with the statutory provisions viewed in the light of their purposes."

[26] In the matter of Maharaj and Others v Rampersad[16], the Appellate Court held that:

"The inquiry, I suggest, is not so much whether there has been 'exact' 'adequate' or substantial' compliance with this injunction but rather whether there has been compliance therewith. This enquiry postulates an application of the injunction to the facts and resultant comparison between what the positions is and what, according to the requirements of the injunction, it ought to be. It is conceivable that a Court might hold that, even though the position as it is not identical with what it ought to be, the injunction has nevertheless been complied with. In deciding whether there has been a compliance with the injunction the object sought to be achieved has been achieved are of importance..."

[27] The court has a wide discretion to grant condonation: "if the three criteria ins 3(4)(b) are met: that the debt has not been extinguished by prescription; that good cause exists for the creditor's failure; and that the organ of State has not been unduly prejudiced." That discretion may only be exercised, however , if these three criteria in s3(4)(b) are met; vide Minister of Safety and Security v De Wet.[17] In the same matter the Supreme Court of Appeal held that section 3 must be read as a whole. First it sets out the prerequisites for the initiation of action against an organ of Stat e: either a written notice or consent by an organ of State to dispense with the notice. Second, it states the requirements that must be met in order for the notice to be valid . And third, it states what the creditor may do should he or she have failed to comply with the requirements of ss(1) and (2); he or she may apply for condonation for the failure.

[28] In terms of section 4 of the Act the notice must be served on the organ of state by delivering it by hand or sending it by certified mail or subject to subsection 2, by sending it by electronic mail or by transmitting it by facsimile in the case of where the organ of the state is - (a) a national or provincial department mentioned in the first column of Schedule 1, 2, or 3 to the Public Service Act, 1994 (Proclamation No 103 of 1994), to the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 1, 2 or 3 opposite the name of the relevant national or provincial department.

[29] In casu, the letter of the 10 May 2009 was addressed to the "Minister of Safety and Security' Private Bag X 9080 Cape Town in Western Cape Province." The defendant denied that the aforesaid address was its correct address. He also denied ever receiving the said letter.

[30] In my view, section 4 must be read together with 5 of the Act which deals with service of process. Section S(b}(ii)(aa) to (bb) of the Act read together with schedule 1 of Public Service Act 1994 provides further that, where legal proceedings are to be instituted against The Minister of Safety and Security, the notice referred to in s3(1)(a) must be served to the National Commissioner of South African Police Services or to the Provincial Commissioner of the South African Police Services of the Province in which the cause of action arose.

[31] The National Commissioner's postal address is Private Bag X 463, Pretoria and physical address 231 Pretorius Street, Office Number 756-ih Floor Wachthuis Building. The address of the Provincial Commissioner of Limpopo is Private Bag X

9428, Polokwane and physical address No 44 Schoeman Street Polokwane . Limpopo Province

[32] In as much as the service may be effected on either the National or Provincial incumbent, the letter must nonetheless be remitted to the correct address. The importance of remitting to the correct address, can be gleaned from the matter of Mohlomi v Minister of Defence[18] where it was held that: "The conventional explanation for demanding prior notification of any intention to sue such an organ of government is that, with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide , before getting embroiled in litigation at public expense, whether it ought to accept, reject or settle them." The import of this is that the notice must be directed to the correct address and per registered post. Where the letter is sent to the provincial incumbent, it stands to reason that it must sent to the incumbent in whose jurisdiction the cause of action arose.

[33] In Sebola v Standard Bank[19] dealing with s129(1)(a) of the National Credit Act it was held that where a credit provider posts the notice, proof of registered despatch to the address of the consumer, will in the absence of contrary indication constitute sufficient proof of delivery. If, in contested proceedings the consumer avers that the notice did not reach him or her, the court must establish the truth of the claim. This is consonant with section 7 of the Interpretation Act 33 of 1957[20] The presumption of remittance and delivery is rebuttable. In casu the defendant denied the correctness of the address to which the notice was remitted and its receipt. The plaintiff did not attach proof of the remittance per registered post per neither relevant registered slip, nor the track and trace slip to prove the post office to which remittance was made.

[34] The court a quo held that: "it is not denied that the notice as per letter of 10 May 2010 was dispatched on 14 May 2010 to the correct address." This was factually incorrect. There was a dispute of fact in this regard and the court a quo should have decided the issue on the version of the defendant and such failure is in misdirection in my view.

