Minister of Safety and Security v Rall (CA160/2020) [2021] ZAECGHC 66 (20 July 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA160/2020

Date heard: 28 May 2021

Date delivered: 20 July 2021

In the matter between

MINISTER

OF SAFETY AND SECURITY Appellant

and

NATALIE

RALL Respondent

JUDGMENT

KRüGER AJ

Introduction

[1] This matter came before this court by way of a notice of appeal from a judgment of the Regional Court, Port Elizabeth. The Regional Court granted condonation for the failure on the part of the applicant in the court a quo, Ms Natalie Rall, the respondent in this court, to comply with the statutory requirements of service of a notice of intention to institute legal proceedings[1] against an organ of state, the Minister of Safety and Security.[2]

[2] The appellant contended that condonation was granted in error by the regional court magistrate, and that the findings of fact of the learned magistrate did not support her granting condonation. The respondent opposed the appeal and supported the finding of the magistrate.

[3] Ms Crouse, for the respondent, noted that the appeal was not properly before this court as it was noted out of time, and was not accompanied by an application for condonation. She submitted that the Rule 51(1) request for reasons in terms of Magistrates’ Courts Rules delivered by the appellant was unnecessary as a written judgment, dated 12 December 2019, was handed down. The delay in filing the notice of appeal on 21 August 2020, according to the respondent, could directly be attributed to the unnecessary request for reasons filed on 6 January 2020. Ms Crouse asked the court to express its displeasure at the practice of requesting reasons where a written judgment was handed down. However, she indicated that the issue of the appeal not being properly before the court would not be pursued.

[4] Ms Appels explained that the state attorney, as a matter course, requests magistrates in matters where it intends to pursue an appeal, to provide reasons for the judgment as provided for in Rule 51(1). It did so in this instance too. No response was forthcoming from the magistrate which delayed the filing of the notice of appeal.

[5] It is necessary to briefly comment on the respondent’s submission. The wording of Rule 51 does not limit requests for reasons to instances where no written judgment has been provided. In fact, Rule 51(8) refers to the magistrate providing reasons having regard to any written judgment handed down. The two are thus not mutually exclusive. The request to this court to express displeasure at the practice to request reasons where a written judgment has been provided is thus without basis.

[6] The appeal is properly before the court. Before turning to the facts and submissions of the parties, I outline the legal framework regulating granting of condonation in terms of section 3(4) of the Act.

The applicable legal framework

[7] The institution of legal proceedings against an organ of state must be preceded by a written notice of a prospective litigant’s intention to institute proceedings. Such notice must be served on the organ of state at least six months from the date on which ‘the debt became due’.[3]

[8] The purpose of the notification requirements in terms of the Act is to enable an organ of state to investigate the basis of the proposed claim against it, and to decide on an appropriate response to that claim in the light of its findings[4] Early notification of an organ of state regarding intended litigation is required since the machinery of state within a particular organ of state involves complex arrangements dealing with multiple claims which requires investigation, analysis, prioritisation and decision-making before entering into litigation.[5]

[9] Should a litigant fail to serve such notice, in time, or at all prior to instituting legal proceedings, the organ of state may raise a special plea based on non-compliance with the requirements of the Act. In such circumstances, section 3(4) of the Act allows for a condonation application of the failure to be made to court. In providing for possible condonation, the Act strikes a balance between the litigant’s right of access to court and protecting organs of state from unreasonable prejudice as a result of non-compliance with the failure to comply with the Act.[6]

[10] A court has a discretion to grant the application for condonation of non-compliance with the service of the notice if it is satisfied that,

‘3(4)(b)(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.’

[11] In considering an appeal against an order granting condonation, Cloete JA in Premier, Western Cape v Lackay[7] held that

‘… an appellate court is in my view at liberty to decide the same question according to its view as to whether the statutory requirements have been fulfilled, and to substitute its decision for the decision of the court of first instance simply because it considers its decision preferable’.

