Poswa v Executive Director, Independent Investigative Directorate and Another (4468/2014) [2016] ZAECGHC 48 (2 June 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 4468/2014

Date heard: 21 April 2016

Date delivered: 02 June 2016

In the matter between:

SAKHELIKHAYA GRIFFITHS POSWA

APPLICANT

and

EXECUTIVE DIRECTOR, INDEPENDENT POLICE

1ST RESPONDENT

INVESTIGATIVE DIRECTORATE

DIRECTOR OF PUBLIC PROSECUTIONS,

2ND RESPONDENT

EASTERN CAPE

JUDGMENT

JACOBS, AJ

Introduction

[1] This is an application in terms of which the Applicant (Plaintiff in the main action) seeks condonation of his late service on the Respondents of the notice of his intention to institute proceedings in the main action as provided in section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 2002 (the Act)[1].

[2] Both Respondents (Defendants in the main action), being organs of state as defined in the Act and both having raised special pleas of the Applicant’s non-compliance with the notice requirement prescribed in the Act which triggered this application. The First Respondent is opposing the application.

Background

[3] The Applicant was employed by the First Respondent, when it was still known as the Independent Complaints Directorate, as the head of its Eastern Cape provincial office.

[4] While the Applicant was still employed in the aforesaid capacity two disciplinary enquiries were instituted against him, one in September 2009 (the first disciplinary enquiry), wherein he was charged with various counts, mainly, of fraud, or, alternatively, theft relating to travelling and subsistence allowance claims he had submitted for payment of various trips he undertook in his official capacity during the period from 2007 to 2008.

[5] At the end of the first disciplinary enquiry the Applicant was found not guilty of the main count of fraud / theft, but instead guilty of the lesser alternative charge of negligence. The said guilty finding was subsequently reversed by the Commission for Conciliation, Mediation and Arbitration (CCMA) by an award made on 26th October 2010, on the basis that it was an unfair labour practice.

[6] The First Respondent then instituted a second disciplinary inquiry on the self-same allegations in October 2010. At the conclusion of this hearing, and as part of a settlement agreement, the Applicant admitted negligence in relation to the recording of kilometres

travelled and undertook to pay back an amount of R1004.40, which he duly did.

[7] The First Respondent thereafter laid criminal charges against the Applicant with the South African Police Service (SAPS), which

originated from the same facts available to it when it instituted the two disciplinary processes. The Applicant was acquitted and

discharged in the criminal case on 20th June 2012 at the end of the state case in terms of section 174 of the Criminal Procedure Act[2]. As a precursor to the present litigation, the statutory notices were therefore supposed to have been served on the Respondents by the 21st December 2012.

Applicant’s reasons for the delay are set out as follows:

[8] During the month of August 2012 the Applicant instructed the firm of attorneys, Ntwendala Attorneys, to proceed with a claim for damages against the Respondents. Ntwendala Attorneys did not issue the required notices in terms of the Act within the prescribed period.

[9] During June 2012 up to mid November 2012 the Applicant was preoccupied with the preparations for bar examinations. Applicant submitted that when it transpired that he passed his bar examinations he then became preoccupied with the setting up of his office/chambers from early December 2012 to about April 2013. During the month of July 2014, after not being satisfied over a period of time whenever he made enquiries about the progress of his claim from Ntwendala Attorneys, the Applicant terminated the latter’s mandate and instructed his present attorneys, Malusi & Co Attorneys to take over the matter from Ntwendala Attorneys and proceed with his claim.

[10] Malusi & Co Attorneys addressed the statutory notice to the First Respondent on 11 August 2014 and the same was posted to the First Respondent on 19 August 2014. Another statutory notice was addressed to the Second Respondent on 11 November 2014 and was posted on 14 November 2014. The statutory notices were thus sent outside the prescribed time limit of six months imposed by the Act.

The First Respondent submissions on reasons for the delay:

[11] The First Respondent submitted that the Applicant appears to lay the blame entirely at the door of his erstwhile attorneys and ignores the fact that despite furnishing Ntwendala Attorneys with instructions he failed to follow up and enquire on the progress of the matter.

[12] The First Respondent submitted that it must be pointed out that the Applicant has not proved that his erstwhile attorney of record is to blame for the delay. In this regard the First Respondent submitted the Applicant has not attached any confirmatory affidavit from the said attorney explaining his alleged conduct or even giving his own version.

[13] The First Respondent further submitted that unlike an unsophisticated litigant the Applicant was at all material times a legally qualified person who knew and or at the very least ought to have known that ignorance of the law is not an excuse. The First Respondent submitted that the Applicant was content to leave his matter in the care of Ntwendala and not enquire as to the progress of his matter.

[14] Furthermore, the First Respondent contends that the Applicant has no prospects of success in the claim as there is a bona fide defence, to Applicant’s alleged cause of action, which if upheld will mean an end of the case. This bona fide defence is based on the contention that at the time the matter was reported to the SAPS there was a reasonable and probable cause for doing so and the First Respondent had an honest belief that Applicant had committed the crime of fraud.

