Mohale v Minister of Justice and Correctional Services (11416/2016) [2017] ZAGPPHC 689 (11 September 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 11416/2016

Not reportable

Not of interest to other judges

Revised.

11/9/2017

In the matter between:

R E MOHALE Applicant

and

THE

MINISTER OF JUSTICE AND CORRECTIONAL Respondent

SERVICES

JUDGMENT

Baqwa J

[1] In this application the applicant applies for condonation of his late referral of his notice of intention to institute legal proceedings in terms of section 3(1) of the State Liability Act 40 of 2002 (the Act) against the respondent.

[2] The background to the application is as follows. The applicant was driving along Thabo Mbeki Street towards Mokgophong on or about 27 June 2012 when a collision occurred between his vehicle and another vehicle. According to the applicant, the other vehicle had skipped a red robot.

[3] On 19 March 2013 the applicant was summoned to the Magistrate's Court Mokopane where he was charged for reckless and negligent driving. The matter was heard and after a number of postponements the applicant was acquitted on 19 March 2013.

[4] The applicant issued summons against the respondent for malicious prosecution, depression, loss of income and defamation of character arising out of the criminal case in respect of which he was acquitted. He claims damages in the amount of R5 million.

[5] In his summons against the respondent the applicant states that prior to the institution of the action he gave the respondent a notice in terms of section 3(1) of the State Liability Act as amended.

[6] It is common cause that the aforesaid notice was served out of time, hence this application for condonation of late service of the notice.

[7] The respondent opposes the application to condone the applicant's non­compliance and has filed an opposing affidavit.

[8] The respondent submits that the notice in terms of section 3(1) is a statutory requirement and non-compliance therewith should lead to a dismissal of the application. He further submits that the explanation for bringing this application is inadequate. Thirdly, the respondent submits that the Court should consider the prejudice that the respondent will suffer if the application is granted in favour of the applicant.

[9] Section 3 of the Act provides as follows:

"(1) No legal proceedings for the recovery of a debt may be instituted against an organ of 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 the legal proceedings in question; or

(b) the organ of state in question has consented in writing to the institution of that legal proceedings –

(i) without such notice; or

(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2)

(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.

(3) For purposes of subsection (2)(a)-

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts

giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and

(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.”

[10] The applicant states in his affidavit that he experienced some difficulties in obtaining a transcript of the trial record which he needed in order to decide whether to lodge a claim against the defendant. He states that he was given incorrect case numbers by iAfrica Transcriptions until he eventually obtained the correct case number being 8313/12 from the Head Control Prosecutor in Mokopane.

[11] The applicant states that it was only after receiving the transcript that his attorney was able to serve a notice of intention to institute legal proceedings against the respondent. He further avers that there were no grounds for charging him for reckless and negligent driving and that the prospects of success in his civil claim are good.

[12] What the applicant says is directly contradicted by the respondent who states that the applicant's own version established a prima facie case in light of his admission in his statement that he had to accelerate in order to cross a yellow robot.

[13] The respondent submits that the applicant was significantly non-compliant in that he only issued summons approximately two years and three months after his acquittal and that at the time of issuing summons no application for condonation had been filed by the applicant.

[14] It is common cause that the applicant was non-compliant with the requirements of the Act and that what this Court has to establish is whether the applicant has set out sufficient grounds to persuade this Court to accept his explanation for his delay and to condone his omissions.

[15] It is also common cause that the present application was only launched during, on or about 23 February 2017 which is approximately

three years since the cause of action arose.

[16] In Standard General Insurance Co. Ltd v Eversafe (Pty) Ltd 2002 (3) SA 87 (W) at 93 the Court stated as follows:

"The party asking for condonation must provide a full, detailed and accurate account of the reason for the delay to enable the Court to understand and assess such delay. If the non-compliance is time related, the date, duration and the extent of the problem that occasioned such delay, should be set out."

[17] The notice in terms of section 3(1) of the Act was served on 7 January 2016, approximately some two years and nine months after the cause of action arose.

[18] The applicant fails to state the date and time when he approached the State Prosecutor to get information pertaining to his case. He further fails to disclose to this Court why the information he sought was necessary for the issuing of section 3(1) notice against the respondent.

[19] The fact of the matter is that the applicant was an accused at the trial in the court a quo. The case number would have been known to the court officials and it is self-evident that a simple enquiry on the day by the applicant would have yielded the desired results.

[20] The basis of the applicant's claim is depression, loss of income and defamation of character. These alleged outcomes were known to the applicant at the time of his acquittal. Moreover, none of them were matters in respect of which the transcript of the case was necessary. Therefore, this really gives a lie to the applicant's explanation that he needed the record of the case to enable him to decide how to proceed.

[21] It is also not clear from the applicant's affidavits as to when and where he approached the Prosecutor for a case number. Not only is the applicant's founding affidavit lacking in these essential averments but there is further no correspondence or e-mails annexed to the summons or condonation application.

[22] In Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (para 6) condonation was discussed and referred to in the following terms:

"Condonation is not to be had merely for the asking; a full detailed and accurate account of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess responsibility. It must be obvious that, if non-compliance is time related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out."

[23] As already indicated above it does not seem in the present case that the applicant put sufficient detail before the Court with regard to the date, duration and extent of the obstacle, namely, the difficulty in obtaining the court record.

[24] As already alluded to (supra) it does not even seem that a transcript of the record was necessary in order for the applicant to take the necessary steps to comply with the Act.

[25] It therefore seems that what we are dealing with here is what was referred to in Darries v Sheriffs Court, Wynberg 1998 (3) SA 34 SCA at 41 D where the Court said:

"It is trite that where non-compliance of the rules has been flagrant and gross, a Court should be reluctant to grant condonation whatever the prospects of success might be."

The manner in which the applicant has proceeded with his application indicates a person who is not focused or anxious to pursue his own application.

Prejudice to the Respondent

[26] The respondent claims that the prejudice he would suffer outweighs that of the applicant in the event that the applicant succeeds in his application. The respondent submits that he will suffer prejudice because the Prosecutor who was dealing with the matter in the court a quo .has since left his employment and cannot be traced.

[27] In my view the determination of this matter revolves around the failure of the applicant to put sufficient facts on the table. The delay can be put squarely at the applicant's door. The legislature specified the period of compliance for a reason, namely, to ensure that all the resources and evidence must still be available at the time of suit. Individuals ought to be prevented from raking up litigation in matters that are on the point of prescription and condonation ought to be granted only in cases which are properly justifiable on the facts and the law.

[28] In the result I make the following order: The application is dismissed with costs.

________

S. A. M. BAQWA

JUDGE

OF THE HIGH COURT OF SOUTH AFRICA

Heard on:

11 September 2017

Delivered on:

11 September 2017

For the Applicant:

Advocate I. M. Bredenkamp SC

Instructed by:

Chari Naude Attorneys

For the Respondents: Advocate C. Lithole

Instructed by:

The State Attorney