It is evident that Lackay supports a wide discretion on the part of the court of appeal. This court is not restricted on appeal to consider only possible ‘mis-directions’ on the part of the court of first instance and may exercise its judicial discretion to determine whether condonation should be granted.

[12] The requirements of section 3(4)(b) must be considered ‘conjunctively’ and must be established by the applicant for condonation.[8] It is not for an applicant in a condonation application to provide proof on a balance of probabilities that condonation should be granted. Heher JA in Madinda v Minister of Safety and Security[9] confirmed this, and explained that the phrase ‘if [the court] is satisfied’ depends on ‘the overall impression made on a court which brings a fair mind to the facts set up by the parties.’[10]

[13] In Madinda, Heher JA explained that ‘”[g]ood cause” looks at all those factors which bear on the fairness of granting the relief as between the parties’[11]. The learned judge outlined the factors that may be relevant in the determination of ‘good cause’ as the prospects of success, the reasons for the delay, the adequacy of the explanation for the delay, the bona fides of the applicant, whether other persons contributed to the delay and what the applicant’s responsibility was insofar as the delay was concerned. ‘Good cause’ concerns the applicant’s conduct and motives. [12]

[14] The prospects of success concern the merits of the main action which are dependent on the fact of the particular case. In assessing ‘good cause’, the prospects of success are linked to the delay to give notice. Of this, Heher JA in Madinda said ‘strong merits may mitigate fault; no merits may render mitigation pointless’. Importantly, an applicant must provide 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’.[13] The explanation provided by an applicant may thus serve to mitigate fault on his or her part in causing the delay.

[15] The applicant must provide an explanation for the delay which covers the full period of the delay which must be reasonable.[14] The application for condonation should outline the applicant and other persons’ role in the delay, as well as the applicant’s bona fides.

[16] A party must apply for condonation as soon as he or she realises that condonation for non-compliance is required, and any delay must be explained. Matojane AJA’s statement in Minister of Public Works v Roux Property Fund (Pty) Ltd explained:[15]

‘By 10 October 2014 when the special plea was filed the respondent was aware that the appellant relied upon non-compliance with the provisions of s 3 of the Act. One would have expected it to bring an application for condonation immediately. Instead it delayed for over three years. The respondent does not explain why over three years elapsed before it could bring the condonation application and what efforts it took to expedite the claim’.[16]

[17] The explanation provided for a delay in bringing the condonation application does not relate to ‘good cause’ for the failure to give notice as required by the Act, but it nevertheless impacts on the decision to grant condonation. Heher JA in Madinda clarified this as follows:

‘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'. This is a distinction which the learned judge did not draw or maintain and I think he was wrong not to do so.’

‘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.’[17]

[18] The last requirement shifts the focus to the organ of state in the application for condonation and concerns the protection of its interests by receiving timeous notice.[18] This specific separate requirement indicates that the legislature requires that ‘due weight [should be given] to both the individual’s right of access to justice and the protection of the state interests in receiving timeous and adequate notice’.[19] Information received from the parties about unreasonable prejudice caused by the delay must not be ‘general and unspecific’, but must pinpoint particular facts which indicate prejudice.[20]

[19] It is against the background of the court’s ‘overall impression’ in respect of the information provided regarding all of the factors, that it has to exercise its discretion judicially, in fairness to both parties[21] and the interests of justice.[22]

The facts and submissions of the parties

[20] It is common cause that the respondent was arrested on 25 August 2012 and detained until 27 August 2012 on a charge of perjury. She was subsequently charged with contravention of section 9 of the Justices of Peace and Commissioners of Oaths Act 16 of 1963 and acquitted. The respondent was represented in the criminal matter by an attorney, Mr Kuban Chetty.

[21] Almost two years after her arrest and detention, on 11 September 2014, the respondent caused notice of her intention to institute legal proceedings against the appellant to be served by Mr Chetty.

[22] In April 2015, summons claiming damages for the alleged unlawful arrest and detention of the respondent was issued from the Regional Court and served on the state attorney representing the appellant.