[15] This honest belief was premised on the result of the Applicant’s false representations and or submission of inflated claims signed and certified and declared by the Applicant as true, correct and accurate and thus induced the First Respondent to act to his detriment and thus causing the First Respondent to suffer actual prejudice in the excessive amount paid to the Applicant.

[16] More specifically the First Respondent submitted that he demonstrated that he had a legal duty to report the Applicant’s conduct as well as the whole incident to the South African Police Services. This obligation the First Respondent submitted is placed on the First Respondent by the provisions of Regulation 12.5.1 of the Treasury Regulations promulgated in terms of Section 76(1)(f) of the Public Finance Management Act, 1999 (Act 1 of 1999) (“PFMA”), which provides specifically as follows:

“When it appears that the state has suffered losses or damages through criminal acts or possible criminal acts or omissions, the matter must be reported, in writing, to the accounting officer and the South African Police Service. If liability can be determined, the accounting officer must recover the value of the loss or damage from the person responsible.”

The Legal position

[17] Section 3 (4) of the Institution of Legal Proceedings against Certain Organs of State Act, 2002 (Act No. 40 of 2002) (“the Act”) provides as far as is necessary that:

“(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.

[18] The requirements set out in section 3(4)(b) are conjunctive and must be established by the applicant for condonation.[3] The standard for satisfying the court is the “overall impression” made on the Court which brings a fair mind to the facts set up by the parties[4].

Prescription

[19] The first question on which a court must be satisfied is that the debt has not been extinguished by prescription as a prescribed debt cannot be revived.

[20] Both counsel submitted and I am in full agreement that the alleged debt has not prescribed and thus the first requirement is satisfied.

Good cause

[21] The second question on which a court must be satisfied is that “good cause” exists for the failure by the creditor to give the statutory notice timeously.

[22] The Applicant is required to set out fully the explanation for the delay, and explanation must be reasonable and cover the entire period of the delay.[5] Good cause may include a number of factors which will vary from case to case.[6] The prospect of success of the intended claim plays a significant role, since strong merits may mitigate fault and lack of merits

render the mitigation pointless[7].

[23] I take note of the fact that the Applicant places the delay squarely at the door of his erstwhile attorney, Ntwendala Attorneys. In Salojee and another, NNO v Minister of Community Development[8] it was held: “There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.” and at G “If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself.” This was not done in the present case therefore the court cannot find that Ntwendala Attorneys is to blame for failing to give notice timeously.

[24] In addition in Rance supra Majiedt AJA as he was then stated in par 35: “An applicant for condonation is required to set out fully the explanation for the delay; the explanation must cover the entire period of the delay and must be reasonable.” The applicant in the present matter failed to explain the period after he set up his practice and before he instructed his present attorney, namely, Malusi Attorneys April 2013 – July 2014, a period of 14 months.

[25] The Applicant waited nearly 23 months before launching an application for condonation. This time period, where nearly half has gone

unexplained, can in no instance be regarded as reasonable. The interest of justice cannot be served if an applicant, who is out of time in any event, waits nearly 23 months to launch the condonation application. The lack of urgency is exacerbated by the Applicant

giving no explanation for a period of 14 months.

Prospects of success

[26] Prospects of success, which play a significant role, is one of the factors to be taken into account when considering good cause.

[27] In Rance supra it was held at para 37“…that the court must be 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.” Even more so where a further delay of 14 months has not been explained at all.

[28] The Applicant did not set out in his supporting affidavit the prospect of success. Even after learning that the first respondent, in the answering affidavit, takes issue with the failure to address the prospects of success, the applicant still does not address the prospects of success. The Applicant indicated that the prospect of success is not a requirement but something to take into consideration in determining if there is good cause.

[29] Having regard to the fact that the onus rests on the Applicant to show good cause the Applicant failed to satisfy this requirement.

[30] Taking into consideration that the Applicant failed to meet the second requirement any analysis of prejudice becomes superfluous.

[31] I have considered all the facts and come to the conclusion, that due to the reasons set out above, the Applicant should not be granted condonation in terms of section 3 (4) of Act 40 of 2002.

[32] I make the following order:

The application for condonation in terms of par 1 and 2 of the Notice of motion is dismissed with costs, such costs to include costs

consequent the employ of two Counsel.

______________

S. JACOBS, AJ

ACTING JUDGE OF THE HIGH COURT

Appearances:

Counsel for the Applicant: Adv. Ntsaluba SC with Adv. Mapoma

Netteltons Attorneys

118a High Street

Grahamstown

Counsel for the Respondent: Adv. Maakane SC with Adv. Ramaimela

Maseko Tilana Incorporated

29 African Street

[1] Section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 2002 Act No 40, 2002.

[2] Act 51 of 1977.

[3] Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010(4) SA 109 (SCA); [2010] 3 All SA 537 (SCA) CJ Rance, par 33.

[4] Ranches supra at para 33

[5] Ranche p 113

[6] MEC for Education, KZN v Shange 2012 (5) SA 313 (SCA) at par 15

[7] Madinda v Minister of Safety and Security [2008] ZASCA 34; 2008 (4) SA 312 (SCA) at 317 C.

[8] 1965 (2) SA 135 (A).