[35] The plaintiff in an endeavour to comply with s 3 remitted the letter of 6 June 2011 to the Minister of Safety and Security; 7th Floor Wacht Huis, Pretorius Street 225, Pretoria 2000. This letter did not comply with the provisions of s3(2)(b) in that it did not set out (i) the facts giving rise to the debt/ the cause of action; and (ii) such particulars of such debt as are within the knowledge of the plaintiff. Neither did it incorporate by reference the contents of the letter of 10 May 2009. As such, the letter of 6 June 2011 was in no way in compliance with the prescripts of s3 of the Act and therefore it can hardly be said that there was

substantial compliance.; vide Nkisimane and Others v Santam Insurance Co Ltd.[21] The Legislature ordained what should be contained in the notice of demand, and this does not allow supplementation by reference to a letter which was not served per prescript; vide Blaauwberg Meat Wholesalers v Anglo Dutch Meats (Export s).[22]

[36] The fact that the letter of 10 May 2009 was later discovered by the plaintiff and forwarded to the defendant much later, does not cure the fact that there was no compliance with the prescripts of sections 3, 4 and 5. I am of the view, that there was no basis for the court to hold that there was substantial compliance in casu, as such the appeal should be upheld with costs.

[37] In the result the following order is made:

1. That the appeal is upheld and the and the declaratory order by the court a quo is set aside and substituted with the following order:

"(a) It is hereby ordered that the plaintiff's (respondent in the appeal) notice dated 10 May 2010 dispatched by registered post on 14 May 2010 does not comply with the provisions of Legal Proceedings against Organ of State Act 40 of 2002;

(b) The plaintiff(respondent in the appeal) is to carry the cost."

2. That the respondent is to carry the cost of the appeal.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

I agree

H.J. DE VOS

S. POTTERILL

I have read the judgment of Mavundla J. I agree with the order but disagree with paragraph [17]-[27] as they are irrelevant to the appeal before us. There was no application for condonation before Legodi J and thus no appeal lies against an application for condonation. Legodi J made a declaratory order. We thus could not entertain a condonation application .

DATE OF JUDGMENT : 02./ 08/ 2018

APPELLANT'S ADV

: ADV J F BARNARDT

INSTRUCTED BY

: STATE ATTORNEY PRETORIA

RESPONDENT'S ADV : ADV P VENTER.

[1] Section 3(2) of Act 40 of 2002 express in peremptory terms that: "A notice must- (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.". Needless to state that the letter must be served within six months; vide s3 (2)(a).

[1] Section 3(2) of Act 40 of 2002 express in peremptory terms that: "A notice must-

(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.". Needless to state that the letter must be served within six months; vide s3 (2)(a).

[2] 2009 (4) ALL SA 51 (SCA) at 53

[3] 1924 AD 618 at 655.

[4] 1948 (2) SA 677 (A).

[5] Vide e Thekwini Municipality v lngonyama Trust 2014 (3) SA 240 (CC) at 246 para [24].

[6] [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B

[7] 1974 (3) SA 816 at 824B-C.

[8] 2008{4)S31A2(SCA).

[9] 1992 {4 SA 852 (AD) at 859E-F.

[10] 2006 (4) SA 527 at 53C.

[11] 2010 (4) SA 109 SCA.

[12] 3(4)(b)(ii)

[13] [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at 318

[14] 2014 (1) SA 604 (CC) at 6160-F .

[15] African Christian Democratic Party v Electoral Commission and Others [2006] ZACC 1; 2006 (3) SA 305 (CC) in para 25.

[16] 1964 (4) SA 638 (A) at 646C-D.

[17] That discretion may only be exercised, however, if three criteria in s3 (4)(b) are met: that the debt has not been extinguished by prescription; that good cause exists for the creditor's failure; and that the organ of State has not been unduly prejudiced: [2008] ZASCA 103; 2009 (1) SA 457 (SCA) at 562 para [13].

[18] 1997 (1) SA124 {CC) at 128E.

[19] 2012 (5) SA 142 CC at para [87].

[20] Section 7, 'Meaning of service by post' , provides that- '9w)here any law authorises or requires any document to be served by post, whether the expression "serve" or "give" or "send", or any other expression issued, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

[20] Section 7, 'Meaning of service by post' , provides that-

'9w)here any law authorises or requires any document to be served by post, whether the expression "serve" or "give" or "send", or any other expression issued, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

[21] 1978 (2) SA 430 (AD) at 433H-434A-E.

[22] 2004 (3) SA 160 at 166 A-C.