[23] On 24 July 2015, the appellant delivered a plea and a special plea to the claim of the respondent. The special plea related to non-compliance with section 3(2) of Act which requires notification within six months of the debt becoming due. In this instance that is the cause of action arising, which is the alleged unlawful arrest and detention of the respondent that took place on 25 August 2012.

[24] Just shy of four years later after delivery of the plea and special plea, in July 2019, the respondent applied for condonation for her failure to comply with the notification provisions of the Act to the Regional Court.

[25] The application was heard on 31 October 2019 and judgment granting condonation was handed down on 12 December 2019.

[26] The appellant submitted that the magistrate erred in finding that the respondent met all the statutory requirements for condonation; erred in finding that the respondent’s prospects of success mitigate her poor explanation for the delay; and erred in exercising her overall discretion to grant condonation.

[27] The appellant contended that the respondent failed to show good cause as required by the Act. In particular, the appellant submitted that the respondent failed to provide a full explanation for the excessive delay in pursuing the matter which is central to a finding that good cause exists. The appellant further submitted that the magistrate made factual findings which did not support the conclusion reached to grant condonation. For example, the magistrate found that the explanation provided lacked detail and did not explain the delay on the part of the respondent, but yet found good cause to exist. Furthermore, the appellant contended that the magistrate failed to find that the respondent lacked bona fides. The appellant noted that the respondent did not disclose that she was legally represented by the same attorney who represent her in the civil matter in her founding affidavit. Also, the appellant pointed out that the respondent changed tack insofar her explanation for the delay is concerned. In her founding affidavit, the respondent explained that she consulted with various attorneys after the criminal trial in an attempt to find representation to pursue a civil claim. However, in her answering affidavit she explained that she owed money which she paid off and only instructed Mr Chetty thereafter. The appellant further took issue with the magistrate's engagement with

the merits of the matter beyond the papers before the court, and with the magistrate's finding that the good prospects of success of the respondent mitigate the poor explanation provided. On the merits, Ms Appels referred us to the unreported judgment of this court in Nelson v Minister of Safety and Security[23] in which the court found that arrest on one charge may justify prosecution on a different charge, thus contesting the court a quo’s finding in relation to the merits of the matter. With reference to Madinda[24] the appellant argued that good prospects on the merits may mitigate fault for the delay and not an insufficient or a poor explanation.

[28] The appellant submitted that the unreasonable prejudice to it had not been taken into consideration by the magistrate. In particular, its key witness, the arresting officer, passed away in 2018. In this regard, Ms Appels referred us to the case of the judgement of the Supreme Court of Appeal in Roux[25] in which the court remarked on the unavailability of witnesses as a result of a long delay in pursuing a matter and its relevance in considering unreasonable prejudice to the other party.

[29] In so far as the overall discretion to grant condonation is concerned the appellant contended that the delay on the part of the respondent to apply for condonation four years after the delivery of the special plea should weigh against her, as should her pre-notice delay of more or less 18 months. The appellant submitted that the magistrate failed to exercise her discretion in a judicial manner, and that this court should substitute the decision to grant condonation with its own.

[30] The appellant took issue with the blame put at the door of the appellant in not setting down the special plea for determination. In this the appellant contended that the magistrate failed to take into consideration that the respondent is dominus litis and that she bore the duty to apply for condonation as soon as she knew that it was necessary.

[31] Ms Appels requested us to uphold the appeal with costs, including that of counsel and to substitute the order of the Regional Court with one dismissing the application for condonation with costs, including costs of counsel and to dismiss the claim of the respondent with costs. In support of the request to dismiss the claim, counsel referred us to the order granted in Roux.[26]

[32] Ms Crouse, on behalf of the respondent, submitted that while this court may substitute its decision for the exercise of discretion by the regional court magistrate, it should not do so lightly. She urged this court to restrict its consideration of the matter to determining whether the statutory requirements have been met. If the court finds these requirements to have been met, Ms Crouse requested the court not to substitute the discretion of the court a quo.

[33] Ms Crouse argued that the legislative requirements for condonation were met: the respondent explained her reason for the delay owing to outstanding fees, she has good prospects of success on the merits as she was charged for an offence different to that for which she was arrested, indicating that no reasonable grounds for arrest without a warrant existed, and lastly, that is was demonstrated that the appellant suffered no unreasonable prejudice. In particular, Ms Crouse pointed out that the delay instituting the application for condonation should not be considered as part of the determination as to whether good cause existed.[27]

[34] Additionally, in support of the argument that the condonation was correctly granted, Ms Crouse emphasised that the constitutional rights of the respondent were infringed by the actions of the police. She urged us to consider the infringement of the respondent’s fundamental rights in the assessment of this appeal, and a claim for damages flowing from the infringement of dignity, should viewed differently to claim for damages flowing from a commercial transaction.

[35] Ms Crouse submitted that the that the relief requested by the appellant to dismiss the claim of the respondent was not pleaded and that, as such, it should not be considered. She requested us to dismiss the appeal with costs.

Analysis

The approach on appeal

[36] The Act creates a uniform regime in respect of institution of legal proceedings against organs of state as is evident from its long title and stipulated pertinently in the preamble thereof:

‘AND RECOGNISING the need to harmonise and create uniformity in respect of the provisions of existing laws which provide for-

- different notice periods for the institution of legal proceedings against certain organs of state for the recovery of a debt, by substituting those notice periods with a uniform notice period which will apply in respect of the institution of legal proceedings against certain organs of state for the recovery of a debt’.

The submission on behalf of the respondent that alleged infringements of human rights require a different, perhaps less stringent compliance with requirements of section 3(4) is without base. Roux and Rance, insofar as the interpretation of the requirements of section 3(4) are concerned set precedent that is as binding as that set by Madinda and Lackay. However, this matter, as all others, must be determined on its own facts.

[37] Lackay clarifies the role of a court hearing an appeal on a section 3(4) condonation application.[28] On appeal, this court is not limited to the consideration of possible mis-directions on the part of the court a quo, but it has a wide discretion to determine whether the requirements of section 4(3)(b) have been met, and it may substitute the exercise of discretion of the court of a quo ‘simply because it considers its decision preferable’. The analysis proceeds on this basis.

The requirements of section 3(4)(b)

[38] Each of the requirements of section 3(4)(b) is considered seriatim. The respondent must meet all three requirements in order for the court to exercise its discretion whether to grant condonation or not.

Requirement 1: an existing claim?

[39] It is not contested that the debt in the matter, the claim for damages as flowing from the respondent’s alleged unlawful arrest and detention, has not been extinguished by prescription. Summons interrupting prescription was issued on 2 April 2015 and served on the Minister on 20 May 2015, well before the prescription of the claim in August 2015. Accordingly, the respondent had an existing cause of action before the court of first instance at the time of the application for condonation. No further discussion of this aspect is necessary.

Requirement 2: good cause?

[40] In addition to asserting that she lacked knowledge about the requirement of notice, the respondent offered two explanations for her failure to provide timeous notice. In the first instance, she stated that she sought the advice of other attorneys on pursuing a civil claim after the finalisation of the criminal matter but was unable to secure representation, and secondly she stated that she owed money to her attorney following the criminal trial.

[41] In Skom v Minister of Police, In Re: Singatha v Minister of Police,[29] Roberson J, in response to contention by plaintiffs who were met with special pleas of prescription based on the fact that they were prevented from seeking legal advice in respect of a civil claim by their incarceration, stated:

‘I am of the view that their mere incarceration did not prevent them from giving instructions to an attorney to institute proceedings on their behalf. They were not detained in terms of legislation which prevented them from having access to an attorney or vice versa. (See for example Magubane v Minister of Police 1982 (3) SA 542 (NPD) and Montsisi v Minister of Police 1984 (1) SA 619 (AD) dealing with detention in terms of s 6 of the Terrorism Act 83 of 1967.) They were legally represented during their criminal trials, and presumably elected to have such representation. They did not plead that their detention made it “difficult or awkward” to instruct an attorney to institute proceedings and to suggest that it did so is to speculate.’

[42] The respondent, in explaining her delay, stated that she only instructed Mr Chetty after clearing her debt to him. She did not indicate that her debt to him barred her from instructing him in civil proceedings. There is no evidence to suggest that the respondent could not have instructed Mr Chetty in the civil matter at the time of his conducting the criminal defence. To deduce that she was unable to give instructions to earlier would be speculation. Further, the respondent did not provide any details regarding the attorneys she consulted prior to giving instruction to Mr Chetty in the civil matter. The explanation of the respondent, as the learned magistrate found, lacked detail, and I would add, invites speculation. As, it is unreasonable.

[43] An explanation provided for the delay enables a court, among other things, to assess the bona fides and motives of an applicant for condonation. The inadequacy of the explanation relating to the search for legal representation, and the insufficiently explained subsequent addition regarding outstanding fees point to a lack of bona fides on the part of the respondent. She did not take the court into her confidence when she brought her application for condonation; she failed to disclosed that she was represented in the criminal trial by the same attorney, and then had little choice but to admit to that when her representation by Mr Chetty was raised by the appellant in his answering affidavit. It was only at that point that the respondent raised the issue of outstanding fees as a cause for the delay.

[44] The delay of four years to bring the application for condonation after delivery of the special plea is not relevant to the determination of the ‘good cause’ for the delay to serve the notice as held in Madinda, but as held in that matter and in Roux, the delay to institute proceedings must be considered in the overall exercise of the discretion to grant condonation or not. At this stage, further comment on the four-year delay to bring the application is not necessary.

[45] The respondent relied in the court a quo and in this court on her good prospects of success to counter the long delay in giving notice timeously. Good prospects of success may neutralize fault on the part of the respondent in causing the delay, but not the delay itself.[30] In this instance, the respondent did not explain the reasons for the delay and her fault therein, or that of others, adequately. This lack of detail makes if difficult, if not impossible to offset the fault on the part of the respondent against the prospects of success in the matter.

[46] In assessing the prospects of success of the respondent, the court a quo considered the merits of the matter in detail with significant attention being paid to the initial charge of perjury on arrest, and the subsequent charge on a statutory offence of which the respondent was eventually acquitted. The court a quo’s assessment of the merits, and particularly in relation to the change in the charge seemed to have persuaded it to grant condonation for non-compliance with section 3(4), despite finding the explanation of the respondent inadequate. It may be that an applicant for condonation has excellent prospects of success, but that on its own does not determine that condonation should be granted. The court hearing a condonation application should consider the prospects of success as those relate to good cause, and the extent to which those negate fault on the part of the applicant for condonation. The lack of detail regarding the reasons for the default, and particularly, in respect of the role of the respondent or that of others, make it difficult to determine what weight her prospects of success should carry in determination of good cause.

[47] In view of the analysis in relation to the different factors impacting ‘good cause’ above, I am of the view that the respondent has failed to show good cause for the failure on her part to give timeous notice as required by the Act.

Requirement 3: unreasonable prejudice to the organ of state?

[48] This requirement turns the focus to the position of the organ of state in the litigation. The submission of the appellant in this court and in the court a quo was that it would suffer unreasonable prejudice if the matter were to go to trial since its key witness, the arresting officer, passed away. On appeal, it was submitted that this was not considered by the court a quo. The learned magistrate expressed the view that the appellant could have set the matter down for the special plea to be heard to avoid prejudice to it. The suggestion that the appellant could have caused the special plea to be heard does not take account of the submission regarding prejudice because of unavailability of the witness. In Roux, as Ms Appels pointed out, the SCA held that unavailability of witnesses who were no longer in the employ of the organ state some three years after the special plea of non-compliance was raised, to be unreasonably prejudicial to the organ of state in that matter. In this matter the delay in bringing the application for condonation is four years for which the respondent provided no explanation. This delay exceeds the delay in Roux and in this instance the key witness is deceased and not merely difficult to trace. In my view, the respondent, while not carrying a burden of proof in the ordinary sense, has failed to satisfy the court that the appellant has not been unreasonably prejudiced by the failure to serve the notice timeously.

Conclusion: requirements

[49] The respondent failed to meet the three requirements for condonation in terms of section 3(4)(b) of the Act and the question of the court exercising its discretion does not arise.

Remedy

[50] Ms Appels, relying on Roux, asked the court to dismiss the respondent’s claim against the appellant as part of it order. In Roux, the parties agreed to include such an order were condonation not to be granted. This is not the case in the current matter. Ms Crouse correctly pointed out that the request to dismiss the claim was not pleaded. Such an order cannot be granted.

[51] As it is customary, it is appropriate for costs to follow suit in this matter and in the court a quo.[31]

[52] Order

a. The appeal is upheld with costs.

b. The order of the Regional Court of 12 December 2019 is set aside and substituted with the following order.

i. The application for condonation in terms of section 3(4) of the Act is dismissed;

ii. Costs to follow suit.

______

R Krüger AJ

Acting Judge of the High Court of South Africa

Beshe J,

I agree. It is so ordered.

N G Beshe

Judge of the High Court of South Africa

On behalf of the Appellant: Adv Appels

Instructed by: State Attorney c/o Zilwa Attorneys, Ms van Rooyen

On behalf the Respondent: Adv Crouse SC

Instructed by: Kuban Chetty Inc c/o Neville Borman & Botha, Mr Powers

[1] In terms of section 3(1) and (2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. Referred to as ‘the Act’ hereafter.

[2] The nomenclature of the portfolio has changed, and the national minister responsible for police services is now the Minister of Police.

[3] Section 3(1) and 3(2) of the Act.

[4] See Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC).

[5] Ibid, see also Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA) paras 13 and 38. Hereafter referred to as ‘Rance’

[6] See also HL v MEC for Health, Free State [2018] 1 All SA 522 (FB) para 44: ‘‘two competing elements …[into] play in section 3(4)(b), namely the applicant’s right to have the merits of the case tried by a court of law, but also the right of the respondent as an organ of State not to be unduly prejudiced by delay beyond the statutorily prescribed limit for giving notice. The Act fetters the applicant’s right to have the merits of its case tried in court by prescribing the three requirements to be met before its case may be heard.’

[7] 2012 (2) SA 1 (SCA) at para 14.

[8] Rance para 11

[9] [2008] ZASCA 34; 2008 (4) SA 312 (SCA). Hereafter referred to as ‘Madinda’.

[10] Para 8.

[11] Para 10.

[12] Rance para 38.

[13] Madinda para 12.

[14] Rance para 35. See Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC) para 22. See also HL v MEC for Health Free State para 44.

[15] (779/2019) [2020] ZASCA 119 (1 October 2020). Hereafter referred to as ‘Roux’.

[16] Roux para 29. See also Madinda para 14; Rance para 39.

[17] Madinda paras 14 and 20.

[18] Rance para 38

[19] Madinda para 15, emphasis added.

[20] MEC for Education, KZN v Shange 2012 (5) SA 313 (SCA) para 22.

[21] Madinda para 16 referring to United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E-G.

[22] Rance para 35. See also Van Wyk v Unitas Hospital para 20.

[23] Case no 204/06 (10 June 2007) para 6.

[24] Madinda para 12.

[25] Roux paras 32-35.

[26] Paras 36 and 37.

[27] We were referred to Madinda para 20.

[28] See para 11 above.

[29] (285 & 284/2014) [2014] ZAECBHC 6 (27 May 2014).

[30] See para 17 above.

[31] See Lackay para 25.